Parental Alienation and Child Custody decisions

Divorce and separation should be about dissolving the cohabitation, shared lifestyle and co-mingling of finances between two adults. It should never be about separating the children from a parent unless there is clearly substantial abuse of the child by that parent. Yet, abusive parents often use the child as a pawn for retribution against the other parent, as a hostage for a beneficial settlement of property or as leverage to obtain a high child support payment order.

If you are in a contested child custody battle then it is important that you recognize what Parental Alienation is, what you can do as a loving parent to ensure that you do not engage in it and how to combat it when the other parent is alienating your child from you.

Much of the information I will be providing here was gleaned from Parental Alienation Awareness Organization. I encourage you to visit their website if you feel that your child may be experiencing Parental Alienation or if you feel you may be at risk of alienating your child from the other parent.

Here are a few things that may indicate that you may be at risk of alienating the other parent.
~ you feel overwhelmed by hurt feelings from the actions of the other parent;
~ you don't want reminders of or items from the other parent in your home;
~ you want to "get back" at the other parent;
~ you feel that you need to protect your child from the other parent;
~ you want your child to affirm that you were correct; or
~ you want sole custody

I am not going to give a full examination of Parental Alienation but, instead, I will just examine a few points and how this may be viewed in the courts and typically what to expect from courts.

First, you should know that your child may side with the alienator. There are reasons for this that may be logical to the child. These include that the child feels the need to protect a parent who is depressed, anxious, or needy. The child may also want to avoid the anger or rejection of the alienating parent.

Parental alienation syndrome [PAS] is the term coined by Richard A. Gardner in the early 1980s to refer to what he describes as a disorder in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the other parent and the child's own attempts to denigrate the target parent. Gardner introduced the term in a 1985 paper, describing a cluster of symptoms he had observed during the early 1980s. There is dispute among the psychiatric and legal community as to whether such a condition exists.

The Ocala Divorce Law Blog had this to say in a posting about the effort to get the American Psychiatric Association [APA] to include Parental Alienation in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders [DSM-5] Dr. William Bernet, a psychiatry professor at the Vanderbilt University School of Medicine, said it was "flatly ridiculous" for the APA to contend there is not enough information available to warrant including parental alienation in the DSM. He cited legal developments and new research in numerous foreign countries. His proposal defines parental alienation disorder as "a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification."

Since the APA has not included Parental Alienation in the DSM some judges will not accept any evidence of or conclusions that a child is afflicted by PAS. However, there are some specific behaviours that when taken as a whole can lead to only one conclusion.

I have worked on numerous cases where parental alienation seemed evident. During the initial interview process I ask about the opposing parent and the child. As these behaviours are being described to me I am considering then how is it that I can present, in detail, some of the additional behaviours of the parent or child involved in alienation to the court?

Here are some of the behaviours that an alienating parent will engage in;
• Inaccurately or untruthfully telling the child about the rejected parent, or suggesting they are unsafe or dangerous.
• Inappropriately confiding adult information with the child.
• Throwing out gifts and letters from the rejected parent.
• Calling excessively during time with the rejected parent.
• Forbidding any reference to, or photos of the rejected parent.
• Scheduling activities that compete with time with the rejected parent.
• Monitoring or forbidding communication or time with the rejected parent
• Withdrawing love, inducing guilt for having fun or feeling love toward a rejected parent.
• Forcing the child to choose between parents.
• Creating conflict between the child and the rejected parent.
• Giving the child parental decision making authority, ie whether to visit with the rejected parent.
• Refusing to provide the child’s information (medical, educational, etc.), to the rejected parent.
• Not inviting/informing the rejected parent of important events. (awards, honors, graduations, etc)
• Refusing to provide others with the rejected parent’s contact information.
• Rewriting history to reduce a rejected parent’s role in the child’s life.

There are classes that may be required of divorcing or separating parents in addition to standard conditions that courts will include in custody and parenting time orders. These often include efforts to mitigate some of the behaviours I have just listed.

