Friday, March 28, 2014

Indiana Appellate Attorney [Russell B. Cate] Incompetence can Ruin your Child Custody Case

28 March 2014

I received an email yesterday from a mother who filed a pro se appeal to the Indiana Court of Appeals about a week earlier. She was concerned that the father's attorney had filed a motion to dismiss her appeal. I believe her concerns are overstated as the motion filed by Russell B. Cate of Campbell Kyle Profitt LLP is without merit.

Coincidentally I posted “Why a Competent Attorney is a Must or How to Stay in Prison” just four days ago where I detailed the absurd failings of an attorney filing an appeal. Russell B. Cate seems to be on his way to upstaging the wholly incompetent Thomas F. Little of Power, Little, Little, & Little in Frankfort, Indiana. The crux of Cate's support for his motion is that the petitioner failed to file an Appearance with the Indiana Court of Appeals pursuant to Rule 3.1 of the Indiana Rules of Trial Procedure. Well hold on to them there horses Cowboy Cate. I have a few points to make about this motion. To begin with if you are going to play Black Jack don't bust out the rules for Texas Hold 'em.

As prudent members of a society I feel that we are all obligated to look out for each other, alert those around us to hazards, and do what we can to protect our fellow man from harm. So, after I finished laughing following my perusal of the motion I came up with these additional thoughts which I freely share with you.

Respondent [Cate] has failed to understand or is attempting to confuse and frustrate the court in applying the Indiana Rules of Trial Procedure to a matter initiated pursuant to the rules of and is properly before the Indiana Court of Appeals.

Indiana Appellate Rule 16 provides that “[t]he filing of a Notice of Appeal pursuant to Rule 9 or Notice of Expedited Appeal pursuant to Rule 14.1 satisfies the requirement to file an appearance. Respondent in his Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court clearly demonstrates no injury from his unfounded belief that Petitioner was required to file an appearance in that he includes Petitioner's pro se service address in that document.

Regardless of Respondent's contention that Petitioner in this cause was required to file an Appearance pursuant to the Indiana Rules of Trial Procedure contemporaneous with the Notice of Appeal filed with the Indiana Court of Appeals dismissal would nonetheless be unwarranted.

Dismissing an appeal may be warranted where an appellant fails to substantially comply with the appellate rules. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). However, the court prefers to resolve cases on the merits. Id. Mother did comply with the appellate rules and has not been ordered by the appellate court to supplement her filing with an Appearance. Such an order is generally presumed to be a prerequisite to entertaining a motion for dismissal.

“If an appellant inexcusably fails to comply with an appellate court order, then more stringent measures, including dismissal of the appeal, would be available as the needs of justice might dictate.” Johnson v. State, 756 N.E.2d 965, 967 (Ind. 2001).

Again, Respondent's fallacious argument aside, the courts have been reticent to award attorney fees in appellate cases except in the most egregious of circumstances. “A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious.” Manous v. Manousogianakis, 824 N.E.2d 756, 767-68 (Ind. Ct. App. 2005).

Respondent's motion is replete with inaccuracies, is meritless, and was brought in bad faith for the purpose of harassment, vexatiousness, or delay. Respondent's motion should be denied in its entirety. Respondent's Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court should be dismissed and the Respondent be admonished for his vexatious filing. Notice as with the recent posting regarding Mr. Thomas F. Little I refer to the actions of the attorney as the party – the Respondent – because the lawyer has no skin in the game. When you employ an attorney to represent you then you have entrusted that attorney with the decision making authority that you relinquished.

This is the hazard of hiring attorneys from firms like Campbell Kyle Profitt LLP or Power, Little, Little, & Little. If you want to be well represented in a child custody hearing or on appeal them it may be wise of you to facilitate the knowledge of someone who reads every child custody decision by the higher courts and knows who are the competent and incompetent attorneys in Indiana. If you would like for me to teach to you the procedures for appeal, how to do research and how to make cogent argument as well as follow the rules then contact my scheduler.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Tuesday, March 25, 2014

Jim Holden Candidate for Boone County Superior Court: In His Own Words

Update 29 April 2014 - County Prosecutor Disciplined by the Indiana Supreme Court for Drunk Driving is a Candidate for Judge of an Indiana Superior Court

25 March 2014

Jim Holden is a Boone County attorney who, as he says, like most attorneys has always been interested in being a judge. When he heard that the Boone County Superior Court II was going to be vacated by Judge Rebecca McClure he thought it would be a good opportunity to pursue that interest. As that court handles many criminal and small claims cases he says it would be “a good fit for me.” That is because Jim had nearly 10 years of experience as a Judge Advocate, the same position now Indiana Supreme Court Justice and former Boone Circuit Court Judge Steve David held, while serving in the Army Reserve and the National Guard. Additionally he provided legal assistance to military families with administrative matters, domestic relations, and drafting documents.

