Tuesday, April 15, 2014

Contempt of Court Jail Sentence when Child Refuses Parenting Time Upheld - Indiana Court of Appeals

Oh those contentious parents who make child rearing a battle ground. In one of the most vociferous battles that I have encountered as of late is that of Paula Rorer Hubbard and William Shane Rorer. Mother was found to be in contempt of Father's parenting time and appealed. The appellate panel rendered its decision on Monday 14 April 2014 in an unpublished opinion. The appeal arose under Mother's argument that she was found to be in contempt of court and sentenced to a term of confinement, suspended, based upon inadmissible evidence and an improperly imposed jail sentence. The case originated in the Warrick Circuit Court where the Honorable David O. Kelley, Judge, presided.

Mother was found in contempt for her failure to facilitate parenting time between the parties' adolescent daughter and Father which had been recently reinstated following a three year lapse. Mother and Father had one daughter during their marriage which was dissolved in April 2003. After years of disputes between Mother and Father regarding custody and parenting time, the trial court suspended parenting time between Father and Daughter in September 2010. However, on 01 August 2013, the trial court ordered that Father was entitled to parenting time with Daughter who was then fourteen years of age.

Neither parent enters this latest fray with clean hands. The trial court observed that Parents have an “inability and refusal to co-parent effectively.” The disputes are deeply rooted and the duration of the battle appears to mystify Judge Kelley as noted:
The anger they share for each other and the desire to “get the best of the other” is much more important to each parent than meeting their responsibility to rear a child together in a responsible manner. There is plenty of blame to go around for each parent and a recitation of the offenses of each parent would serve no good purpose. Collectively, however, it is clear to the Court that the child and her overall welfare are secondary to the parents’ “personal war.” Given the number of years it has gone on one would think the parents would grow weary of combat but it appears to have worsened rather than improving.

The court has recognized daughter's manipulation of the parents' conflict:
[Daughter] has recognized this conflict and seized the opportunity to “drive the bus.” What teenager would pass on the opportunity to be in complete control of her life? It is clear to the Court that her rejection of her father is pleasing to her mother and continued rejection will guarantee a continued flow of favorable treatment from the mother.

Judge Kelley exemplifies the hopelessness in the predicament that judges face with these high conflict parents. As so many have similarly expressed to me, Judge Kelley articulated his feelings in this manner:
Numerous mental health professionals have not been able to address the parents’ issues and the Court has absolutely no expectation that it can make things work smoothly. The Court has considered drafting specific measures that would direct each parent how to be an effective parent but the Court doubts that either party would follow those directives and also it is not [the] Court’s responsibility to rear the child.

The order that went into effect on 01 August 2013 was initially breached at Mother's first opportunity. On 07 August 2013, Daughter initially refused to participate in parenting time with Father. Ultimately, however, she cooperated after the police arrived. On 09 August 2013, she again refused to participate in parenting time. On 12 August 2013, Father wasted no time in filing a petition for contempt against Mother. Father alleged that Mother “has done everything in her power to attempt to discourage [Daughter] from seeing” Father.

At hearing Father produced a police officer who had responded to the 07, 09, and 14 August parenting time exchanges. Mother objected to testimony and documentary evidence of the 14 August incident arguing that it fell outside of the allegations plead two days earlier. On its face to any experienced appellate litigator this is merely cumulative evidence that demonstrates a pattern. Thus it will not be held as a basis for reversal. Mother was clearly already on notice about these allegations. The Court so found stating that the Officer’s “testimony and Exhibit A were merely cumulative of the other evidence, and any error in the admission of the testimony and Exhibit A was harmless.” Thus the Court found that “[w]e disregard errors in the admission of evidence as harmless error unless they affect the substantial rights of a party.”[fn1]

In finding Mother in contempt the Court found “from the evidence that the Mother has failed to take a positive or active role in encouraging the child to engage in visitation and is allowing the child to decide if she wants to visit.” It has already been observed that children are not to be put in the position of or allowed to make decisions regarding participation in parenting time.

The Indiana Parenting Time Guidelines provide:
If a child is reluctant to participate in parenting time, each parent shall be responsible to ensure the child complies with the scheduled parenting time. In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.
Commentary:
In most cases, when a child hesitates to spend time with a parent, it is the result of naturally occurring changes in the life of a child. The child can be helped to overcome hesitation if the parents listen to the child, speak to each other and practically address the child’s needs.
Parents should inquire why a child is reluctant to spend time with a parent. If a parent believes that a child’s safety is compromised in the care of the other parent, that parent should take steps to protect the child, but must recognize the rights of the other parent. This situation must be promptly resolved by both parents. Family counseling may be appropriate. If the parents cannot resolve the situation, either parent may seek the assistance of the court.[fn2]

Mother failed in her duty to promote a positive parent-child relationship between Father and Daughter as well as failing to facilitate Father's parenting time. Evidence elicited at the hearing indicated that at the 07 August parenting time exchange, Mother engaged in the alienating tactic of crying and hugging Daughter when Daughter was ready to leave with Father. At the 09 August parenting time exchange, Mother would not get out of the vehicle and only cracked her window to talk to Father. A family friend testified that she never heard Mother say anything that encouraged Daughter to participate in the parenting time. Father presented evidence that Mother failed to ensure that Daughter complied with the scheduled parenting

Mother and Father have harmed their daughter to the point that when after three years of absence from the life of her Father she refused to see him. Social science research shows significant benefits to children when non-custodial fathers remain involved in their lives.[fn3] Yet, both parents allowed their ongoing disdain for each other to poison the well from which their daughter drinks. Rather than provide competent nurturing and guidance to their daughter they have instilled in her that she has no intrinsic value but, rather, is only a prize to be fought over and won. Both of these parents are abusive to their daughter.

As for the contempt citation, the primary objective of a civil contempt proceeding is not to punish the contemnor but to coerce action for the benefit of the aggrieved party.[fn4] A contempt order that neither coerces compliance with a court order nor compensates the aggrieved party for loss and does not offer an opportunity for the recalcitrant party to purge himself may not be imposed in a civil contempt proceeding. Thus, Mother holds the keys to her freedom by ensuring that she complies with the court order and facilitates Father's parenting time.

In nearly six years of working nearly exclusively on high conflict parenting child custody cases I have been able to observe a patter in these relationships. The hostile aggressive parent needs a partner in the conflict and ensuing battle. That partner is the other parent. This is not to say that both parents share equally in the blame or initiate the offending actions. It must be acknowledged though, as I have seen, that both parents play a role in perpetuating the conflict. This conflict is mitigated by creating a new concept of the parent-parent and parent-child relationships which ultimately benefit the child.

notes
1] Sibbing v. Cave, 922 N.E.2d 594, 598 (Ind. 2010)
2] Ind. Parenting Time Guideline § I(E)(3) (emphasis added).
3] E.g., Marcia J. Carlson & Katherine A. Magnuson, Low-Income Fathers’ Influence on Children, In re Matter of E.M. And El.M. (Ind. 2014) citing 635 Annals of Am. Acad. Pol. & Soc. Sci. 95, 107 (2011)
4] In re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct. App. 2011).

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1 comment:

Chuck McNulty said...

It seems that small town rulings that affect the child -parent relationship are all too common. Justas common is the notion that courts act in the "true" best interest of a child. IOn reading your bio, I am interested in how you were able to effect change in the legislature to accomodate BOTH parents. As a parent who have been excised from his children, I believe only legislatuve measures have the bite to hold contemptive parents at bay. Thank you for your contributions to childrens wellbeing.