Monday, January 25, 2016

2016 Indiana Senate Bill SB 357 Child Abuse Registry

Indiana Senate Bill 357 creating the Child Abuse Registry has been introduced by Senator Carlin Yoder. This bill is modeled after the existing sex offender registry and serves much the same purpose.

This bill would establish the Child Abuse Registry under IC§10-13-9 which would be added as a new chapter. Child abuse for purposes of the registry would be defined as criminal convictions under IC§35-46-1-4 [criminal neglect of a child dependent], a sex offense against a child, or battery against a child.

The Indiana State Police Department would be required to collect data for the registry from its own records, the Department of Corrections, and any other government agency that it determines to be a reliable source. The registry would be updated at a minimum of every 30 days.

The offender data would include name, age, last known place of residence, and a photograph if available. The ISP would also be required to establish a procedure for persons who feel that they were erroneously included to have their data removed.

The law would require that the registry display this message;
"Based on information submitted to law enforcement, a person whose name appears in this registry has been convicted of a crime of child abuse. However, information on the registry may not be complete."

In itself I have no objections to this legislation and feel that such a registry could be a useful tool. But the public at-large is unlikely to use the registry as a tool among their plethora of investigative resources. As I wrote in Sex Offender Registration: good for litigation, bad for children;
These registries DO NOT let people know where sex offenders in their community live. The only information provided by these registries is where people who were convicted of sex crimes, who have registered, live or work. Proponents will be quick to point out that these are only tools that people can use but we know from experience that most people rely solely on these registries.

The likely result of a registry such as this is that employers who hire people to interact with children will use it as a screening tool to eliminate applicants rather than as information beneficial in helping to develop an appropriate employee-employer relationship. This could include not putting a mother who accepted a plea agreement to neglect for having had her children temporarily living in her car with her because she was too proud to seek assistance not being placed in the position of having to provide housing and medical care to the children in the school where she would be working.

As a society we are lazy. I see this registry as just another means by which to accommodate that laziness. Just like I have heard people say in regards to the sex offender registry that “you can go online and find out where the sex offenders in your neighborhood live” the same is likely to occur with this registry. But neither would be true. These registries only allow the public to learn where those persons convicted of the underlying crimes -- who weren’t clever enough to avoid detection or didn’t have adequate financial resources to fight the charge -- reside.

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Tuesday, January 19, 2016

2016 Indiana House Bill HB1354 Delegating parental responsibilities

Representative Curt Nisly has introduced House Bill 1354 which relates to protecting parents who delegate their parental responsibilities to another person or institution. The bill would bar government agents from having such delegation used against the parents upon a claim of abandonment or neglect.

This bill would amend IC 29-3-9-1 which currently prohibits repercussions against parents for delegating to an institution furnishing care, custody, education, or training to a child for a period of up to 12 months. As amended it would grant to government personnel a time limitation of up to 30 days following return from deployment regardless of the duration of the deployment.

IC 29-3-9-1.2 would be added as a new section. This section provides definitions and exempts the temporary custodians from foster care requirements. It also includes the protection clause; Except as otherwise provided in statute, the delegation shall not, without other evidence, constitute abandonment, abuse, or neglect of the minor by the parent or guardian, unless the parent or guardian fails to make contact with the attorney-in-fact or execute a new power of attorney after the expiration or termination of the original power of attorney.

The final portion of the bill also adds a new section. IC 31-33-8-15 would provide that when Child Protective Services conducts an investigation that does not result in a child being taken from the home that it can provide referrals or information about community support services to the parents.

This bill is well considered legislation that seeks to protect parents from unjust intrusion by CPS. It is a fit companion to HB1338 which protects parenting time of the other parent when a child is taken from a parent. This bill should also be adopted by the State of Indiana.

The progress of this bill will be updated on the posting List of 2016 Indiana Child Custody, Child Support, Domestic Violence, and Child Well-Being bills.