Because there is such a reluctance by the courts to acknowledge parental alienation it is difficult to run into court and ask a judge to order the offending parent into counseling. Instead, I suggest a plan that includes reference to specific behaviours that the court has already acknowledged.

Since the alienator will engage in a specific set of bevaviours then I would offer to the court, through an Information for Contempt, those that are specifically acknowledged in the court order or the Indiana Parenting Time Guidelines.

Monitoring or forbidding communication or parenting time with the rejected parent, refusing to provide the child’s information (medical, educational, etc.), to the rejected parent, giving the child parental decision making authority, ie whether to visit with the rejected parent, and not inviting/informing the rejected parent of important events (awards, honors, graduations, etc).

The clearest order of a court is going to be parenting time. The less knowledgeable parent or attorney may counter the parenting time violations with the argument that the child chose not to participate or that he or she felt the targeted parent was unsafe for the child.

While courts are less likely to find a parent who expresses a safety concern to be contemptuous it does fit the alienator pattern. The parenting time violations and to a lesser extent the interference in communication will lead to a finding of contempt.

The parent who constantly calls the child to "make sure everything is okay" or because he or she "is concerned" or "worried" or who is excessively clingy at the parenting time exchange is using a technique to alienate the child. Essentially the alienator is transmitting to the child a fear of the targeted parent, raising anxiety in the child while engaged in parenting time.

If this can be brought out in the testimony from the contemptuous parent then you are a giant leap closer to getting the court to recognize that the parent is an alienator.

The second area in which I seek to bring out evidence of a parent being an alienator is through exchange of information. The IPTG are rather clear about what is required of a parent as it relates to communicating information from the school or a doctor to the other parent.

I reiterated this point to the Domestic Relations Committee [DRC] today when speaking about Indiana House Bill 1422. The DRC will be altering the language about parental notification. It will soon be clearer as to exactly what information a parent is required to transmit to the other parent.

In summary it is important that you learn about parental alienation because you don't want to be an alienator but also need to recognize if your child is being alienated from you. Parental Alienation is child abuse. It does psychologically damage the child. Although I can create strategies which will use a parent's alienating behaviours against him or her I would much rather have your child not go through it to begin with.

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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, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Madison County drops charges in violent domestic case

In reviewing police reports and potential criminal cases a prosecutor must balance the severity of the crime, the deterrent effect of a prosecution, the likelihood of a conviction, the resources that must be expended, the wishes of the victim(s) and what will ultimately best serve the community.

In the case where Brandon Galbraith attacked Craig Scarberry during a parenting time exchange these factors are all in play to varying degrees. Initially, Mr Galbraith was questioned by police and denied the accusation but eventually admitted to the crime. He was subsequently charged with a Class A misdemeanor battery. However, on 10 March 2011 the charges against him were dismissed without prejudice. Thus, the charges may still be refiled, which is my intention and I will explain why after some further background on the role of a prosecutor.

The prosecutor has absolute discretion on whether to file charges. The concept of prosecutorial discretion is long held and well known in our system. See, e.g., State v. Winne, 12 N.J. 152, 172-74 (1953). The decision to prosecute "generally rests entirely in [the prosecutor's] discretion." see Bordenkircher v. Haves, 434 U.S. 357, 364 (1978). This discretion is especially firmly held by the criminal prosecutor. see Oyler v. Boles, 368 U.S. 448 (1962); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965).

The prosecutor is vested with this power through the executive branch of the government. The separation of powers provides that "[a] judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them." see United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir.1992).

The prosecutor still acts in a quasi-judicial role though. The prosecutor must balance the wishes of the victim against protecting the rights of the accused. He cannot be an advocate solely for either. The United States Supreme Court in Berger v. United States, 295 U.S. 78, 88 (1935), declared:
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer."

In the case at bar we have a scuffle between two adult males. It went beyond a simple barroom shoving match in which Mr Scarberry, although he made a hospital visit at a cost of $4,000, was not permanently disfigured or disabled. So there are certainly crimes out there that may be of greater importance in prosecuting based simply on an offense level. However, I believe there is a clear distinction in this case.

