The annual Birch Bayh Lecture at the Indiana University Robert H. McKinney School of Law that was scheduled for Thursday, April 2 at 5:30 p.m. has been cancelled. Dean Andrew R. Klein of the IU McKinney School of Law issued the following statement: * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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It is with great disappointment that I announce the cancellation of this year’s Birch Bayh Lecture at the IU Robert H. McKinney School of Law, which was scheduled to take place on Thursday, April 2. We were contacted today by our speaker, Marcia Greenberger, the co-president and founder of the National Women’s Law Center, who indicated that she feels unable to speak at our school because of the recently-passed Religious Freedom Restoration Act.
I respect Ms. Greenberger’s position, though regret that we will not have the benefit of hearing her remarks. I also want to reiterate what I said publicly yesterday. The McKinney School of Law is a place where a diverse range of viewpoints can always be expressed in a civil fashion. As a part of the state’s namesake university, we take seriously our position as a leader in higher education, and we will use that position to bring together students, residents, businesses and institutions with the common goal of making Indiana a place of enrichment and opportunity. At this law school, and throughout Indiana University, everyone is welcome and valued. We will never condone or tolerate discrimination.
I join many who are concerned that the resulting national discussion of the new law has had a negative impact on our community. Regardless of what happens to this legislation, it will not change how the IU McKinney School of Law does business or treats its students, employees or guests. Tolerance, equality and a commitment to diversity will remain bedrock values of Indiana University and the McKinney School of Law.
This is unfortunate as I feel it would have been a great opportunity for Ms. Greenburg to speak to the matter of the Indiana General Assembly and Governor Pence selecting specific language to establish cult followers as a preferential class while reducing freethinkers, agnostics, and the secular community in general to an inferior class of people holding moral beliefs.
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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Tuesday, March 31, 2015
2015 Indiana University McKinney School of Law Annual Birch Bayh Lecture Cancelled
Indiana Court of Appeals upholds trial court’s application of Gender Neutral Standard in Child Custody and Child Support proceedings
On Monday 30 March 2015 the Indiana Court of Appeals delivered its opinion in S.B. v C.B. which was heard by the Honorable J. Steven Cox, Judge of the Franklin Circuit Court. The trial court transferred physical custody of the children to Father, modified parenting time, and ordered Mother to pay child support to Father. Attorneys for Mother on appeal were Andrea L. Ciobanu and Alex Beeman of Ciobanu Law, P.C. in Indianapolis, Indiana. They took a novel approach as to why the court was in error which, throughout the long history of child custody and support jurisprudence, has traditionally been the thesis of fathers’ objections which underpinned the Father’s Rights Movement.
Ciobanu and Beeman argued that “Father . . . has no ability to care for the children without significant reliance on others” and because Mother “has been the bread winner and maintained steady employment” throughout the children’s lives that the court erred in giving custody to Father and ordering Mother to pay support. Many of us have heard this argument made in court before, usually by the attorneys representing mothers. Child support proceedings would be prefaced by; “Mother has no ability to care for the children without significant reliance on others” and because Father “has been the bread winner and maintained steady employment” throughout the children’s lives Mother is best suited to provide care for the children, should be their primary custodian, and Father should be ordered to pay support for their care. It appears to me that the argument which Ciobanu and Beeman propounded to the Court is that when the standard that has been applied to men for generations is applied to women it is an error.
Mother and Father had divorced in 2006 but shortly after reconciled and two more children were born; the third in 2008 and the fourth in 2010. In 2013 they had an argument regarding text messages Mother had been exchanging with a male friend. Mother left the house, stayed at the home of her male friend, and was fired from her nursing job soon thereafter. The day after their argument, the parents agreed that Father, who was struggling financially, would relocate with the children to be close to Father’s relatives. Father and the children moved in with fraternal grandmother, and the children began attending public school locally. About three weeks after Father relocated with the children, he filed a petition to modify custody and abate child support. The trial court held a hearing on Father’s petition and issued an order granting Father primary physical custody of the children and awarding Mother parenting time but did not address Father’s request to abate child support.
At a subsequent hearing Father alleged that both Mother and Father were gainfully employed, that Mother and Father were earning $733 and $450 per week respectively, and that Father had been providing for the children without any financial assistance from Mother for over seven months. Father also reported that he was paying $140 per week in work-related childcare expenses and $43 per week in health insurance premiums for the children. The trial court ordered Mother to pay $315 per week -- 43% of her income -- in child support retroactive to the date of Father’s petition. Mother then appealed.