My legislative agenda and proposals.

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Monday, January 18, 2016

Lessons from Martin Luther King about Child Custody reform

One only needs to look at the outcome of child custody proceedings to realize that there is a great dichotomy between those results and the statutes which govern them juxtaposed to the parental behaviours of married parents. The law says there is no preference favouring either parent in a custody proceeding.[en1] Likewise, we see that the parents who accompany their children to school events, sporting or extra-curricular practices or doctor visits are not defined by birth sex. The results of judicial decisions which are not aligned with the statutes, behaviours, or biology can only be labeled an injustice. The indubitable assumption is that a bias based upon birth sex of parents exists.

Martin Luther King observed such an injustice when it came to the contrast between racial neutrality of the United States Constitution[en2] declared in the 1860s and the inhumane practices of various state actors 100 years later. It was that sharp contrast which drove him to expostulate on the iniquity of the state of racial status in the United States.

Concurrently women who went through a similar catharsis by the early part of the century had gained their civil rights upon the demonstrations of leaders such as Susan B Anthony and Margaret Sanger. Their rationations against excluding women from enfranchisement elevated their status to that of voter and office holder.

Out of the turbulence of the 1960s evolved a new political culture in which women and racial minorities were not only provided with an equitable structure for achievement but the equal opportunity was transformed into preferential treatment. The preferential treatment for racial minorities would eventually be declared to contradict the constitutional protection against racial discrimination.[en3] And so evolved the Father’s Rights movement to fight the injustice of birth sex discrimination in child custody cases.

Here I expostulate on the Father’s Rights movement through use of portions of King’s disputations or writings. It is my intent to demonstrate that the struggle for parental parity in child custody cases is analogous to King’s struggle for civil rights and should mimic that course or reasoning.

I think it is pertinent to open with a philosophical statement.
“Not ordinarily do men achieve this balance of opposites. The idealists are not usually realistic, and the realists are not usually idealistic. The militant are not generally known to be passive, nor the passive to be militant. Seldom are the humble self-assertive, or the self assertive humble. ...truth is found neither in the thesis nor the antithesis, but in an emergent synthesis that reconciles the two.”
King is saying that effective leadership comes from a passionate, rational mind that seeks not to reverse the balance of power but to create a new power dynamic. In seeking to establish a just process to protect the rights of our children we cannot let the conversation be driven by a boisterous irrational few but neither can the rational idly sit by and observe. All must concentrate their thoughts on a universal effective approach.

“Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think.”
In the realm of personal liberties, sacrifices, and opposition to oppression one’s thoughts may be driven by emotion. A resulting polemic breeds not conciliation but, more likely, entrenchment. The “solutions” often proffered as a result of these emotionally driven conflicts while seeming plausible fail to reflect the considered judgment of deep thinking. One must not think of “my rights” but instead of the rights of all.

“An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity.”
By thinking beyond one’s personal vested interest in the application of a policy or cultural growth he can escape the trap of calculating his losses and gains.

“Man must evolve for all human conflict a method which rejects revenge, aggression, and retaliation. The foundation of such a method is love.”
In speaking with the multitude of policy makers and influencers throughout the state I hear them lamenting the vitriolic platitudes heard from parents on the losing end of a custody battle. Suggestions motivated by revenge are readily dismissed. To effectively advocate for the rights of our children we must operate from the foundation of love for the children. But more than that we must also understand that our love for the other parent shall not be extinguished. The person to whom each of us carefully considered would be the pinnacle of all and the one who would best fulfill the role of partner in parenting a child together must not be loved any less because of a failure to meet our expectations. To aid that parent is to aid ourselves. To forgive that parent is to forgive our judgment. To do both is to love our children.