The children's mother, Christine Porcaro, began an antagonistic relationship with Craig a year ago when Glabraith came onto the scene. Scarberry's first interaction with Galbraith was a series of text messages wherein Galbraith tried to establish his dominance and taunted Craig to come over and see what happens. Soon after, Craig obtained an ex parte order for protection against Galbraith which he ultimately dismissed in an effort to promote civility between the three adults.

Galbraith would have none of it and continued to cause disturbances in front of the children in addition to continuing the pattern of harassing text messages.

There were some unique circumstances surrounding the 11 November 2010 attack. Typically, Galbraith would drive Christine to the parenting time exchanges, which had been taking place in public areas, while she managed the children. However, on this date, Christine sent a text to Craig asking him to come to her house for the exchange. Craig declined and instead insisted on meeting at McDonald's. Porcaro at that time had an order for protection against Scarberry which prevented him from coming to her home.

There is where Galbraith, who was in the passenger side of the vehicle, exited and attacked Scarberry as he approached the vehicle. It is my belief, based upon these subtle changes in routine, that Porcaro had planned this attack with Galbraith. Porcaro has essentially committed an act of domestic violence through a surrogate. Moreover, the children were in the car and witnessed the attack. Although terrorized and crying, Porcaro did nothing to stop the attack or assuage the children's anxiety. Had Porcaro actually committed the physical attack rather than direct someone else to do it the offense would have been a felony.

This is the compelling reason that I believe this case should be prosecuted. Adamson and Thompson (1998) found that children from homes in which there were domestic violence were nine times more likely to use verbal or physical aggression to intervene in parental conflict than were children from violence-free homes (27% vs. 3%). Porcaro is teaching these children that conflict should be resolved through violence.

I am not asking that bed-space be reserved for Mr Galbraith at the Madison County Jail. I could be satisfied with less than a plea-bargain. Considering his admission to the police of the elements of the crime I think Mr Galbraith would be well-informed to accept pre-trail diversion in this matter.

Here is some information about pre-trail diversion.

The National Association of Pretrial Services Agencies Standards on Pretrial Diversion describes pretrial diversion, also called pretrial intervention [PTI], as a dispositional approach that has the following elements:
1) It offers persons charged with criminal offenses alternatives to traditional criminal court proceedings;
2) It permits participation by the accused on a voluntary basis;
3) It occurs no sooner than the filing of formal charges and no later than a final adjudication of guilt; and
4) It results in dismissal of charges, or its equivalent, if the divertee successfully completes the diversion process.

John Clark of the Pretrial Justice Institute describes the diversion process in the following way. Eligible defendants will apply for admission into pretrial diversion. They will be screened by a pretrial diversion program and a decision made by either the prosecutor or the court to accept or deny the application. If accepted, participants enter into an agreement, usually with the prosecutor but in some jurisdictions with the court, to abide by certain terms, such as attendance at counseling, community service, or restitution to victims. Their criminal case is held in abeyance while they are in the diversion program. If they abide by the terms within the diversionary period the charge is dismissed. If they fail to do so, the diversion is terminated, and their case is reinstated to the court docket for prosecution.

On Friday 10 March 2011 Mr Galbraith appeared at a hearing on a Petition for a Protective Order. There he was placed under oath and testified. Much of his testimony directly contradicted that of Craig Scarberry, the information in the police report and the report of Child Protective Services. It is my firm belief that he perjured himself in that proceeding.

This included his testimony that Craig initiated the attack and that Galbraith was only defending himself. He also testified that there were no other incidents of his being in a physical altercation with Scarberry. Likewise he denied that there was a pattern of intimidating or threatening communication. Yet, I have read the texts and prior Protective Order.

If, as Mr Galbraith claims, this was one isolated incident in which he was just defending himself then pre-trail diversion would be appropriate. Rather than dismiss the charges I believe that the prosecutor, Rodney Cummings, should offer pre-trail diversion to Galbraith.