Mr Holden says that as a judge he will draw on his years of experience in the Army and also working in the consumer protection division of the Office of the Attorney General under Steve Carter. As we talked for about an hour I kept feeling this sense from Jim that our elected officials, particularly at the federal level, do not embrace and revere the US Constitution and the Indiana Constitution as he does. Most notable is his discontent with a judiciary that “tries to write the law rather than interpret it” which is known as judicial activism.

His objective as a superior court judge would be to provide a service to the people. In following with his service under the state attorney general combined with his legal assistance to military families he aspires to provide the patience and understanding to help self-represented litigants feel comfortable make their way through the court room processes. While acknowledging that he will not be able to sit on the bench and advocate for any party before him he will follow the procedural process and the law the best he can while “respecting the rights of litigants.”

Jim is an adjunct professor at the McKinney Law School [IUPUI] and would like to continue to perform that service while serving as a judge. I detected a sense of pride and enthusiasm in Jim's voice as he talked about his students that have become attorneys and the successes that they have had in the legal field. He speaks of wanting to mentor to young attorneys.

When it comes to the arena of family law Mr Holden has not been in private practice in that area but as I mentioned earlier he did assist military families through divorce, child custody and other domestic relations matters. He acknowledges that “emotions run high” in child custody cases but that while those parents with acrimony are the hardest to manage their attorneys may mitigate that while he, as a judge, can ensure that self-represented litigants can be heard by facilitating the due process to which they are entitled. His overarching goal is to “help make that smoother.”

People come to the Boone Superior Court II for a variety of reasons which include those family law matters as well as the entire range of criminal offense and even traffic cases. When I asked Jim about societal ills and if he feels that America is in as much distress as some social activists would have you believe he felt problems are more localized rather than a general societal decline. Particularly he noted that the Indiana General Assembly has allowed county courts to implement veteran's treatment court program within their existing courts. This would be a specialized court for military veterans charged with low level criminal offenses such as substance abuse and other non violent offenses that would offer much more intensive probation monitoring and a veteran mentor. Jim explained that experiences of combat veterans can lead to self-medicating through substance abuse and that “recently returning veterans from Iraq and Afghanistan experienced traumatic brain injuries which are affecting them in different ways.” As someone who experience a TBI when I was struck on my bicycle by a high speed vehicle I am intimately aware of the impact it can have. For me there was a loss of patience, loss of impulse control, and within a year I was serving time in federal prison although I had no prior criminal experience. The veterans courts are successfully existing in several other Indiana counties.

Jim also noted that in general “too much government” causes problems for people. He finds that the welfare state which has “replaced family with money and programs” is to blame for some of the cases. I have observed and the research continues to substantiate that the breakdown of family is distressful for youth and the parents who may be embroiled in the legal system. I have talked to numerous federal legislators who all tell me that it is important for parents to consistently follow parenting time orders. Yet the federal government is willing to spend over seven billion dollars annually to assist states in criminally prosecuting parents, mostly unemployed fathers, who are behind on child support payments. However, the federal government allocates exactly zero dollars to assist in the enforcement of parenting time orders although parenting time compliance has consistently been shown to provide better outcomes for children and increase child support payment compliance. It's as though government is manufacturing adversities to bring people into the court system.

Not all is dreary and as downtrodden as I may see in my practice. Mr Holden feels that the judiciary can have a positive impact upon the people who come before it as well as the community. Consistency he says can instill trust in the process so that people will know they are going to be treated fairly. I asked about the connectedness between judges, attorneys and certain citizens in small towns. Jim noted that he is “not entrenched in Boone County politics” and that he can bring the best of his experience in other counties and the Army to Boone County residents.

Jim wants to “apply law to people equally, be a positive role model, and get out in the community” to interact with people first hand so they can experience a judge as a neighbor and learn about his role. That role for him will be one of judicial restraint where he hopes to fairly apply the law while demonstrating patience for the parties, especially the pro se [those without an attorney], and building trust in the court.