The panel of the Court of Appeals found that “the trial court had ample evidence from which to conclude a substantial change in circumstances had occurred since the initial custody determination and that a change in custody was in the best interests of the children.” In regards to child support payments the panel found that in “light of [the] evidence, and because the law is clear that a trial court may order support retroactively to any date from the filing of the petition to modify support, we conclude that the trial court did not abuse its discretion in ordering Mother to pay $315 in child support, retroactive” to the date of Father’s petition.
In Indiana the maternal preference is dying as quickly as efforts at a constitutional amendment to prohibit same-sex marriage and other social inequities that had long stood as the ethos of our prejudicial community. Younger judges, and more often female judges, are leading this change in attitude that mothers will no longer be handled tenderly and receive preferential treatment. Mothers and fathers are expected to provide nurturing, care and support for their children and the one who is most fit or circumstances will best contribute to the children’s well-being is going to receive the responsibility of providing for the children more of the time.
Judicial officers who have yet to embrace this modern concept of gender equity should be adequately informed of this through the effective presentation of evidence with corresponding commentary. It is not improper to question a judge’s potential or demonstrated bias.
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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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Monday, March 30, 2015
Res Judicata in a Domestic Violence Protection Order [DVPO] Indiana opinion and its application to Child Custody Modification - Abuse of Civil Protection Order Act
A Domestic Violence Protection Order [DVPO] will not stop someone who intends to harm the person I refer to as the targeted individual rather than protected person as courts often do.[en1] However, it is a law enforcement tool that may allow for interdiction of the potential perpetrator which would not otherwise be legally possible. It also inhibits the respondent’s liberty whether he or she is a likely perpetrator of Domestic Violence. It is for this reason that it is imperative that a DVPO only be properly granted. The Indiana Court of Appeals has succinctly reasoned why this caution must be observed; * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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”[A]t the state level, violation of the trial court’s protective order is punishable by confinement in jail, prison, and/or fine. Furthermore, after the trial court has issued a protective order, it is a federal offense for a respondent to purchase, receive, or possess a firearm if the protected person is his current or former spouse, a current or former significant other, or a person with whom the respondent has a child. Thus, an improperly granted protective order may pose a considerable threat to the respondent’s liberty.”[en2] [emphasis added][en3]
Vacating the Domestic Violence Protective Order
The Indiana Court of Appeals on 26 March 2015 rendered an opinion in A.A. v A.S. heard by Judge Calvin D Hawkins in the Lake County Superior Court. The DVPO case arose from the parties’ marriage. Their marriage was dissolved on 24 September 2013. Strategically, on the same day, A.S. filed a DVPO petition [“2013 Petition”] against A.A. alleging that A.A. had committed multiple acts of Domestic Violence and stalking against A.S. in 2012. The trial court granted an emergency ex parte order for protection.[en4] On 22 October 2013, the trial court dismissed the petition due to A.S.’s failure to show that Domestic Violence had occurred by a preponderance of the evidence. That should have ended the litigation on that issue.
However, on 04 June 2014, A.S. again petitioned [“2014 Petition”] for a DVPO against A.A and appeared pro se at an ex parte hearing in front of Judge Hawkins. The trial court granted an ex parte order for protection and set a hearing on the motion. On 03 July 2014, A.A., within the time limit prescribed by statute[en5], filed a motion to dismiss 2014 Petition. Judge Hawkins denied the motion to dismiss at the outset of the 28 August 2014 hearing. At the hearing, A.S. recounted many incidents of domestic abuse which occurred prior to filing 2013 Petition. The last Domestic Violence incident was alleged by A. S. to have occurred in January of 2013. When asked by counsel if there had been any incidents following 2013 Petition A.S. responded, “No, but I don’t want any more to happen.” The trial court then found that Domestic or Family Violence had occurred sufficient to justify the issuance of a DVPO, that A.A. represented a credible threat to the safety of a A.S., and that granting to A.S. a one-year protective order against A.A. was necessary to bring about a cessation of the violence or the threat of violence.[en6]
A.A. appealed citing the doctrine of res judicata.[en7] A.S. argued that the matter wasn’t settled because the dismissal of 2013 Petition was not rendered “on the merits,” as is required by the second element of the res judicata doctrine. However, the order dismissing 2013 Petition states, “The Petitioner has not shown, by a preponderance of the evidence, that domestic or family violence, stalking, or a sex offense has occurred sufficient to justify the issuance of an Order for Protection.” Clearly there was a hearing, evidence was presented, witnesses heard, and a judgment rendered on the merits. Accordingly, A.S. was barred from attempting to gain a subsequent DVPO based on any allegations of Domestic Violence prior to that previous hearing in 2013. Res judicata exists because it prevents dissatisfied litigants, like A.S., from seeking to get a different judge to hear the same matter. Trying to re-litigate before a different judge is called forum shopping. The doctrine of res judicata brings finality to litigation and reduces redundant litigation by not permitting parties who had been denied relief to re-petition in different courts.