Cummings and I spoke briefly on Friday. Actually it would be better characterized as he listened to me. As much as I don't agree with much of the way the judicial system operates in Madison County I must commend these public officials for always calling me. Cummings informed me that he would look into the case again.

Cummings has to make a choice; will he honour the will of the people who want to see children protected from exposure to violence like this, or, will he give the green light to people who have yet to be convicted to keep continuing their criminal activity?

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Molding your lifestyle to win a child custody battle

I currently have a few clients who have attorneys doing their courtroom work for them which gives me time to work on the parents lives and not trying to teach them how to represent themselves.

Much of the focus on child custody battles has been on the legal procedures and subsequent strategy. This is usually court-room based but there is an equally important, though often overlooked, strategy that you must dedicate time and resources to if you want to ensure that you have every advantage possible and a healthier parent-child relationship. Those are primarily parenting behaviours.

There are eight statutory factors listed in I.C. § 31-17-2-8 that a court must consider. These are the first factors that must then be discussed in developing a plan on how to examine your parenting behaviours in the context of a child custody battle. These are;
(1) The age and sex of the child.
You can't change these but what we can work on is ensuring that you are fit to provide care for a child of these particular demographics.
(2) The wishes of the child’s parent or parents.
This comes in two parts, one you will have little control over. The other you can have significant control over including the way you present it. I have seen a father go into court and say, "I want just as much time with my child as his mom gets". I can show you the correct way to ask for the same thing by making it child-focused rather than appearing only as wanting to divide the child like a bank account balance.
(3) 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.
There is more that you can do about this than you likely think, especially if you have regular parenting time. However, you should know that this factor is not given nearly as much weight as most parents think.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling;
(C) any other person who may significantly affect the child’s best interests.
If these are people in your household or life then you can significantly affect those relationships. For the people in the other parent's life you can still get information about your child's relationship with them while not engaging in the improper interrogation of your child. I will show you some creative ways in how to do this.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
This is an important factor and given significant weight. If you are the custodial parent then this will be rather easy for you to demonstrate but is not automatically in your favour. Being a non-custodial parent is more of a challenge but also manageable while not engaging in the improper interrogation of your child.
(6) The mental and physical health of all individuals involved.
Here is where it gets rather complicated and often where the most work needs to be done. I can demonstrate to you how your mental and physical health is considered by the court. You will be positioned to show how your health is advantageous to your child while the other parent's health condition may be detrimental.
(7) Evidence of a pattern of domestic violence by either parent.
This is one that it either did or didn't happen. However, there are ways to mitigate or aggravate this factor.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
There is often conflict over what constitutes a de facto custodian. I can show you how to use this to your advantage or mitigate it to your advantage.

Those are just the minimum requirements for the court. There are many more considerations that can be raised. This will be sensitive to your family dynamics but some things are universal. While still not acknowledged in the DSM many courts are now recognizing Parental Alienation. As a parent you want to ensure that you are not alienating your child from his or her other parent.

I have associates who can coach you specifically about this if I feel you need it. You can also be taught how to recognize and combat Parental Alienation if you are the target.

Who are you as a person? Some deep introspection will be beneficial. Are you a dependent person; needing drugs, sexual partners, constant thrills or an extensive support network just to make it through the day? Or maybe you are a parent who has a seat cushion permanently attached to your posterior while the muscles in your eye have become fixed on a focal point that possibly by chance just happens to be the same distance as the couch to your television or the chair to your computer screen.

What is your civic involvement and where do you reside on the scale between givers and takers? I am not going to magically transform you into parent-of-the-year but I can help guide you into displaying the actions and behaviours that will be most favourable to you in the fight for custody.

Ultimately though, it is going to be you who will have to commit to fulfilling your duty to provide for the best interest of your child. This may require that you not fight at all.

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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, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Why I may not take your Child Custody Case

Over time I have consistently had an increase in requests for my assistance. This includes assisting attorneys, lobbying, advising policy-makers and assisting litigants managing themselves through child-custody litigation. Throw on top of that my political activities during election times and it's easy to understand why I cannot assist everyone who desires consultation with me.

