New Published Opinion on Arbitration and Child Custody

In Brockman v Brockman, published opinion handed down on 17 December 2010, the dispositive issue before the court was whether the trial court erred in concluding that Father‟s petition to modify custody had to be submitted to arbitration, pursuant to an earlier agreement signed by the parties.

In June 2007, Father filed a petition to modify legal custody. In February 2008, the trial court entered a final decree of dissolution, in which it incorporated its earlier child custody order but made no mention of Father's pending petition to modify legal custody. The parties later agreed to arbitration for the purpose of settling an education issue.

The trial court entered an “Order Approving Family Law Arbitration.” The order stated in part, “The parties will submit issues of dispute to Family Law Arbitration in accordance with the Family Law Arbitration Statute . . . .”
The agreement also stated, “The parties acknowledge that in the absence of an agreement in writing to repudiate this Agreement, it is valid, irrevocable, and enforceable until judgment is entered in such matters in which arbitration has occurred.”

On February 23, 2010 a hearing was held where the only matter discussed was whether Father's still-unresolved petition for modification of legal custody had to be submitted to arbitration. After the hearing, the trial court entered an order finding that the August 26, 2008 arbitration agreement bound the parties to continue with arbitration throughout the pendency of this action. The trial court concluded its order by stating, “Because of the novelty of the matter presented, the Court finds this should and shall be treated as a final decision so as to allow immediate appeal should [Mother] desire to appeal this decision.”

In Mother's response to the argument that this was an interlocutory order not subject to appeal she directed the appeals court to Evansville-Vanderburgh School Corporation v. Evansville Teacher's Association, 494 N.E.2d 321 (Ind. Ct. App. 1986). In that case the Court of Appeals held, “[a]n order compelling arbitration is an appealable final order in an action solely for that purpose because such an order has fully decided the issue before the court.” That is the order compelling arbitration may be appealed, not an issue decided during arbitration.

The arbitration agreement here arose under the auspices of the Family Law Arbitration Act (“FLAA”), which was enacted in 2005. No appellate court in this state has yet had the occasion to address the FLAA which makes this case worth reading.

Under Indiana law, a party seeking to compel arbitration has the burden of demonstrating the existence of an enforceable arbitration agreement. Showboat Marina Casino Partnership v. Tonn & Blank Construction, 790 N.E.2d 595, 597-98 (Ind. Ct. App. 2003).

The FLAA permits a broad range of family law matters to be submitted to arbitration, including dissolution actions in their entirety, actions to establish child support, custody, or parenting time, or petitions to modify any decree, judgment, or order entered under Indiana Code Title 31. As for this particular agreement it did mention the issue of the child's education but did not mention father's pending motion to modify legal custody.

The agreement states that it is “valid, irrevocable, and enforceable until judgment is entered in such matters in which arbitration has occurred.” This closely parallels the language of Indiana Code Section 34-57-5-3, which provides that an arbitration agreement is valid, irrevocable, and enforceable “until the judgment is entered in the matter in which arbitration has taken place.” Although the agreement refers to “matters” in the plural, while the statute refers to “matter” in the singular, the fact remains that only one “matter” ever has been submitted to arbitration in this case and only one judgment has been entered. Since the statute's reference to “matter” in the singular, after which an arbitration agreement may be terminated, is indicative of legislative intent that such agreements in the family law realm address specific disputed issues, rather than permitting open-ended agreements to encompass any future issues that may arise between the parties, unless of course the agreement clearly states to the contrary. The agreement here, however, does not clearly indicate an intent by the parties to arbitrate all possible future issues.

Although Indiana recognizes a general policy towards favoring arbitration, the appeals court will not construe an arbitration agreement to apply to matters not clearly delineated by the agreement. See Showboat Marina Casino, 790 N.E.2d at 598. The agreement here did not clearly state that it was to apply to Father's petition to modify legal custody, or that it was to apply to any possible dispute that might arise between the parties for an indefinite period of time. The trial court erred in concluding otherwise.