The panel in reversing Judge Hawkins reasoned, “[t]he trial court was precluded, under the doctrine of res judicata, from granting a protective order based on incidents that occurred prior to [the previous hearing], and there were no alleged incidents of misconduct which occurred after that [hearing]. Therefore, the trial court’s grant of the order for protection was clearly erroneous.”
Res judicata
The doctrine of res judicata prevents the relitigation of a matter already adjudicated. This is the basis for the prohibition in child custody modification hearings on the submission of evidence relating to that which occurred prior to the last date that evidence was submitted in the previous custody hearing.[en8] There are however exceptions to this rule[en9] which I will not go into here but can develop in individual cases as those exceptions are fact specific. Res judicata applies when the same matter is brought before the court which had already been ruled upon and settled.
Res judicata serves the purpose of judicial economy. This rule is intended to bar the relitigation of a matter already brought to finality. That is, when a court of competent jurisdiction, including an appellate court or the underlying court on remand, has entered a final order as to the parties on a claim, demand, or cause of action the parties or their privies may not bring the same claim, demand, or cause of action to the court again.
Child Custody/Parenting Time Modification
To seek a change in child custody or parenting time orders Indiana has codified the requirements that must be met for an order to be modified.[en10] All other states have similarly done so. The purpose of this is the presumption that “permanence and stability are considered best for the child’s welfare and happiness.”[en11]
Therefore, the procedural hurdle which has been established that must be overcome is twofold; 1] there must be a substantial change in one of the enumerated factors provided for in statute, and 2] the modification must be in the best interest of the child.[en12] The modification statute provides that the court is not to consider evidence preceding the last custody hearing.[en13] There are exceptions though. It is the failure of practitioners and parents to understand the exceptions that lead to the mistaken belief that events prior to the previous hearing are off limits. The doctrine of res judicata, and more likely in child custody case collateral estoppel[en14], is not an absolute bar to presenting evidence from a prior child custody hearing. The Court of Appeals has held that it is well within the discretion of the trial court to hear prior evidence stating that prior evidence of “past behaviour was a valid predictor of future conduct.”[en15] Although prior evidence may be heard the doctrine of res judicata requires, and the Court has similarly held, that the change in the factors for considering modification of custody must have occurred subsequent to the previous hearing on custody.[en16]
Conclusion
The doctrine of res judicata provides that matters previously settled may not be re-litigated. In the case examined here it was the denial of a petition for a DVPO and, as I have explained, it is also applicable to child custody and parenting time matters. Incidents of Domestic Violence occurring prior to a previous hearing or decision may not be properly admitted unless for the purpose of demonstrating a pattern of behaviour relevant to a cause of action arising subsequent to the prior court action. In the immediate case the Court correctly applied res judicata because the matter had been settled when a prior court dismissed the claim and no new allegations had arisen.
Child custody matters however are not fully settled until the child has been emancipated. For purposes of res judicata child custody matters are resolved until there has been a substantial change in at least one of the essential factors for determining custody and parenting time. Events prior to the previous submission of evidence may be considered relevant, and appropriately admitted, so long as such evidence is connected to the change occurring following the previous submission of evidence.
Notes
[1] I avoid use of the term “protected person” because I feel that it can give the target of Domestic Violence a false sense of security in that he or she is now protected. It is still incumbent upon any person to be vigilant in providing for his or her own security regardless of any Domestic Violence issues.
[2] Barger v Barger, 887 N.E. 2d 990, 993-94 (Ind. Ct. App. 2008) (internal citations omitted)
[3] I note that the Court of Appeals uses the pronoun “him” in the example when referring to someone who is the respondent in a DVPO as a means to demonstrate the ubiquity of which abuser is used synonymous with males although perpetrators are about equally divided by gender.
