Thursday, August 6, 2015

Guardian Ad Litem to stand trial for perjury in Indiana child custody case

In Indiana, Del Anderson, a Guardian Ad Litem employed by Child Advocates, Inc., was sued by a father in a child custody dispute after Mr. Anderson testified in an 05 February 2013 child custody hearing that the father had caused the child’s school to go on “lock-down” following a threat by the father. The problem for Mr. Anderson is that the allegation was not true.

The principal and superintendent of the school as well as the Pendleton Chief of Police all appeared at a subsequent hearing held 05 April 2013 to testify that no lock-down had been employed at or around the time that Mr. Anderson alleged. Additionally, all testified that the father had not presented any behaviour that caused concern. I also testified about the ease at which I was able to determine that no records existed of a lock-down or police action at the school.

From time to time I hear from a parent who proclaims that the system is rigged, that there is bias against him or her, no one else is looking out for the best interest of the children, lawyers are just taking money and doing nothing to help, and that he or she is being unfairly demonized. Generally, the solution lies in getting that parent to change his or her perception of the process and take a proactive and positive role. On rare occasions the parent who appears to suffer from a persecution complex has a well founded complaint. Such was the case when this father, Brian Moore, was referred to me by a local attorney.

Through our therapeutic sessions Mr. Moore and I were able to alter his perception of the system and he became a skilled self-represented advocate. However, even I was detecting that there was a bias against him by some of the ancillary players involved. One of those was Del Anderson, the GAL, assigned to the case. Mr. Anderson’s duty was to advocate for the best interest of the children. There seemed to be little if any interest in the children expressed by Mr. Anderson. Instead, he appeared to me to be more interested in finding ways to justify the mother’s request to be the sole custodian of the children.

Mr. Anderson, according to the complaint filed this year, had engaged in a pattern of trying to persuade the judge to remove custody of the children from Mr Moore by presenting biased or false evidence against him. Mr. Anderson’s attorney, Cynthia Dean who is also employed by Child Advocates, Inc., had previously sent an email to Mr Moore instructing him to follow her interpretation of a clear and unambiguous order. Had he followed Dean’s instructions that would have placed him in violation of the order. The mother, Kristy Moore, on her own volition violated the order by doing just as Dean had instructed Brian to do. Thus, Kristy was the one found in contempt. I previously wrote about that in Child Advocates' Cynthia Dean should be removed from Moore v Moore case.

Mr. Moore had filed a motion to remove Mr. Anderson as the GAL back in 2012 when it was apparent to him that Anderson was not advocating for the best interest of the children. However, that motion to remove Anderson was denied on 12 September 2012 about five months before Anderson would fabricate the “lock-down” allegation. “I could see from his behaviour during the February [2013] hearing that this man had waged war against me in retaliation,” said Brian Moore who gained “a jaded view of the court system” during that process.

On 30 March 2015 attorney for Del Anderson, Trent Gill, filed a Motion for Summary Judgment, alleging that Mr Anderson was immune from liability for his actions while performing his duties as a GAL. That argument is misplaced at best and actually frivolous. It could only be uttered by a woefully incompetent legal counsel. What makes it frivolous and aptly demonstrates the stupidity of its author is that immunity applies to the performance of one’s duty. I spoke to numerous GALs that I know in addition to reading materials that I have about GAL training and GAL duties and obligations. Nowhere in any of my research on this topic was I able to find any semblance of a duty described as “providing false testimony in a court of law.” Rather, quite the opposite was true. I was able to find numerous accounts of a GAL’s responsibility to testify truthfully, give objective assessments, and be unbiased toward the parents.

Commissioner Shannon Logston is presiding over the case against Mr. Anderson. On 20 July 2015 Commissioner Logston ruled that Mr. Anderson’s Motion for Summary Judgment alleging that he has immunity from prosecution for his acts as a GAL is denied. In that ruling she cited that there exist a genuine dispute with respect to a material fact regarding the actions of defendant Anderson and whether those actions involved gross negligence so as to remove said actions from statutory immunity.

At the summary judgment hearing Commissioner Logston curtly rebuked attorney Trent Gill’s facetious argument. Logston stated, “I don’t think lying to the court is protected by civil immunity.” Logston again responded to the argument saying, “I do not believe that in any way whatsoever someone is protected if they lie to a court . . . by civil immunity or common law immunity . . .” Responding to Gill’s repeated immunity assertion she said, “I don’t agree that that is covered by civil immunity.” Gill was apparently missing the substance of her declarations which she summarized as, “And I don’t believe that that is what is intended by immunity . . . is to defend someone from intentionally making untrue statements to a court . . . as part of their job.” Clearly Anderson’s perjured testimony, which amounts to gross negligence in the performance of his duties, removes his immunity provided by Indiana Code 31-17-6-8 and common law.

A jury will be empanelled in the Marion County Superior Court 13 where Mr. Anderson will stand trial although no date has been set at this time. The cause number of this suit is 49D13-1502-CT-003909.

Although the Marion County Prosecutor declined to file criminal charges against Mr Anderson in 2013 the evidence revealed at the forthcoming civil trial may be cause for reconsideration. The prosecutor has until 05 February 2018 to file charges.

For those who have encountered the slanderous allegations by third-party interlopers in child custody proceedings they don’t have to accept it without recourse. Brian Moore is thankful that he has pursued this matter saying, “It was tremendously refreshing to see a judge demonstrating that she could see that Anderson was behaving as an adversary toward me.” The critical element leading to this success is preparation. I eluded to that in Just when you thought it was safe to lie on the witness stand where I detailed some of Anderson’s false allegations.

The wheels of justice do turn slowly and it can be an arduous endeavor but for those who have the patience, proper guidance and fortitude to allow the system to work they can find solace in Mr Moore’s accomplishments. It has seemed at times that the court was clearly against Mr. Moore. His income was imputed at $50,000 and his support obligation raised to an impossible to pay level. He was then denied access to legal counsel at a contempt hearing and faced incarceration. But he availed himself of the judicial process by appealing both. The Indiana Court of Appeals ruled that his income could be imputed to a maximum of $22,200 and in a published opinion the court ruled that indigent parents who may face jail time upon a finding of contempt are entitled to a pauper attorney. By properly using the courts Mr Moore was victorious in those two child support related appeals last year and has overcome a nearly insurmountable hurdle in this case -- statutory and common law immunity. Although it has be trying for times over the past five years for Mr Moore he concludes that, “Commissioner Logston has resuscitated my faith in the judiciary.”

As for what Mr Anderson can expect to be held liable for Commissioner Shannon declared that, “damages don’t have to be monetary,” “time, emotional distress, . . . loss of parenting time.” Jurors will be asked to consider the monetary value they would place on having their children taken away from them based upon a false allegation. Additionally, Mr Moore will be asking jurors to award punitive damages substantial enough to send a clear message to any witness in a child custody proceeding that they best be honest with the court.

If you are experiencing similar difficulties in your case please contact my scheduler if you would like to apply for my services.

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