Jim is a member of the Federalist Society - an organization for lawyers which proclaims “We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. You may read more about his background and campaign by visiting his campaign website

Finally, I leave you with the closing thoughts of Jim Holden in his own words:
“My entire career in the law has been one of public service, including as Deputy Attorney General, U.S. Army Judge Advocate, and university professor.  I hope to bring the unique experience I have gained as both a civilian and military lawyer to work for the citizens of Boone County as Superior Court Judge.  I will strive to preside over a court that is efficiently managed and in which litigants can be confident they will be treated fairly and according to the law.”

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Monday, March 24, 2014

Why a Competent Attorney is a Must or How to Stay in Prison

24 March 2014

In doing research I often come across a tid-bit of information that is not what I was seeking but is serendipitous. Such is the case with the appeal of a criminal conviction and the guidance provided by the Indiana Court of Appeals when it comes to effective representation. The case I review today clearly demonstrates that it is imperative that when seeking legal counsel to represent you that you understand the dynamics of the representation.

In child custody cases I feel that attorney and counsel selection is more significant than parental actions. This is why I have repeatedly written about this matter, why I have developed an initial questionnaire for prospective attorneys and why I implore parents to have me conduct attorney interviews.

This point is so important that I want to stress it again. The counsel you get and the subsequent progression of your case is more important than the actions that either you or the other parent have undertaken. Once you enter the realm of the courts you are subject to a litany of rules and procedures. If allowed, almost as by design, the cases progress unbearably slow. It has not been unusual for me to be involved in cases than proceed for three years on one motion including appeals. Which brings me back to the crux of today's issue - an appeal.

In Jason Frye vs State of Indiana, Frye appealed his conviction in Clinton Circuit Court of six counts of Class D felony possession of child pornography. Frye raised the following issues as error:
I. Whether the trial court abused its discretion in admitting four-inch by six inch prints of photographs recovered from Frye’s cell phone with a 3.2-inch screen;
II. Whether the trial court abused its discretion in admitting evidence of Frye’s battery of his girlfriend;
III. Whether the trial court abused its discretion in admitting evidence of Frye’s failure to pay child support;
IV. Whether the State presented sufficient evidence to support Frye’s conviction; and
V. Whether the trial court properly instructed the jury on its duty to reconcile evidence based on a presumption of innocence.

I have provided a link to the decision so you can read just how illogical Jason Frye actually is and the numerous opportunities to avoid conviction which he simply threw away by committing additional moronic acts. More to the point of attorney selection though is the ability of an attorney to do what the lay person lacks the propensity to navigate with ease – the court rules. Frye's first point of contention – the size of the photos – was addressed in his brief by stating:
By the State adding size to the pictures, they distorted the original product and presented a fabricated version of the evidence to the jury. Larger pictures of any type of pornography have the ability to invoke more stimulus, sexual arousal and desires from any one person. These larger photos were improperly given to the jury for them to decide if they meet the statutory definition of child pornography and sexual conduct.

I agree with Frye on this contention although I don't think it affects the underlying nature of the offense as the images were not distorted. The appellate panel wouldn't typically get an opportunity to opine because of Frye's rule violation. However, as the court stated it chose to decide on the merits anyway:
First, we note that Frye fails to provide any statement of the applicable standard of review. Therefore, Frye has waived this argument on appeal. See Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001) (noting that failure to comply with Indiana Code Appellate Rule 46(A)(8)(b), which requires that an appellant’s brief include a statement of the applicable standard of review for each issue, results in waiver of that issue for appellate review). In his reply brief, Frye incorrectly characterizes the standard of review for rulings on the admission of evidence as de novo. Waiver notwithstanding, we disagree with Frye’s assertion that the trial court erred in admitting the enlarged prints of the photographs.

Frye next challenges the trial court's admission of evidence of his battery on the girlfriend. The panel wrote:
A claim that the trial court abused its discretion in admitting evidence may be presented on appeal only where there is a timely trial objection stating the specific ground of objection. Ind. Evidence Rule 103(a)(1). By failing to object to the evidence now challenged, Frye denied the trial court the opportunity to make a final ruling on the matter in the context in which the evidence was introduced. Consequently, Frye has failed to preserve the right to claim evidentiary error on appeal. See Raess v. Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008).
We further note that Frye has again failed to provide a statement of the standard of review, thus waiving this argument on appeal. In his reply brief, Frye incorrectly designates the standard of review as “plain error.”