When presented with an arbitration agreement it is important that you be clear and precise as to what issues it is to relate. I disfavour open-ended agreements that, although may be expedient at the time, do not allow for the court to entertain future issues related to child-custody.

It is much easier for the parties to simply change language in a previous agreement to cover a new issue than it is to try to revoke an open-ended agreement.

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Profile of an Alienating Parent

There is a type of parent who holds a grudge against, wants to punish or wants to continue to control a former spouse and engages in a series of predicable and almost uniform events that ultimately harm their child. This person is the alienator.

The Scarberry case provides a great opportunity to see this in action. When the Scarberry marriage dissolved in early 2007 Craig and Christine decided and settled upon an agreement that they would share both legal and physical custody of their three young children. This process worked well for them and the children. Even as recently as February 2010 they were having sexual relations together but not co-habiting.

Then came a bit of tension in the relationship, almost as though they were experiencing the moments leading up to divorce again. As the parties had maintained an amiable relationship for the past three years, which had served the children well, Craig wished to maintain that. To do so, he offered and scheduled for them to meet with a mediator and Christine agreed.

But when the time to meet the mediator came Christine was not there. Three days later she filed a Motion for Modification of Child Custody. Contemporaneously she also filed a Petition for an Order of Protection which was granted ex parte, which means without an opportunity for the Respondent, Craig, to respond.

At a hearing on the Petition for Protective Order and Motion to Modify Custody her claims were refuted by witness testimony. She also admitted that when she stated that she would try to resolve issues through mediation that she actually had no intention of doing so. She simply wanted to catch Craig off guard. A typical strategy of an alienator.

Throughout the 20 hours of hearings Christine Porcaro continued to insist that the man she had selected to have three children with was unfit to be the father of her children.

Sound like Christine Porcaro? Are the children of the "Christian" woman better off without their father's involvement in their daily lives and the major decisions that will affect their education, health care and religion? Christine Porcaro and her attorney Anthony C. Lawrence think so.

To make an accurate assessment though let us first look at the record.

Based upon her admissions in court an investigation by the Madison County Department of Child Services has an open investigation on Christine Porcaro for suspected neglect of their children. MCDCS visited Porcaro's home on Thursday 02 December 2010.

So why did that happen? Scarberry and Porcaro's youngest child has Cerebral Palsy which causes her some difficulty in walking resulting in some falling. Did Porcaro feel that it was necessary to attend to this child's needs or that it was fine for her and her older brother, now age 6, to be left home alone? She admitted in court and the court including in its findings that she chose to leave the children home alone.

Did Porcaro feel that it was necessary to attend to the children's need to be properly nourished or that it was fine to send them to school or daycare without breakfast? She admitted in court and the court including in its findings that she chose to neglect them by failing to provide them with proper nourishment in the morning.

Research indicates that proper nourishment has a positive impact on learning.

Did Porcaro feel that it was necessary to properly restrain the children while they were traveling in her vehicle? These children are now age 4, 6 and 7. She admitted in court and the court including in its findings that she chose to use child safety restraints for the children at times when they were traveling in her car. This is a violation of Indiana law.

Could it be that mother's live-in boyfriend, Brandon Galbraith, who came to reside with her in early 2010 provides such a stable and supportive environment for the children that she feels the children no longer need their father's involvement in their lives? After receiving the Court's Order in November 2010 which denied to the children their right of access to their father, Porcaro allowed Brandon Galbraith to send taunts to Scarberry through email.

More upsetting though is that during the next parenting time exchange Porcaro allowed the children to watch Brandon Galbraith violently attack Scarberry for about three to four minutes. The children were screaming and crying, visibly shaken by witnessing the physical assault on their father which resulted in emergency care at a local hospital.

Brandon Galbraith is now scheduled for an initial appearance in the Anderson City Court on 29 December 2010 at 9:00 a.m. to face criminal charges in the case.