[4] Indiana Code section IC 34-26-5-9(a)(1) provides that if it appears from a petition for an order for protection or from a petition to modify an order for protection that domestic or family violence has occurred or that a modification of an order for protection is required, a court may, without notice or hearing, immediately issue an order for protection ex parte or modify an order for protection ex parte.
[5] Indiana Code section 34-26-5-10(a) provides that if a court issues an order for protection ex parte or a modification of an order for protection ex parte and enjoins the Respondent from performing certain acts then, upon a request by either party not more than thirty days after service of the order or modification, the court shall set a date for a hearing on the petition. The hearing must be held not more than thirty days after the request for a hearing is filed unless continued by the court for good cause shown.
[6] Indiana Code section 34-26-5-9 provides: A finding that domestic or family violence has occurred sufficient to justify the issuance of an order under this section means that a respondent represents a credible threat to the safety of a petitioner or a member of a petitioner’s household. Upon a showing of domestic or family violence by a preponderance of the evidence, the court shall grant relief necessary to bring about a cessation of the violence or the threat of violence.
[7] The doctrine of res judicata bars the litigation of a claim after a final judgment has been rendered in a prior action involving the same claim between the same parties or their privies. Small v. Centocor, Inc., 731 N.E.2d 22, 26 (Ind. Ct. App. 2000), reh’g denied, trans. denied. The principle behind this doctrine, as well as the doctrine of collateral estoppel, is the prevention of repetitive litigation of the same dispute. Id. The following four requirements must be satisfied for a claim to be precluded under the doctrine of res judicata: 1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies. Id. MicroVote Gen. Corp. v. Indiana Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010).
[8] Indiana Code 31-17-2-21[c] provides that “[t]he court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating the the best interest of the child as described by section 8 and, if applicable, section 8.5 of this chapter.”
[9] Indiana Code Section 31-14-13-9 provides: In a proceeding for a custody modification, the court may not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described in section 2, and if applicable, section 2.5 of this chapter. [emphasis added]
If a party raises a previously litigated issue or fails to object when it is raised then that party cannot later claim error. “A timely objection is a prerequisite to appellate review,” Werner v. Werner, 946 N.E.2d 1233, 1246 (Ind. Ct. App. 2011) (quoting Trout v. Trout, 638 N.E.2d 1306, 1397 (Ind. Ct. App. 1994), trans. denied), trans. denied.
[10] Modification of custody and parenting time is controlled by Indiana Code 31-17-2-21
[11] Lamb v Wenning, 600 N.E. 2d 96, 97 (Ind. 1992)
[12] Indiana Code 31-17-2-21 at [a]
[13] Id at [c]
[14] The collateral estoppel doctrine states that a prior judgment between the same parties on a different cause of action may not be re-litigated as to the issues in controversy upon which the finding or judgment was rendered. When an issue of ultimate fact has been determined by a valid judgment, that issue cannot be again litigated between the same parties in future litigation.
[15] Arms v Arms, 803 N.E. 2d 1201, 1209 (Ind. Ct. App. 2004) (evidence from prior hearing was just as relevant to instant hearing, as past behaviour was a valid predictor of future conduct.)
[16] Wolljung v Sidell, 891 N.E. 2d 1109, 1111 (Ind. Ct. App. 2009) (We note that a trial court is limited to considering changes in the factors that have occurred since the last custody decree.)
note: I propound that factors occurring “following the close of evidence” would be a more accurate standard to use considering the lapse of time which allows for the submission of proposed TR52 findings and conclusions as well as the judicial officer’s time to write and deliver the order. I have yet to find a need to make this argument at either the trial court or appellate level.
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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Thursday, March 26, 2015
Indiana Court of Appeals affirms that having Father’s role in child’s life continually diminished by Mother is not in the child’s best interests; Two petition to relocate denials upheld
Judges around the state of Indiana keep telling me what I continue to read from the Indiana Court of Appeals: Children need both parents. The latest affirmation came in an opinion delivered this week in Paternity of G.S. from the Vigo Circuit Court where Judge David R Bolk and Magistrate Daniel R Kelley presided. This was one of two which denied a mother’s petition to relocate as not being in the best interest of the child. The other, Marriage of W.W. and B.W., was delivered yesterday. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In the paternity case Mother repeatedly requested to or relocated to Illinois with the child over Father’s objection and, at times, the orders of the court. Mother’s final request was denied and custody was transferred to Father.