Assisting the ACLU with the Craig Scarberry case and getting his parental rights reinstated and children returned to him, at least until the appeal can be decided, has only increased this demand. Top that off with Craig mentioning me by name on MSNBC and it becomes crystal clear that maybe I should be giving thanks to our Democrat legislators, who have gone on strike and are manning the picket conference room in Illinois, for allowing me time to sleep.

To relax and get some semblance of leisure time I write this blawg.

So with my time this stretched I cannot assist everyone who asks me. Often times people simply disqualify themselves through contact with my scheduler. This filter has been the most beneficial thing for myself and parents whose children need my assistance in helping regain or build their relationship during a custody conflict.

Someone who is unable to take the small steps of completing an application, setting up an appointment to meet with me and then actually arriving for that meeting with the requested documents won't get my help. It's not just that the opportunity to get started has been missed but, more to the point of parenting, those few tasks are minor compared to the demands that will be placed upon anyone to raise a child.

There is no way that I am going to support a parent in a fight to get custody or parenting time with his or her child unless that parent also meets my moral standards. This is the reason I have always required that potential clients complete an application.

Yesterday I received a follow-up email from a potential client who said that she spoke to an attorney about her case. In short the attorney didn't paint a hopeful picture so she said she decided to give up and won't be seeking my assistance.

This provides me with the opportunity to make a point on two things. First, when you see an appellate decision that says "affirmed" or "reversed" that usually means that one of the two attorneys was wrong. Sometimes an Appellee doesn't file a brief [argue the case] or a litigant is pro se, but in most cases an attorney is wrong in his or her interpretation of the law or the facts.

Second, refer to the Scarberry case. Had it not been for my consultation with his appellate attorney Craig's children would still be denied medical care and be subjected to further alienation from him. This is because the Motion to Stay the trial court's judgment, written by Ken Falk, would not have been filed. It is an unusual application in a child custody decision under appeal but based upon my observations I was confident that it was appropriate in this case and would be granted although I never personally revealed that to Craig.

Point to be made here is that this potential client got the opinion of one attorney and then completely discounted my expertise in the field of parent-child relationships. It's like having a heart attack and then going to your GP with chest pains a week later, being told it's probably not heart related and then canceling your appointment with your cardiologist based upon your GP's "probably". Just as a cardiologist is a specialist as compared to a GP, I am a child custody consultant only as compared to most attorneys who practice across multiple disciplines and are concerned primarily with only the legal aspects of the parent-child relationship.

If you wouldn't care anymore about your own health than that, and would apply the same to your child, then I don't want to assist you in your quest to get the authority to make those types of decisions for your child.

Once some of these people weed themselves out there is still more than I can handle. What I look for are parents involved in cases that will have wide application. Primarily this is done through appeals where, if an opinion is published it can then be applied in future cases and provide guidance to other parents about court's views on parental behaviours. I suspect that the Scarberry case will get published.

Another way is through legislative action. Cases that clearly demonstrate and provide support for the need of legislation that affects child custody always piques my interest a little more than those which are typical cases.

Ultimately though my decision on whether to dedicate myself to a parent will be dependent upon whether the parent's desire will serve the best interest of the children. I will determine this through an interview where I will not be fooled. So, if you want my assistance then the first thing you best want is what is best for your children, the parent-child relationships, and a workable parent-parent relationship. Any hostility or animosity towards the other parent, desire for retribution or longing for "your rights" and "justice" should be left in the past.

I am willing to work with you and your children for the now and the future. I'll follow this posting with - Molding your lifestyle to win a child custody battle - where I will touch upon all the services I provide in ensuring that you are the best parent you can be for your child and what you should anticipate the judicial preferences for parental behaviour to be in a contested child custody battle.

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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, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Civil Protection Orders in Child Custody Proceedings

The stated purpose of the Indiana Civil Protection Order Act [IC 34-26-5 et seq] is to provide for the "protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and prevention of future domestic and family violence."