In reading the opinion one learns that the battery was a result of the girlfriend purportedly planning to contact the police and provide the cell-phone as evidence to them from which Frye then allegedly committed battery upon her. Thus, it is without doubt that it is admissible evidence. Contrarily Frye next asserts that the court erred by admitting evidence of his failure to pay child support which has absolutely nothing to do with the underlying charge. This demonstrates not only the ethical shortcoming of the prosecutor but a poor decision which opens the case to attack on appeal and may evoke sympathy from the jurors. The appellate panel opined that it was an error for the court to admit that evidence but given the totality of the evidence presented that this amounted to harmless error.

Frye's fourth argument is that the jury reached a verdict that was not supported by the evidence. He claimed:
The jury improperly came to the conclusion that the pictures found on the Defendant’s phone met the criteria for child pornography through depiction of sexual conduct. Therefore, the Trial Court’s decision should be reversed as the photographs on the Defendant’s phone are not child pornography as prescribed by I.C. § 35-42-4-4.

Once again though Frye failed to provide any statement setting forth the appropriate standard of review and cited to no relevant legal authority. The panel therefore ruled that pursuant to Indiana Appellate Rule 46(A)(8), Frye had waived this argument on appeal. See Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999) (providing that failure to support each contention with citation to relevant legal authority results in waiver of that issue on appeal); see also Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001). Regardless, the argument was without merit. Ind. Code § 35-42-4-4(a)(4) provides that photography which depicts “exhibition of the uncovered genitals or female breast with less than a fully opaque covering of any part of the nipple”

The funniest part of this contention is the panel's reaction to Frye's legal theories. They first say “Frye inexplicably frames this argument as an admission of evidence issue and names the standard of review as de novo.” Next, the caselaw that he cited, Delagrange v. State, 981 N.E.2d 1227 (Ind. Ct. App. 2013), was transferred to the Indiana Supreme Court prior to the filing of his brief and thus it had been vacated and therefore was no longer legal authority. They close this argument with “We admonish counsel to correctly indicate the procedural status of all cited cases.”

Finally, in a 'where-were-you' crescendo to this ridiculous appeal was the jury instructions argument. Frye argued that the trial court erred by refusing to deliver the following jury instruction tendered by his counsel:
If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the Defendant, and the other to his innocence, it is your duty, under the law to adopt that interpretation which is consistent with the Defendant’s innocence, and reject that which points to his guilt.

This instruction is spot on. In fact, there is caselaw based on the rule of lenity that says if there are two varying interpretations and one points to not guilty then that is the position that must be applied to the defendant. Clearly the trial court should have tendered this instruction to the jury. But in a final humiliating blow to Frye's attorney Thomas F. Little of Power, Little, Little, & Little in Frankfort, Indiana the panel concluded:
A reading of the transcript of the trial court proceedings, however, indicates that the trial court did in fact deliver the instruction requested by Frye, with no material variation, and nearly word for word. Therefore, Frye’s argument concerning the instruction at issue is moot.

The primary role of the attorney is to deliver the case to the trial court, or as in this case the appellate court, consistent with the rules of the court. It is not a difficult task. I do it regularly and proficiently with no law school training and not having passed the bar exam. Secondary to presentation of the case is development of the case and formulation of the evidence consistent with sound legal theory. Finally, there is the realm in which I provide the greatest assistance which is finessing the client into focusing attention on the children, harmonizing all aspects of life with the custody litigation, maintaining composure and being best prepared for a court appearance. Additionally, I also work with attorneys on formulating the issues, developing strategy, writing pleadings, and coordinating presentation of evidence. As you can see from this case all of the preparations and finessing in the world are for naught with an attorney who doesn't make proper objections at trial, can't even identify the appropriate standard of review, and argues an issue that is moot.

If you want to have a successful resolution to your child custody case while using an attorney then you best make sure that you trust that attorney to have the care for, dedication to, and necessary skills to advocate for your child. As you see from the appellate panel's opinion they attribute everything to Frye, not Mr. Little. This is because when you retain an attorney to represent you then your voice is gone and your attorney now speaks for you.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Friday, March 21, 2014

2014 Indiana Child Support Guidelines Amendments - Insurance and Health Costs coverage

21 March 2014

2015 Indiana Child Support Guidelines
review scheduled for public comment

The Domestic Relations Committee [DRC] of the Indiana Judicial Center met in regular session today to discuss the process of revising the Indiana Child Support Guidelines. Dr Betson appeared and presented to the DRC on the particular subject of the Health Costs coverage.