Father was at the hospital during the child’s birth and the parents executed a paternity affidavit and lived together. That relationship eventually ended and the parents appeared in court for the first time on 07 September 2011, to establish parenting time and support. Father was ordered to pay child support and was granted parenting time pursuant to the Indiana Parenting Time Guidelines [IPTG]. In its written order, the trial court specifically advised the parties regarding Indiana’s Relocation Statute and the notice requirements involved if either parent was contemplating a move. Five months after the court entered the order establishing Father’s parenting time and support Father filed a petition for a Temporary Restraining Order [TRO] to prevent Mother from relocating the child to Pekin, Illinois, which is about a three hour drive from Terre Haute. The trial court granted the TRO and held a hearing on 13 February 2012. Following the hearing, Mother withdrew her request to relocate.
Two weeks later, Mother filed a new notice of her intent to relocate to Pekin. Father again objected and the court conducted a lengthy hearing on 24 April 2012. The parties agreed to submit their dispute to mediation. When the parties failed to reach an agreement in mediation, the matter was again heard by the trial court on 01 and 04 February 2013. Thereafter, the court issued its order permitting Mother to move with the child. as far as 100 miles from Terre Haute in order to accommodate her job opportunity with Cracker Barrel but still be near Father who was significantly involved with the child.
On 10 October 2013, Mother filed yet another notice of her intent to relocate to Pekin. Mother claimed that while she had already relocated within the 100-mile limit to Mahomet, Illinois, she still wanted to move farther to Pekin. Father timely filed his objection to the newest relocation petition and requested a modification of child custody from Mother to Father. An evidentiary hearing was held on 11 April 2014.
Similarly, in the dissolution case evidence was presented that Father regularly exercises extensive parenting time with Child. Specifically, he exercises parenting time three days per week, including one overnight every other weekend. Mother proposed that if her proposed relocation was granted, which is three-and-a-half to four hours away by car, Father could have parenting time every other weekend and part of the summer. This would constitute a significant decrease in Father’s parenting time, particularly in light of Father’s work schedule as a firefighter, which requires him to work one twenty-four-hour period every weekend. Thus, Father would be available to spend time with the child only one day every other weekend, or two days per month.
During their respective hearings these fathers performed a key element to achieving success which was to present evidence to the trial court. In the paternity case Father indicated that Mother was not actually living in Mahomet and had moved “for all intents and purposes” to Pekin with the child despite court orders forbidding her from doing so. The Court found that despite its previous order Mother enrolled their son in a preschool in Pekin and that very spring allowed the child’s maternal grandmother to enroll him in a teeball league in Pekin but failed to inform Father of that. Even if Father had been informed, as required by the IPTG, the three-hour distance from Father’s home would be impractical to allow Father, a former teeball coach to his older son, to participate.
In the dissolution case Father presented evidence of his significant involvement with the child as well as the child’s involvement with members of the local extended family of both Mother and Father. Father also presented evidence of the hardship that exercising parenting time as Mother had proposed would place on him and the child. Father also demonstrated that the relocation would significantly deprive the child of a relationship with him. The trial court agreed and found that, in denying Mother’s petition to relocate, it would be against the child’s best interest.
Likewise, the trial court in the paternity case when it stated, “This is precisely the deprivation of parental involvement against which the court was attempting to protect Father by its order of February, 2013.” That trial court concluded that, “[h]aving Father’s role in [their son’s] life continually diminished by Mother is not in the minor child’s best interests, and nothing short of this modification would appear to prevent this at this time. Simply stated, [the child] is to be raised by his parents; not by his mother and grandmother.” [emphasis added]
These judicial officers in the paternity case recognized in this mother something to which I have been exposed to throughout my 10 years of practice. There is a calculated effort by some mothers to remove the father from a child’s life through relocating. More often than not the relocation destination is to reside with their mothers, not parents or elsewhere, for what is questionably a legitimate purpose. Often the purported job opportunities used as the basis for relocation are low wage, entry level positions.
After having her Motion to Reconsider denied Mother appealed.
Mother essentially asserted that the trial court erred by not defaulting to her an instead granting Father’s petition for custody modification and awarding primary physical custody of their son to Father based upon the evidence.