The Act provides that a person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a family or household member who commits an act of domestic or family violence, stalking, or a sex offense. The Petition for an Order of Protection is an independent action and requires no filing fee. The Act further provides that relief may not be denied because of a lapse of time between the alleged act and the time of the filing of the petition. There is also no minimum residency requirement. Thus, although to the extreme, a one-night-stand from 20 years ago could file a petition and ask for occupancy of your home.

Civil protection orders are not mutual. Judge are actually forbidden by statute from making mutual orders. This prohibition has been used to allow the "protected person" to invite the target of the order over to talk about reconciliation and then have sexual relations. Before the target is able to leave the house the police are there and he or she is arrested.

It's not difficult to see how this type of one-sided restriction could be systemically abused, and it is. Especially in child custody battles. You may read more about this in the testimony I was invited to give before a committee of the Indiana General Assembly.

I have recently been involved in two child custody cases where abuse of Civil Protection Order Act has been an issue.

The first involves our beloved 'Mother-of-the-Year' Christine Porcaro. If you have been following my postings on the Craig Scarberry case then you are quite familiar with this demon who harms her own children to get back at Craig for divorcing her.

Although Porcaro claims to be the victim of domestic violence and that she is fearful of Craig, she is the one that drove her boyfriend, Brandon Galbraith, to a McDonald's parking lot where Galbraith exited the passenger side of the car and attacked Scarberry. Porcaro did this with their three children in the car watching and she did nothing to stop the attack. Galbraith has since been charged with battery. I will be seeking to have Porcaro charged also based on her inducing or facilitating Galbraith's attack.

Preceding one parenting time exchange Porcaro called the police and alleged that Scarberry was harassing her and violating the order. However, I was at the police station less than 10 minutes earlier when an officer called her, informed her that withholding the children was a criminal offense, that he was sending Scarberry to her place of employment and that when Scarberry arrived she was to send the children out.

Porcaro also contacts Scarberry and tries to engage him in conversation in violation of the Order for Protection. On Thursday 03 March 2011 she called Scarberry four times in short succession and was verbally abusive to him. Although Scarberry repeatedly terminated the calls, Porcaro was not doing anything in violation of the order.

Porcaro was apparently upset by some comments that were made about her. Those may have been what I posted the day before:

Desperate times call for desperate measures. Christine Porcaro, the poster-child for joint legal custody, is clearly desperate to get back to having the legal authority to return to the position where she can continue to abuse and neglect the children.

Well Christine [I know you read my blawg since you have already said you do] I say this to you, its very unfortunate that the pathology of your mental defectiveness is so extreme that you continue to litigate this case ad nauseum, expose your children to violence and, abuse and neglect them during your parenting time. Fortunately though there are people in the world who care for your children more than you do, without ever knowing them, and are working diligently to oppose your efforts at causing upheaval in the lives of your children and harm to them.

Yet, Porcaro's attorney's, Anthony Lawrence and Lanae Harden continue to condone and actually encourage this type of behaviour. Porcaro's continued harassment of Scarberry and her mental instability are setting her up to be the target of a legitimate protective order.

The second case involves a more technical legal issue with concurrent protective order and dissolution actions. In this case the sperm donor who abandoned the mother and child filed for emergency custody about two weeks after having no contact with mother or child.

The day before the hearing on custody the donor filed for an order of protection against the mother alleging domestic violence and stalking. The donor had the nerve to complain that the mother was repeatedly sending text messages to him and even asked him to bring diapers over for the baby. It's important to know that he had titled both of their vehicles in his name only and came to the apartment with the police to take the car she used. He ignored all of her requests. He even ignored my attempts to facilitate parenting time for him until he responded that he did not want me to contact him.

The order was served on the mother as she entered the courtroom for the emergency custody hearing. The donor's attorney, Pamela Buchanan, said she had nothing to do with her client filing that. This may be true as he was the one who had already been through the process after being convicted in relation to a DV incident with his former wife.

