Wednesday, December 30, 2015

2016 Indiana Child Custody Legislative Agenda

The following proposals on child custody and well-being matters are those which I sent to each member of the Indiana General Assembly today. I do not intend for any legislation to be introduced during the 2016 session as it is a short session but do anticipate that members will begin the process of getting these ideas into bils for the 2017 session.

Presumptive Shared Parenting
It is well established that both mothers and fathers contribute significantly to the development and well-being of a child. In our modern society rife with differentiation in business and social roles the concept of mother and father, each with their presumptive respective gender based roles, has largely disappeared. Yet, often times it is apparent in court that mothers’ are cloaked with a presumption of entitlement to custody of the children while fathers challenging mothers are put in the position of having to show that she is unfit. Even when parental abandonment and voluntary agreements are considered, mothers are still overwhelmingly the primary custodial parents. On paper the statutory law says that there is no presumption favouring either parent but in practice there is a marked presumption.
Presumptive Shared Parenting would change the dynamics of custody litigation away from fighting for time to preserving it. A court would have to start with a presumption that both parents will equally share parenting time. This could then be rebutted by agreement, work schedules, parental fitness, or other considerations the court feels impacts upon the best interest of the child.
Proposed legislation may be viewed HERE.

Electronic Communication Time
Following my presentation on Electronic Communication Time to the Domestic Relations Committee of the Indiana Judicial Center, Electronic Communication Time was added to the Indiana Parenting Time Guidelines as a new section replacing telephone contact. Since then I have regularly received reports of recalcitrant and alienating parents denying Electronic Communication Time. Additionally, some judicial officers are not intimately familiar with the prefered modicums of communication employed by our current adolescent generation and that, often, households no longer have a “telephone”. Statutory guidance on establishing or crafting electronic communication orders and enforcing them will enhance parent-child relationships.
Proposed legislation may be viewed HERE.

Marijuana Decriminalization
I am going to intentionally avoid disclosing whether I have ever used marijuana but I do propose that it is the lazy man’s way of altering consciousness or affecting mood. I begin each day with a routine of stretching and meditation which, along with a diet consisting of “food” only I feel provides a well-balanced physical and mental state that leaves me feeling fulfilled in life. I have been engaging myself in the company of regular users of marijuana and interviewing them as well as collateral resources about the effect of that herb. What I have found is that typical parents who use marijuana are more accepting of the errors, imperfections, are challenges posed by their children. Parents have self-reported that as their marijuana use increased and alcohol use decreased they have become less hostile or abusive in their behaviours toward children. All seemed to express that use of marijuana is time and place sensitive and that it is viewed the same as tobacco cigarettes in regards to use by their children.
The greater harm that I see from marijuana criminalization is the impact upon families. When a parent is arrested and jailed for a marijuana offense loss of employment may be a consequence. Additionally there may be legal fees. More damaging though is that it takes a parent out of the household and imposes a greater burden on the remaining parent if there is one. The financial impact, loss of parenting time, and increased stress upon all parties impacts children the hardest. An objective analysis of the impact of marijuana clearly demonstrates that the costs of criminalization, especially on children, far exceeds any benefit which may exist.

Mandatory mediation/settlement conference
As I specialize in advising attorneys and parents engaged in high conflict child custody battles I tend to view child custody cases from the worst case scenario. Through my observations and the dialogue I have had with numerous judicial officers in our family courts it is these high conflict cases, less than 10% of all, which account for the majority of court resource usage. I feel that it is therefore necessary to first try to ameliorate the underlying causes of conflict.
Some judges take the simple step of captioning their cases as “in re: the marriage of” followed by the naming of the petitioner and respondent joined by “and” rather than “versus” which may reduce conflict by not framing the dissolution as a battle from the onset. I propose that before ever appearing court that the parties attend a mediation session in which numerous elements of a child custody case are addressed and the mediator forwards to the court a report of the agreed upon issues and what remains contested. Effective mediators are able to help parents understand their continuing role as partners in being parents while acknowledging that their role as partners in a mutual relationship to each other is being divested. If this happens early in the process the likelihood of success is much greater than when it is imposed by a judge after years of prolonged hearings and hostilities between parents.
My proposal may be viewed HERE.