In the year 2008 the federal government issued regulations instructing states that their child support guidelines should address “how parents will provide for the children's health care needs through health insurance coverage” or by providing for the health care costs.

Under the Patient Protection and Affordable Care Act 111-148 and the Health Care and Reconciliation Act 111-152 families are expected to pay between 2% [income <133% of FPL] and 9.5% [income >300% of FPL] of their income for coverage based upon income. Coverage at these levels is based upon a 30% co-pay.

The law divides coverage plans into four categories based upon cost sharing: Platinum 10%; Gold 20%; Silver 30%; and Bronze 40%. As applied to the CSOW this cost sharing – Uninsured Health Care Expense Calculation – allocates the portion of that 10-40% range for each parent. The fee for the coverage is calculated in the CSOW under section 7 which also includes child care expense and parenting time credit.

The Act provides for subsidies based upon income when a Silver or higher plan is purchased. For those earning 100-150% of the FPL their expected cost share is 6% which rises to 30% for those earning over 300% of the FPL. Judicial officers and parents will need to consider the expected medical outlays for the children. If outlays are expected to be high then a Platinum or Gold level plan should be purchased. If outlays are expected to be low then a Silver or Bronze level plan should be purchased although the Bronze is not subsidized.

Judicial officers and parents will also need to consider which parent is defined as the custodial parent for health insurance premium purposes. This may not be the same as what a court orders The IRS defines custodial parent based upon overnights. IRS Form 8332 allows for transfer of the exemption for child to align with the parents agreement or order of the court.

In a Healthy Perspective on Health Care I wrote about the dissonance created when a person who envisions himself as healthy paying for sick care coverage which goes unused. As the cost outlays accrue this dissonance creates sickness in the person experiencing the dissonance as to alleviate that stress. Thus, purchasing coverage causes illness. Those who hold such a belief may be exempt from the law.

The law exempts certain individuals which include those who are;
~ incarcerated, and not awaiting the disposition of charges;
~ a member of a recognized religious sect with religious objections to insurance;
~ not required to file a tax return because their income is too low; and
~ anticipated to spend more than 8% of household income to obtain the lowest-priced coverage available.
Thus, someone who is a Christian Scientist is exempt from the law.

The Indiana Child Support Guidelines, unlike the Obama health tax, does not mandate medical care coverage. As initially stated the feds require that the states provide a mechanism by how the parents will share the cost of providing health insurance coverage. ICSG section 7 provides that the “court shall order one or more parents to provide private health insurance when available to the child at a reasonable cost.” The federal coverage mandate essentially removes the availability clause within Guideline 7 as coverage is available to everyone now. The second and remaining test the becomes “reasonable cost” which is essentially removed by the federal mandate as the subsidy provisions are based upon what is presumed to be a reasonable contribution by policy holders.

In In re: Paternity of S.A. the Indiana Court of Appeals addressed the cost share and reasonableness of coverage fees. This was more recently addressed by the Indiana Supreme Court in Johnson v Johnson last year. The DRC will need to provide guidance to judicial officers on how to calculate the cost of insuring the children based upon the inclusion of the parent in the plan, which plan should be chosen, and the premium subsidy which gets paid directly to the insurer.

Overall, applying the Obama Health Tax plan to the Indiana Child Support Guidelines is going to require a greater examination of available plans, the cost for those and the expected outlays for the children. A new support calculator will likely be generated for this. The most probable method of calculating parents' contribution towards medical care will be actual premium paid.

In conclusion, the ICSG are premised upon the idea that the child should be able to maintain the same standard of living which was experienced or would have been if the parents resided in an intact family. That means that if coverage didn't exist prior to divorce then it does not necessarily need to be provided following. The Obama Tax does allow for a penalty tax to be assessed rather than pay the premiums for a sick care policy.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Thursday, March 20, 2014

The forthcoming ramifications of Artificial Humans and Child Custody decisions

20 March 2014

In the realm of child custody policy I am always looking to trends in biology, sociology, psychology, and technology that may affect parenting capacities, opportunities, and behaviours. A few years ago I introduced the concept of electronic communications to the panel of judicial officers that were responsible for writing the Indiana Parenting Time Guidelines. Revisions published in 2013 include the electronic communication elements. I now believe that a major evolution in parenting is at our threshold which will significantly affect child custody policy and decisions. This is a further expanse of the advancements in electronics but also a continuing metamorphosis in gender dynamics.