When the protective order came on for a hearing mother was prepared to refute the donor's claims. Buchanan galloped in on her high horse but was quickly dismounted by one of my big-guns attorneys. One of the problems for the donor was that he had told someone he got the order so he could get the mother to violate it, get her jailed and then get custody of the child he had abandoned.

As in the case with Porcaro he had also contacted the target and tried to engage in conversation which would violate the order.

What attorney Buchanan was missing is the understanding about the jurisdictional issues involved in protective orders. The purpose of the act is to facilitate the protection of an individual in a prompt and effective manner. Part and parcel to this is the independent action status and no filing fee which gets the matter before the court expediently.

Yet in this case there was already an underlying paternity action, the parties had already been served notice of a court date and, in fact, the custody hearing was set for the next day. The paternity court has jurisdiction to entertain petitions for orders that would serve the same purpose and effect as one filed under the Indiana Civil Protection Order Act. Thus, seeking a separate action for an order of protection was redundant and wasteful of the court's time and resource.

Buchannan, faced with this and the declaration from mother's attorney that she was welcome to proceed to hearing and be beaten, then agreed to dismiss the petition for protection in favour of an order from the paternity court restricting the parties from contacting each other for more than 10 minutes per day.

Civil Protection Orders have a legitimate and proper place but the abuse of them should not be tolerated by judges, practitioners or litigants themselves. These are just more examples to be added to my warchest of cases when I go before the Indiana General Assembly asking for changes to the Indiana Civil Protection Order Act.

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©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Pro Mother Child Custody Bias Still Very Alive in Indiana

Those of us who are advocates and specialists in the child custody discipline know that what was known as the "tender years doctrine" has been empirically disproved. According to research by Warshak (2000), and Kelly and Lamb (2001), other things being equal, infants and toddlers – better than many experts once thought – are able to manage and even benefit from overnight periods of placement away from primary attachment figures. That is these children seem to adjust fine to overnights with other attachment figures, primarily the father.

Joan Kelly and Michael Lamb (2000) have found that infants and toddlers need regular periods of placement with each parent to maintain these attachments. Marsha Kline Pruitt and her colleagues (2007) emphasize that children adjusted well to “overnighting” with secondary placement parents when the schedule remained stable or “consistent” from one week to the next.

Although this research has been widely disseminated for nearly 10 years now there are still judges who adhere to outdated principles and concepts and have an explicit bias towards mothers in child custody placement decisions. Much to the detriment of these children they are not getting to spend overnights with secondary attachment figures and are therefore not developing those bonds.

The current Indiana Parenting Time Guidelines provide that newborns shall, at a minimum, spend three 2 hour periods with the father per week. If the father has significantly provided regular care to the child prior to the separation or divorce then overnights shall be considered. The Domestic Relations Committee now reviewing the Guidelines is going to amend them to presume, consistent with the latest research, that overnights with newborns is appropriate.

What has been unusual and is now rare is the bias that adolescent children automatically belong in the custody of the mother. It has long been held that a trial court must ensure “that the policy of stability remains a guiding factor in determining whether a custody order should be modified.” Bryant v. Bryant, 693 N.E.2d 976, 979 (Ind. Ct. App. 1998), trans. denied.

The effect of divorce or separation on children depends greatly upon not which parent is a primary caregiver but according to Blakeslee & Wallerstein (1989), the behavioral reaction of a child to divorce has been shown to correlate with the age group when the divorce or separation occurs.

As it is the policy of the State of Indiana and the empirical evidence demonstrates, children need stability, routine and permanency in child custody placement regardless of who the primary caregiver is. Our Court of Appeals has long held that it is erroneous to presume that a mother should have custody of her children simply based on the nature of the mother/child relationship. E.g., Brokus v. Brokus, 420 N.E.2d 1242, 1249 (Ind. Ct. App. 1981).