Parenting Time Counselor
In the past year I came to the Domestic Relations Committee with an idea about creating a means by which parents, attorneys, and judges could get answers to questions about the Indiana Parenting Time Guidelines [IPTG]. There was already work being done by FSSA to create a parenting time hotline which has now been implemented. However, I would like to see it taken a step further. I propose that the State of Indiana create a Parenting Time Counselor [PTC] whose responsibilities and activities would tend to mimic that of the Public Access Counselor [PAC] who address complaints and provides opinions as to whether Indiana’s open door or public access laws have been violated.
Before seeking to have a court hearing on an alleged violation of the IPTG a parent would be required to file a complaint with the PTC who would issue an opinion. A parent who goes against the PTC’s opinion would presumptively be held in contempt upon further court hearing. Assessment of attorney fees could also be contingent upon a PTC opinion. Like the PAC the PTC could also be used by the public official - in this case the judge - to give an opinion about application or interpretation of the IPTG.
This position could be an extension of that currently in place under FSSA. Statutorily a portion of fines imposed for contempt could be assigned to the office of the PTC. I believe that it would reduce the use of court resources and as such some of the savings there could be transferred to the PTC. I have not prepared any legislation on this matter but only submit it to you as an idea for your consideration.

The School Day
I was first expelled from school in Grade 6. I couldn’t get out of high school quick enough. Following a series of disciplinary actions, failing grades, absences which exceeded attendance, taking a hiatus to train at the US Olympic Training Center in Colorado Springs, and a general state of chaos I was “given” a diploma and shown the door after seven semesters. My pursuit of education was then able to flourish as well as my athletic career. Unfortunately, within months of obtaining my professional standing I was struck by a truck and managed to survive that lethal collision.
My objection to school is that I saw it as training rather than education. That there was no emphasis placed upon developing the students as whole people with broad knowledge. In my ongoing observations and discussions with students what I saw 35 years ago in Grade 6 have only been exacerbated. The emphasis on academic performance and test scores over general health and well-being has reached such a climax as to reduce academic performance and test scores while inducing a plethora of harms to students’ minds and bodies.
Here is a meditation for you; To improve academic achievement students need to get out of the classroom. After you have contemplated that proposition you may read my explanation HERE.

A Child Focused Perspective
Finally, in considering any legislation I asked that you attempt to view it through the lens of the impact it may have on children. As an example, I was attending a Senate Judiciary Committee hearing on another matter when an insurance bill was read which would have kept vehicle crash reports from public access for a period of, I believe 30 days. I made impromptu comments based upon what I perceived could be an adverse effect on children. I proposed a scenario where when a parent picks up a child for weekend parenting time the child talks about being in a police car and mommy/daddy being in an ambulance. It is determined that the parent and child had been in a car wreck but no other information is available because the report is withheld from public access for 30 days. Because the parent driving had less than a .08 BAC no criminal charge was filed. However, that action is still very relevant to the best interest of the child and a 30 day delay in getting the matter before the court could prove catastrophic for the child. It was tabled and amended the next day based upon my comments.
Just as in this scenario, the impact of legislation upon children will often have an unintended consequence that requires a critical view of the legislation rather than only that of the anticipated or desired outcome. Please feel free to call upon me anytime for an opinion about legislation or your thoughts on proposed legislation. As I see bills posted that I feel are deserving of commentary I will send updates to you.

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3 comments:

Unknown said...

To improve the system, it will be necessary to bar the mentally ill from serving as judges. Most Family Court judges are Narcissists. They foment conflict on purpose, and they intentionally side with abusers.

A rational court system would filter out sociopaths, and then train judges in the psychology off personality disorders. As it stands, Family Court abuses families in order to extract their money.

Stuart Showalter - Child Custody Advisor said...

There are some jurisdictions that bar people with mental disabilities from holding public office. Some bans on the mentally ill have been successfully challenged while others still raise considerable questions of civil rights deprivations under the Americans with Disabilities Act 42USC12132. Federal courts have generally held that an adjudication that a person is mentally incapacitated or is under a guardianship is sufficient grounds. Bans on the mentally ill holding a judicial post must still be narrowly tailored enough to meet a compelling state interest or they will run afoul of the ADA.
This is a much greater challenge than I am prepare to tackle as it has been years since I have actively engaged in civil rights cases or legislation other than writing a report to the Indiana Senate regarding the impact that the same-sex mariage ban bill would have on child custody and Domestic Violence cases if enacted.

Samuel Thomson said...

The family division is blatant extortion. The end is near.