You must be wondering at this point what did Craig Scarberry do that would lead Master Commissioner George Pancol and Judge Thomas Newman to collectively decide that Porcaro is significantly more fit to parent these children than Craig Scarberry. Could it be that he used profanity within earshot of the children at some point during his marriage? The Court says he did.

In Master Commissioner Pancol's 83 years I am confident that he has heard the phrase; sticks and stones may break my bones but words will never hurt me. Not so in Pancol World where words hurt but leaving young children unattended at home, not using safety restraints for them in vehicles and failing to feed them is not potentially hurtful to these children.

I don't seriously think that custody was decided upon some utterances made after someone stubbed his toe, got frustrated over someone's failure to care for the children or whatever the circumstances may have been. No, I think it had to do with what the Findings actually said; that Scarberry had changed his religion from Christian to agnostic.

What type of parent thinks that her religious preference is better than the other parent and the children should lose their connection to that parent? Christine Porcaro.

What more can Porcaro do to alienate the children from their father. She could deny them the opportunity to have parenting time with their father as she did on 09 December 2010 after her attorney, Anthony C Lawrence, told her to do so.

She could try it again which she did. I was there while an Anderson Police Department officer told her she was in violation of the law for concealing the children and not allowing them to see their father during the time ordered by the court. Porcaro argued with the officer, lied to him during his investigation but ultimately conceded and said she would allow Craig to come retrieve the children.

So what happened when Craig went to get the children. Police were there who informed him that there was a complaint that he had been calling her on the phone and harassing her. Yet, just moments earlier I was there while Craig was not on the phone but instead listening to Poracaro argue with a police officer about whether she would follow the court's order and allow the children to have time with their father.

Another false allegation by Porcaro who with the assistance of her attorney, Anthony C Lawrence, lie to police and the court in an attempt to manipulate the legal system for the purpose of alienating three children from their father and, instead, placing them in potential harm.

So what type of person selects a mate, takes a vow to remain committed to that person for life, breaks that commitment and then tries to remove that person from the children's lives? The Parental Alienator.

David Pissara describes this person as an individual who often "suffers from some type of mental illness. The alienator perceives and portrays themselves as the victim. They are obsessed, consumed and driven, by the goal of destroying the “target” (rejected) parent in the eyes of the child (or children). They enroll family, friends, co-workers, neighbors, schools, churches, police, and the courts in their quest to remove the target parent from their child’s life."
"They need the rejected parent branded as an “abuser” in order to feel good about themselves and their actions. These people are damaged and in desperate need of professional psychological help and extensive therapy."

Christine Porcaro is so neglectful of their children and mentally damaged that the only way she can feel better about being a worthless parent is to try to destroy the relationship that their children have with their father. She is neglectful of the children and emotionally unstable that she tries to portray herself as a victim. She convinces herself that she is not the harmful parent by saying Craig is. Well Christine Porcaro is wrong and needs extensive therapy.

Complete information by Pissaro about parental alienators may be found here.

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Due Process in Custody Case Still Required Regardless of Outcome

The Honorable Mary R. Harper, Judge of the Porter Superior Court, may think that as long as the outcome is the same the process by which one gets there is superfluous. Fortunately, a panel of the Indiana Court of Appeals has found otherwise. What Harper felt was unnecessary was notifying a father that his child had been taken from the mother by the Porter County office of the Indiana Department of Child Services [PCDCS] who sought to terminate the parent-child relationship.

I'll start by telling you that these are not model parents. The evidence demonstrates that the mother uses crack cocaine and had placed the child in, or potentially in, serious harm. Father has been incarcerated for nine of the past 12 years and has had little contact with his child.

Father had signed a paternity affidavit at the hospital where the child was born and was listed as the child's father on the child's birth certificate. So when his paternal rights were terminated he appealed to the Indiana Court of Appeals which rendered its decision in the published opinion, Involuntary Termination of the Parental Rights of JSO, on 07 December 2010.