“Another way that you love your enemy is this: When the opportunity presents itself for you to defeat your enemy, that is the time which you must not do it. There will come a time, in many instances, when the person who hates you most, the person who has misused you most, the person who has gossiped about you most, the person who has spread false rumors about you most, there will come a time when you will have an opportunity to defeat that person. It might be in terms of a recommendation for a job; it might be in terms of helping that person to make some move in life. That’s the time you must do it. That is the meaning of love. In the final analysis, love is not this sentimental something that we talk about. It’s not merely an emotional something. Love is creative, understanding goodwill for all men. It is the refusal to defeat any individual. When you rise to the level of love, of its great beauty and power, you seek only to defeat evil systems. Individuals who happen to be caught up in that system, you love, but you seek to defeat the system.”
The temptation of retribution is great. To stand on the backs of fallen enemies enticing. To bask in the glory and praises of victory compelling. But all are defeating. Those allow the system which deprives children of parental bonds, that perpetuates conflict, that enriches the profiteers to remain intact. We are not confronted with the injustice of mothers nor the victimization of fathers. We face a system that has evolved into a machine that deprives children with the security of lasting parental bonds. This is in the interest of mothers and fathers with neither standing higher in status than the other.

“I always contended that we as a race must not seek to rise from a position of disadvantage to one of advantage, but to create a moral balance in society where democracy and brotherhood would be reality for all men.”
If the conflict is couched as mothers holding supremacy over fathers and that fathers must receive special consideration to counter that imbalance then we are caught in a trap of perpetual imbalances. Instead we need not break down the power of mothers derived from favourable presumptions nor empower fathers through the grant of special considerations.

“One of the greatest paradoxes of the Black Power movement was that it talked unceasingly about not imitating the values of white society, but in advocating violence it was imitating the worst, the most brutal, and the most uncivilized value of American life. American Negroes had not been mass murderers. They had not murdered children in Sunday school, nor had they hung white men on trees bearing strange fruit. They had not been hooded perpetrators of violence, lynching human beings at will and drowning them at whim.”
Martin Luther King is viewed as probably the most effective leader of gaining civil rights for black people. Certainly, the most influential in motivating the call of the masses for change. In his disputations for granting civil rights to blacks he is not heard advocating for “black rights” but rather he repeatedly called for “all men” to be judged by the same standards. The black power movement, while internally providing a sense of worth within the black community, was less effective in procuring the change initiated through King. King did not seek to create a privilege for blacks, to elevate the black race over the white race, but instead to eliminate race as a consideration. Fathers have suffered the result of the reversal of a hierarchal power structure they created based upon birth sex. King saw this folly and took the moral high ground in seeking to eliminate the power structure which had abused his people while resisting the temptation to use the same power structure as a tool of retaliation.

“Lamentably, it is a historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.”
Securing our role parental role as moral certitude dictates will not be one embattling each other. I have counseled hundreds of parents through custody battles, mothers and fathers, each lamenting the costs associated with the battle. Each proclaiming their interest in the welfare of the child. Each acknowledging that the children are losing precious time and resources from each parent. But each always poised to keep battling until achieving a new cognitive perception of the battlefield. In recognizing that parents, neither mothers nor fathers hold privilege in the child custody arena we will be able to reclaim what was usurped by those who now hold privilege. But we must first convince them that they are not entitled and this system shall be changed. That it is the right of our children for which we as unified parents are apt to facilitate and they deserve a new dynamic in their custody proceedings.

“The soft-minded man always fears change. He feels security in the status quo, and he has an almost morbid fear of the new. For him, the greatest pain is the pain of a new idea.”
Familiarity breeds contentment while uncertainty leads to anxiety. Thus there is a natural predisposition opposing change. Have the outcomes for infants in motor vehicle collisions improved through the use a car seats? Was there opposition to their use and especially mandated use? Absolutely. What is the car plunges into water? What if the car is on fire? But in practice, once the change occurred, we do not see these fears manifest in the outcomes. The status quo must be changed as all parties involved have a moral obligation to advocate not for their personal interest but for that of the only victims and losers in custody battles -- the children.

“Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”
It’s a common refrain that I hear from legislators and judicial officers -- morality cannot be legislated. Fundamentally morals must be unique to every individual as morality is an element of character. An imposed moral is nothing but a stricture with either a pronounced or implicit consequence for transgressions. Instead of legislating that parents must elevate the interest of children over themselves we must strive, as a community, to imbue that spirit within every parent and a love for each other as parents of our mutually conceived children.

In closing I provide another philosophical statement;
“As my sufferings mounted I soon realized that there were two ways in which I could respond to my situation -- either to react with bitterness or seek to transform the suffering into a creative force. I decided to follow the latter course.”

I contend that all children are entitled to a presumption that they are wanted, loved, and supported by both parents; that this desire, affection, and contribution to them is not determined by the birth sex of either parent and the measure of these should not be judged by the nature of their parents’ birth sex but by their actions and expressed behaviours. Thus there should be a presumption upon the initiation of a child custody case that the child has a relationship equal in binding elements with each parent. To do any less is to deny to the child his right to his parents.

notes
1] Indiana Code 31-17-2-8 The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent.
2] The Equal Protection Clause itself applies only to state and local governments. However, the Supreme Court held in Bolling v. Sharpe, 347 U.S. 497 (1954) that equal protection requirements apply to the federal government through the Due Process Clause of the Fifth Amendment.
3] Gratz v. Bollinger, 539 U.S. 244

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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, 2016 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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Sunday, January 17, 2016

2016 Indiana Senate Bill SB 269 School Discipline

Senator Greg Taylor has introduced Senate Bill 269 relating to school discipline rules in charter schools. Taylor’s education bill continues along the line of his commitment to crafting sound statutory foundations for the well-being of children. The bill has been referred to the Committee on Education and Career Development.

This is one of the simplest bills to likely be on the list of submissions this year. It simply amends IC 20-24-8-5, relating to the rules and regulations of charter schools, by adding IC 20-33-8-12 [written discipline rules] to the requirements that a charter school must follow. Simply put; “An eligible school shall adopt written discipline rules as set forth in IC 20-33-8-12.” As already exist in public schools, a charter school would be required to formulate written rules for the discipline of children and to make those available to students and parents.

The other part of the bill strikes from the requirement for general publicity of the rules the exemption if a “school corporation makes a good faith effort to disseminate to students or parents generally the text or substance of a discipline rule.” Eliminating this good faith exemption is appropriate considering the ease of disseminating information electronically now. This bill should be adopted.

While I have your attention about discipline of children here are two previous postings of mine on that issue.

Empowering Your Children - Intact or Broken Families

Societal Acceptance of Domestic Violence Against the Most Vulnerable

The progress of this bill will be updated on the posting List of 2016 Indiana Child Custody, Child Support, Domestic Violence, and Child Well-Being bills.

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Saturday, January 16, 2016

Indiana law allows men to publicly display sexual organs and promotes maternal preference in custody decisions

Imagine that everyday on the way to the courthouse the judge in your child custody case passes 100 men and each are yelling at, smacking around, or ignoring the pleas of a child for assistance. Also, imagine that while en route 100 women are simultaneously observed holding a child lovingly, emphatically listening to the child’s chatter, and providing guidance about safely traversing their course. If you think that may have a subconscious impact on the assessment by the judge about who you are as a parent then keep reading.

Indiana Code 35-45-4-1 defines "nudity" as “the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple . . .” [emphasis added]

It also includes “the showing of covered male genitals in a discernibly turgid state.” This is what is called a “boner law” which makes it illegal for a man to obtain an erection while in a public place. [en1]

There are two conditions in which one can meet that statutory requirements for the offense of public indecency. The first is that if a person appears in a state of nudity with the intent to arouse the sexual desires of the person or another person. The second being that a person at least eighteen years of age who knowingly or intentionally, in a public place, appears in a state of nudity with the intent to be seen by a child less than sixteen years of age. The intent element is the pivotal factor in meeting the statutory elements of the offense but that is not my purpose in this rationation so I do not address that now. Rather, my intent is to demonstrate that there is a deliberate purpose in establishing a birth sex differentiation in defining public nudity and the offense of public indecency.