This case is another of numerous ones which I have written about in the past few years that supports my position that judicial officers should be afforded great discretion in crafting child custody and parenting time orders. It is the policy of our reviewing judiciary to grant deference to the trial court judges. This is because optimally the justices do not want litigation to continue.[en1] This deference is afforded to trial courts because they directly interact with the parties and are in a superior position “to assess credibility and character through both factual testimony and intuitive discernment.”[en2]
Our Indiana Supreme Court articulated the preference for deference to trial court judges this way;
Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to access credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.[en3]
In the appeal Father failed to timely file a proper appellee’s brief. When an appellee fails to submit a brief on appeal, the Court of Appeals applies a less stringent standard of review with respect to the showing necessary to establish reversible error.[en4] That is the Appellant need only demonstrate that there is an appearance at first site that the trial court erred not that it must be proven through cogent reasoning.
Prior to granting a relocation-based petition to modify custody, the trial court is required to consider all the enumerated relocation factors listed in Indiana Code Section 31-17-2.2-1(b).[en5] The court is also to consider the statutory factors[en6] relevant to an initial custody order or a modification of that order. A relocation-based modification need not involve a substantial change to one of the original best interest factors.[en7]
Although Mother asserted that the trial court did not consider the proper statutory factors the Court of Appeals found that a review of the record and the trial court’s numerous other findings indicated that the trial court did, in fact, properly consider evidence relevant to each of the relocation factors. Mother also asserted that the custody change to Father was not in their son’s best interest. She insisted that the move would not impose any additional hardship and expense on Father to exercise his allotted parenting time. Apparently an additional five hour round trip is free and easy to do especially because the court could order the universe to create an extra five hours on those days exclusively for Father’s use.[en8] Contrary to Mother’s assertion the Court of Appeals found ample evidence in the record to support a conclusion that the move would create a hardship and greatly interfere with the close relationship between Father and their son.
Oh how those pesky documents submitted as evidence and a transcript of the proceedings can really get in the way of a sophistry tendered in a baseless appeal. I will soon provide further elaboration on making illogical arguments based upon my recent conversations with a federal judge and law professor about developing a bias toward an unreasonable litigant.
For now I will wrap this up with the Court of Appeal’s response to the absurd contentions of Mother in the paternity appeal.
“It is crystal clear from this record that Father desires, not simply the minimum parenting time, but to be actively involved in [the child’s] school and extracurricular activities. There was significant evidence presented to the trial court that Mother has disregarded prior court orders and has instead exhibited a consistent pattern of attempting to thwart Father’s relationship with [the child]. Indeed, the trial court specifically found that Mother inappropriately used [the child] as leverage by threatening Father that she would allow him no additional parenting time with [the child] unless he consented to her relocation to Pekin.” [emphasis added]
You can also click here to read about how a mental health professional tried to use a child as leverage to boost her billable time.
notes
[1] See Baxendale v. Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008).
[2] Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Conversely, appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
[3] D.C. v. J.A.C., 977 N.E.2d 951, 956 (Ind. 2012)
[4] In re Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied.
[5] In re Marriage of Harpenau, 17 N.E.3d 342, 347 (Ind. Ct. App. 2014).
[6] Ind. Code § 31-17-2-8.
[7] Jarrell v. Jarrell, 5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014), trans. denied. (citing Baxendale, 878 N.E.2d at 1256-57).
[8] The position that switching Indiana to Daylight Savings Time would provide “an extra hour of sunlight” was propounded to the Indiana General Assembly and apparently believed. Thus, there may be a basis to believe that an extra five hours of time could be added to a day but I strongly feel that contravenes rules of physics.
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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Tuesday, March 24, 2015
Are you viewing your child custody modification evidence through a false script and lens? and What is Natural?
Like comedy, the evidence in a child custody proceeding is subject to perception. I wrote about how your personal perceptions are your responsibility in If this offends you then your child custody case may have a problem. In this monograph I want you to explore how societal scripts and the lens by which you view evidence may affect your child custody modification proceeding. I am using natural, environmentalism, and the nature of man as the platform for this examination.
For a moment, relax, visualize your most idyllic natural scene. The breeze, the sounds, the scents -- that carries the smoke, that thunders from gunfire and tanks, that reeks of rotting corpses. A scene from World War II may be the quintessence of natural.