So with that set-up now let me move you onto the substance of this posting. The Indiana Court of Appeals on 28 February 2011 just rendered its decision in Sausaman v Hutchens which was heard at the trial court level by Judge Joe V Sutton.

Judge Joe V Sutton

The father, Gregory Sausaman, argued that the trial court erred by denying his motion to change custody. The panel found that Gregory met his burden of establishing a substantial change in relevant statutory factors and showed that modification was in his daughter’s best interests. The judgment was reverse and remand for further proceedings.

The Evidence

The following evidence is undisputed. Jennifer and Gregory’s marriage dissolved in 2006. Notwithstanding some instability in Jennifer’s living situation, L.S. remained in the same school through the next few years. In 2007 and 2008, although Jennifer still lived in Indiana and had custody of L.S., L.S. was spending the majority of her time at Gregory’s house. For example, from January through June 2008, L.S. spent an average 20.3 nights per month at Gregory’s house.

In August 2008, Jennifer left L.S. in Gregory’s custody and moved to Alaska. Their plan was for L.S. to live with Gregory during the school years and visit with Jennifer during summer breaks. Jennifer returned to Indiana in March 2009 and spent three days with L.S. Aside from those three days, L.S. did not see her mother between August 2008 and the summer of 2010, when L.S. traveled to Alaska.

During the nearly two years in which L.S. lived with Gregory, she lived in a neighborhood filled with friends and upstanding members of the community. She attended the same school, where she was very successful, involved, and well liked by peers and teachers. Gregory and Denise were both very involved with L.S.’s school and sports activities. L.S. spent a great deal of time with her paternal grandparents, and also occasionally saw her family on her mother’s side. L.S. appeared to be a happy, well adjusted, successful person during those years.

When C.S. was still living in Gregory’s home, there were not enough bedrooms for L.S. to have her own. So Gregory put up a ceiling-to-floor, wall-to-wall curtain in his bedroom, and L.S. slept on one side of the curtain while Gregory, and sometimes also Denise, slept on the other side. Gregory and Denise never engaged in any activity that would be inappropriate for L.S. to have overheard. C.S. has now moved out of Gregory’s home and L.S. has her own bedroom.

Substantial Change?

In sum, it is undisputed that for nearly two years before the hearing, L.S. lived with Gregory and saw Jennifer only once, for three days, before the summer of 2010. And even before Jennifer moved to Alaska, L.S. spent the majority of her time—including nights—with Gregory. L.S. thrived in every way in Gregory’s care and was well adjusted to her home, school, and community. We find that this evidence establishes that there was a substantial change in one or more of the section 8 factors between the time of the initial custody determination in 2006 and the time of the custody modification hearing in 2010.

Findings

Judge Sutton made his ruling based primarily on a 15 minute in camera interview of the child. He then found, the special bond between a mother and daughter should be fostered; L.S. needs to be with her mother so they can do “girl things[.]”

Conclusion

Even though Mother was the legal custodian of the child, L.S. had been living solely with her father for nearly two years and had been living primarily with him for years before that. She was thriving. It was erroneous to try to “fix” that situation by uprooting her from her community, school, extended family, brother, and father.

The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.

My final thought

It seems shocking to conceive that a judge could possibly remove a child from the living arrangement that she has known for over two years, in which she had no contact with mother, and change this because he thought she and mother should do "girl things". This is another of the examples in my arsenal of cases supporting legislation to require supported findings and conclusions from judges in child custody cases.

Judge Joe Sutton should crawl out of his cave more often and get educated about child development. Children are not a possession for parents to fight over. Children are not miniature adults who are immune from the harms caused by being uprooted and removed from significant attachments. But most applicable in this case, daughters are not over-sized dress-up toys that moms can play "girl things" with.

Judge Sutton drop your biases and pick up a book. Maybe then you can join those of us who actually seek to place children in custody arrangements that reflect their best interest.

If you would like assistance with your child custody case please contact my scheduler for details.

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Make a suggestion for me to write about.

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.

Tweet

Subscribe to my child custody updates

* indicates required

Email Address *

First Name

Last Name

©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.