A study by the National Institute of Health found that “manipulation of the nipples/breasts causes or enhances sexual arousal in approximately 82% of young women and 52% of young men with only 7-8% reporting that it decreased their arousal.”[en2] Although I have not conducted an amount of research on this topic to make significant findings I do feel that men may under-report based upon the perception that the breast is a sexual organ for woman and thus being aroused by niple stimulation as a man may produce a sense of being feminine. Is there a biological basis for the perception that the breasts of women are sexual organs?

Fetishes are created by selectively hiding and revealing — making that which is hidden enticing.

Laws like Indiana’s public indecency statute are carefully crafted to develop a culture that views a women as a sexual being rather than a productive functional person. The result of the patriarchal dominance in the United States is that the female breast is portrayed not for its biological purpose -- producing nourishment for a baby or young child -- but as a medium of sexual gratification for men.


If you are a viewer of old films then you are familiar with the leading bombshell who would pull her dress up enough to show off her ankle or the more enticing calf. Through conditioning the exposed ankle or a calf of a woman had become arousing to men. This was a cultural development of the time as young men in our contemporary society experience no sexual arousal from the ubiquitous exposure of women’s ankles or calves and likely do not understand the basis of a gratuitous display of the lower portion of a woman’s leg in pre-depression films.

The sneak-a-peek excitement from seeing behind the abundant garb of a woman’s clothed body has not diminished in 100 years. In contemporary Islamic countries women may gracefully expose their hair or necks as a titillation to men. What is obscured or forbidden creates desire. This is much the same way that young gentile adults have been manipulated to desire alcohol.[en3]


Contrary to these puritanical cultures are the more enlightened and intelligent cultures that we observe in Central and South America, sub-Saharan Africa, and areas within the Australian continent and southern Asia. There they have evolved sufficiently to realize that the purpose of the female breast is for the production of milk to nourish the children. Thus, the female breast are openly displayed and the male members of the society do not experience lust or arousal from observing such.

The male breast, however, lacks the internal structures to produce milk and has only the observable external structure as a woman - cleavage, areola, and nipple. The majority of men also report that nipple stimulation produces or enhances sexual arousal. Clearly then the male breast only serves a sexual function and is therefore a sexual organ.

From a logical construct this practice of sexual discrimination is backwards is such arbitrary discrimination is to exist. The sex codes which distinguish the exposure of breasts as a criminal offense based on birth sex -- allowing men to expose their sexual organ while requiring women to obscure a means of producing sustenance for their children -- serves an obvious social agenda.

The intended outcome of this code is to inculcate gender based roles and hierarchy. Men, with their breast tightly draped over large pectoral muscles, demonstrate strength and are shown to be builders -- producers -- not objects of sexual gratification. Women, however, with their breast -- their most demonstrable means of production -- covered are shown to be meek, idle -- not productive -- and objects of sexual lust and fantasy. Therefore, when producer is contrasted to idle object of lust the producer must be granted elevated status and position of authority in the industrial or financial provider scheme.


Although distinct gender roles are largely being eliminated in the practices of child rearing as the various nurturing activities, emotional needs, and perfunctory duties are aptly tended to by me and women. One only need look to the baby changing tables in men’s restroom to observe the actuality of this social phenomena. Yet this paradigm shift has not been fully integrated into the courtroom setting.