Today I present to you my speculation that the introduction of the Daddy-Bot, Mommy-Bot, and Nanny-Bot will soon be upon us. By this I mean that an artificial intelligence interface implanted into a domestic robot with human like figures will be able to replace parents. While this may only to now have been the subject of movies like 2001, Bladerunner, iRobot, and Artificial Intelligence contend that they will soon be a part of our reality. Domestic robots with human personalities will be available to a high end consumer market. They will likely come about through military development as part of reconnaissance programs and later be adopted into medical settings to provide care to children and adults carrying easily transmitted contagions or who are highly susceptible to infection from lowered immunity or burns and similar trauma.

Robotics and automation are already in use throughout a variety of industrial applications. These technologies offer huge advantages over humans. They are punctual, follow directions, rarely make errors, don't bitch and complain, don't file lawsuits for any number of grievances, easily adapt new technologies, and rarely miss a day of work. Androids are already being used in Japan as interfaces with humans to provide assistance such as those “manning” help desks or as receptionists. As advances in robotics and artificial intelligence progress it is only a matter of time before androids that develop interpersonal relationships with family members start populating our households.

Consider that in December of 2013 at Bologna, Italy The European Conference on AI and Law was presented in conjunction with the workshop Social Intelligence and the Law. Presenters identified that current social intelligence and the law does not focus specifically on the artificial, technical, cultural, economic and political interfaces that the emergence of Web 2.0 and 3.0 fosters and anchors. Promoters further identified that the “aim of this joint Workshop is to discuss how social intelligence approaches can shed a new light on AI and law, legal theory, argumentation, conflict resolution, the semantic web, and normative multi-agent systems. This can be done in all steps of the legal process —drafting, contracting, judging— and all uses of social and legal norms —applying, arguing, implementing and enforcing the law.” They also acknowledged that “there is an ongoing discussion about modeling the evolving concept of law within the new environment of the Internet of Things and the new governance and ethical challenges” - data protection, security, identity etc.[fn1]

Likewise, read this synopsis of a recent workshop on artificial intelligence.
This full-day workshop offers a platform for researchers working on and with emotion representations and modelling for Human-Computer Interaction (HCI) systems. Emotion representations and models are often both modality and discipline specific and hence hardly interoperable. Currently, several solutions on incorporating emotions in HCI systems exist; however, these solutions depend heavily on the scope, application and modalities used. The applied concepts tend to be highly specific and layer dependent, often lacking universality and interoperability. The workshop encourages the discussion of both technical and theoretical approaches to emotion modelling and representations in order to aid in the development of efficient, verifiable, interoperable and applicable emotion models for affective systems.[fn2]

In child custody matters the maternal preference, based upon the tender years doctrine, has been abandoned. It has long been established that it is erroneous to presume that a mother should have custody of her children simply based on the nature of the mother/child relationship.[fn3] However, in most situations a two-adult household is preferred to a single parent household[fn4] although mothers who introduce a series of different men into the household may be found to be unfit.[fn5]

I imagine that a company like Apple will bring domestic androids to the consumer market or at least the “brains” and connectivity features. I envision the “Nanny-Bot” being an android with AI features that develops interpersonal relationships with household members and adapts to any changing dynamics without complication. The eyes function as 3-D cameras which can be directly accessed through a web or iPhone application. The unit's nose would function as a smoke, carbon-monoxide or other airborne hazard detector. It could automatically connect itself to emergency dispatchers who could manually over-ride the unit's functioning and use it to explore the residence for the source of the offending agent. The unit could also act as a security agent, patrolling the house or property while performing domestic chores such as lawn mowing, vacuuming or cooking and alerting household members when an unrecognized person comes into view.