Death and extinction are part of the natural process. The Samsara, more popular in the East, sees existence as a cycle of birth, life, death, and rebirth that adapts to the ever changing environment. There were far more species of flora and fauna that went extinct prior to the emergence of modern homo sapiens than existed upon that emergence. This is because all are in a constant battle for dominance and control of resources. A tree grows tall and bears lightweight flowery seed pods not to be majestic but simply to proliferate. Every living organism procreates well in excess of that which is required for replacement. This is because of the natural, incessant battle for dominance. This includes the intra-specie conflict where one seed with a more dominant root structure chokes its neighbor or a stronger pup excludes a weaker litter mate from suckling the tit. This natural process strengthens the specie.
Ultra conservative humans want to inhibit this process ostensibly from the benevolent motive to preserve nature. They do so under the banner of environmentalism or protection of wildlife. These sophists deceive through deployment of euphemisms, or loaded words such as ‘managed’ or ‘destroying’.
Vast areas have been set aside as national parks, nature preserves, managed forest, or protected wetlands. But what does it mean to manage these lands? Quite simply it has involved protection of particular prey by killing a predator or facilitating growth of one plant specie through exclusion of another labeled ‘invasive’.
Man is said to destroy the landscape, the environment . . . the earth! We can do none. We can only modify and we modify consistent with nature -- our natural inclinations. Ask yourself if you -- or mankind generally -- naturally feel compelled to modify the environment. To attain comfort through construction of shelter using modern man-made materials delivered by motor vehicle across roadways pervading our landscape converging in this concrete jungle. Do you naturally feel a desire to have food readily available for you at a grocery store? If so then it is within your nature to dominate the land or other peoples who compete for these resources. Fresh water, not oil, will likely be the catalyst to future wars.
Epicurus said that seeking pleasure was the nature of man. As well, procreation for dominance is fundamental to the nature of man. The suppression of inter-specie and intra-specie conflict is a pipedream never to be realized because it is so unnatural. Indiana was the first jurisdiction in the world to legislate an attempt to create a more perfect race of man through forced sterilizations of undesirables. Although outlawed statutorily it is carried on through an ethos, perpetuated by marketing, as to what attributes of a person constitutes a desirable mate.
Intra-specie conflict is alive and well. Racial conflict as racial solidarity is as natural as the distinct denizens of the various species of felines. In good times, a robust economy, plentiful resources, and tranquility racial or specie conflict is muted. But watch a prison riot. When I was there the guys at my side were white and everyone else separated into their racial groupings. I suspect that the sociologist who advised on how to regain control of a prison proposed that the responding guards should position themselves by racial continuity to gain a natural allegiance of the prisoners. It is this exclusiveness of specie that would likely have a white prisoner align himself with the white guard standing before him with a baton and can of mace instead of the black prisoners across the yard.
Even the religious based pogroms of World War II, Ireland, Bosnia, Iraq and many others over the past few millennia are a natural result of the exclusiveness and rightness of cults or nations.
Aggression, war, and dominance over one’s environment is part of the natural evolution of man and every other living inhabitant of the earth. It should be embraced. So do as you feel your nature compels and if it modifies the environment to such a degree that some other specie can’t survive then too bad for it by not adapting. That is truly being a naturalist.
The obsequious conformity to which so-called “naturalists” or “environmentalists” march lockstep in their quest to “save the planet” is disturbing. It is precisely this obsequious conformity that so easily led to the slaughter of 20 million Chinese and millions of others during WWII.
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Now that you have read that do you have a different perception or feeling of what it is to be natural? Natural is “of or in agreement with the character or makeup of, or circumstances surrounding, someone or something.” If it is natural for man to explore his environment, make tools, and modify his environment then does it follow that all we have created is part of the natural progression of life on earth? That certainly goes against the common perception of what is natural and the so-called liberals who seek to maintain a stoic existence through ultra conservatism.
In applying evidence in a child custody proceeding I suggest that a liberal view of what constitutes a best practice be fully examined. Just as in viewing ‘environmentalists’ and now seeing them as ultra conservatives, the view of evidence and the particular scripts that have been applied to perceptions must also be shed. By doing this you can present what may presumptively be adverse evidence in a logically constructed manner that rebuts that presumption.
Allowing your pre-adolescent child to consume alcohol should weigh in your favour when seeking to modify custody.
Think about that as long as you need. You may need to do some research. However, it is logically a best practice.
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