Men who object to the maternal preference that largely still exist in child custody cases and the child support awards that accompany their diminutive role in the lives of their children need look no further than such a law as this which, while not part of the child custody statutes, serves as a constant subconscious guide to judicial officers making child custody decisions about the proper roles of mothers and fathers.

notes
1] Although removed from the books in many jurisdictions this element of an archaic puritanical code remains on the books in Indiana because men are not to be publicly seen as sexual aggressors aroused by the seductiveness of the covered woman.
2] Taken from http://www.ncbi.nlm.nih.gov/pubmed/16681470 15 January 2016.
3] Jewish as well as some mediterranean children are generally introduced to alcohol consumption during elementary school age. Both populations have significantly lower rates of consumption and abuse of alcohol within countries or cultures that do not use alcohol as an enticement to display maturity such as the policies of the United States are designed to do.

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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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Friday, January 15, 2016

2016 Indiana House Bill HB 1338 CHINS cases and protection of Parenting Time

Representative Timothy Harman has introduced House Bill 1338 relating to child representatives, foster care, and parenting time in CHINS cases. It has been referred to the committee on the Judiciary.

The first section of this bill would amend the CHINS statute IC 31-34-5-3 related to the detention of juveniles. Under current law a child who is believed to be a CHINS may be detained under certain conditions including absence of a parent. This bill would provide that when a child is taken into custody from the home of a parent, guardian, or custodian and is the subject of a previous court order that granted parenting time to a parent, guardian, or custodian who does not reside in the home from which the child was removed and was not a part of the allegation of abuse or neglect that resulted in removal of the child then the parenting time of that parent, guardian, or custodian shall continue as previously ordered.

The next section would amend the CHINS statute at IC 31-34-15-7 which allows a child to select up to two representatives to assist him or her in developing a case plan with the Department of Child Services. Under existing law DCS has the authority to reject a representative chosen by the child. This bill would allow DCS to only object to the selection of a representative. DCS would be required to file the objection with the court that found the child to be a child in need of services and state why the department believes the child representative would not act or has not acted in the best interests of the child. If the court determines that the DCS has demonstrated good cause regarding the objection then the court shall set a hearing to consider the objection. Both DCS and the child would be permitted to participate in the hearing. After a hearing the court may order the removal of a child representative if the court determines DCS established good cause to remove the child representative.

The next section would amend the CHINS statute at IC 31-34-20-1 which relates to dispositional decrees. It provides the same protection of parenting time orders as the detention portion of the bill. If a dispositional decree orders or approves removal of a child from the child's home or awards wardship of the child to DCS and the child is the subject of a previous court order that granted parenting time to a parent, guardian, or custodian who does not reside in the home from which the child was removed and was not a part of the allegation of abuse or neglect that resulted in an adjudication of the child as a child in need of services then the parenting time of the parent, guardian, or custodian described shall continue as previously ordered.

The next section would amend the CHINS statute at IC 31-34-21-7 which relates to permanency plans by establishing factors which the court may consider. These will look familiar at anyone who has been through a paternity or divorce case involving child custody. The difference here is that these considerations are not mandatory and do not include all eight factors.

The court may consider the following factors in establishing a permanency plan for the child:
(1) The age and sex of the child.
(2) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(3) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(4) The child's adjustment to the child's:
(A) home or placement;
(B) school; and
(C) community.
(5) The mental and physical health of all individuals involved.

The fifth section would add a new section to the CHINS statute at IC 31-34-23-1.5 which relates to a child in foster care. It provides that if the child is in foster care and reaches the age of 18 that the child may opt out of foster care.

The final section applies the same standards and procedure to probation officers objecting to a child’s selection of a representative as is applied to DCS objecting.

I think this is great legislation that provides some judicial oversight of CPS and protects the interests of parents who were not part of the abuse or neglect which resulted in their child being detained subject to a CHINS dispositional decree. I will be contacting legislators and asking them to support this bill.

If you support this bill please ask the Chair of the Committee on the Judiciary, Greg Steuerwald, to set HB1338 for hearing. The progress of this bill will be updated on the posting List of 2016 Indiana Child Custody, Child Support, Domestic Violence, and Child Well-Being bills.

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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, 2016 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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