In addition to being a monitoring agent the android could assist in discipline by being an interface between the absent parent and the child. The unit could provide the pre-programmed responses in a manner that is not hostile, abusive or off-base. Their motors will be attenuated to be able to grasp, restrain, lift or otherwise physically interact with a child while not causing injury. It could effectively interpret and respond to the child's emotional expressions and utterances. This technology began being developed in the 1970's and is used by advertisers now. Emotient, a University of California San Diego application, has its algorithm identify joy, sadness, anger, surprise, fear, disgust and contempt. Through built-in webcams it is used to read viewers responses to internet content and advertisements.

When considering whether an android would be deemed an acceptable replacement for the actual parent you may initially reply, “No!” but I want you to think about the realistic possibilities. A Daddy-Bot or Mommy-Bot could be programmed with the responses to a 1000 point questionnaire completed by the absent parent that would help it replicate attitude, beliefs, behaviours, and mannerisms. Further lifelike replication could be enhanced by the android analyzing recordings of the absent parent to fine-tune vocal inflection, tone, and volume while also learning gesticulation and facial expressions.

Additionally, the absent parent could wear a body suit and goggles that would be connected to the android through an internet link. The absent parent would be able to directly manipulate the Daddy-Bot or Mommy-Bot and speak to the child through it using his or her own voice. It could physically interact with the child by giving hugs, helping to assemble building block toys like Legos, and even pushing a child on a swing. Strength limiters on the unit would prevent the user parent from being able to physically harm the child.

There is a dichotomy in motivations in which such a technology could be used which would involve privacy and parenting rights. A non-custodial parent could purchase and use the android as a method to gain greater access to the child. The user parent could be the caretaker when the home parent is absent as well as just assisting with regular daily activities such as homework and being part of dinner table discussions. This technology would be useful for a parent who may be incarcerated or has been restricted to supervised parenting time.

Conversely, the home parent could purchase the unit as a means to facilitate the other parent's parenting time without the child leaving the home. This could be useful in situations where a young child has parents separated by a great distance. As a parent, practitioner, or policy maker ask yourself; is it better to have a child who is under age five years traveling by airplane from the west coast back to Indiana for brief visits or should those be limited to the summer and winter breaks with a Daddy-Bot or Mommy-Bot used as the parenting time interface in-between those breaks.

When this technology becomes common and accessible to the consumer it is going to find it's way into the child custody arena. As you can see it could be very useful and have its greatest benefit when parents are cooperative. It could also be used for parents who have been deemed likely to physically harm the child. However, the user parent could visually inspect the child's residence. This raises the issue of the parent's right to privacy in his or her own home and whether information obtained through the use of the android would be admissible evidence in a contested proceeding. It would also be very difficult for users to ensure consent of third parties who may come into contact with the android, especially if it is used mobile — that is, if it is used outside of the child's home.

The policy considerations for such technologies will by necessity be addressed in statute and court rules. Androids will be providing care to children in homes, day-care centers, and schools. A home with one parent and one android will provide distinct advantages over the home without the android and the supervision that children need. Sitters or other care providers, including the other parent, won't be needed when the parent exercising custody at that time has a meeting or doctor's appointment to attend or just needs to sleep. Instead the child will be left in the competent care of an android. An android who is constantly wired to the internet and can assist the child with homework. All the information available on a topic is accessible by the android who, using some algorithm, isolates the most relevant material and can then transmit to the child using utterances complete with gesticulation and facial expressions and also auditory and visual transmissions.

Balancing the need for a child to have intimate contact with a natural parent against the substantial safety, care and academic advantages offered by synthetic humans will be a major challenge for policy makers and the courts. It is a challenge that the best be prepared to embrace because advancements in technology and the unending hostilities between former spouses will bring it to them.

[1] Special Workshop on Social Intelligence and the Law, jointly with AICOL Artificial Intelligence and Complex Legal Systems
[2] International Workshop on Emotion Representations and Modelling for Human-Computer Interaction Systems.
[3] Brokus v. Brokus, 420 N.E.2d 1242, 1249 (Ind. Ct. App. 1981).
[4] Alan J. Hawkins, Tamara A. Fackrell, Should I Keep Trying to Work it Out? p. 76. Utah Commission on Marriage
[5] In In Re Paternity of P.R., 940 N.E.2d 346 (Ind. Ct. App. 2010), the Court affirmed the trial court's decision to modify custody of the children from Mother to Father. Mother and children had resided with a convicted felon who had been incarcerated for child battery; and Mother had applied for a Protective Order and alleged that she had been threatened by and been the victim of domestic violence by another man she had been dating.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.