After mother crashed her car with the six-weeks of age child in it police found crack cocaine and drug paraphernalia in the vehicle. At the time of Mother's arrest, Mother informed the authorities that the child's biological father was incarcerated, and that there was no other adult available to assume custody of the child.

The following day, PCDCS investigating case manager Michael Fiala spoke with Mother at the Porter County Jail. Mother admitted to Fiala that she had bought and used crack cocaine prior to getting into the car and driving with the child the previous night. Mother also provided Fiala with Father's name, stated he was the child's biological father, and further explained that Father was incarcerated in the Lake County Jail on an outstanding robbery warrant. Fiala included this information regarding Father's name and whereabouts in his “Detention Hearing Report to the Court” filed on July 10, 2008.

On July 16, 2008, PCDCS filed a verified CHINS petition which did not name Father as the child's biological or alleged biological father, but instead contained the following language: “Paternity of [the child] has not been established . . . .” A blatant lie. Subsequently, father was not provided a copy of the CHINS petition, nor informed of the CHINS initial hearing date.

On August 6, 2008, PCDCS filed its pre-dispositional report with the trial court, which indicated under the sub-heading “Parental History” that “paternity has not yet been established for [Father].” The report later indicated, however, that the child's family formerly “consisted of [the child] and his parents. The father is currently in Lake County Jail . . . .”. Nevertheless, Father was not made a party to the CHINS proceedings, he was not offered and/or referred for reunification services, he was not provided with a copy of the pre-dispositional report, and he was never advised that a dispositional hearing had been set for August 19, 2008.

In March 2009, PCDCS filed a petition seeking the involuntary termination of both Mother's and Father's parental rights to their child. This time, however, PCDCS named Father as a party to the proceedings and mailed a copy of its termination petition to Father. Father, who remained incarcerated, thereafter participated in all termination hearings, either in person or telephonically.

The Legal Requirements to Provide Notice

Pursuant to Indiana Code section 31-34-3-4, notice that a child has been taken into custody under Indiana Code chapter 31-34-2 “must” be given “to each of the child's parents as described in sections 1 through 3 of this chapter.” Ind. Code § 31-34-3-4(2) (emphasis added). Father, although known, was not notified.

Indiana code section 31-34-3-2 requires PCDCS to make a good faith effort, not more than six (6) hours after the child has been taken into custody, to leave written notice at the last known address of the child's parent and that the child has been taken into custody. The record reveals no such notice was ever provided to Father in the present case, despite PCDCS's admitted knowledge of Father's whereabouts. Moreover, Father was never provided with notice of any subsequent CHINS hearings or copies of CHINS documents, including PCDCS case plans and trial court orders, in violation of numerous additional CHINS statutes.

One of those statutes is I. C. § 31-34-4-6 which states that the county office of family and children shall submit written information to parent of alleged CHINS regarding parent's legal rights to be represented by counsel, cross-examine witnesses, and present evidence on their behalf at each CHINS court proceeding.

Further, I. C. § 31-34-9-7 states that the child's parents are parties to CHINS proceedings and have all rights of parties under Indiana Rules of Trial Procedures.

Directly to the responsibility of the court is I. C. § 31-34-10-5 which states that the trial court has duty to inform parents that if a child is adjudicated a CHINS, parents may be required to participate in a program of care, treatment, or rehabilitation for the child, be held financially responsible for services rendered to the child, and may controvert any allegations made during dispositional or other hearings concerning the parent's participation.

Finally, I. C. § 31-34-15-3 states that a copy of completed case plans shall be sent to the child's parents and I. C. § 31-34-16-4 mandates that the trial court shall advise parent that failure to participate in services as required by dispositional order of court can lead to termination of parental rights. Neither of these was done for Father in this case.

Due Process Case Law

A panel of this court has previously held that a parent's interest in the care, custody, and control of his or her children is arguably one of the oldest of our fundamental liberty interests. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Further, in particular, this termination action concerns Father's interest in the care, custody, and control of his child, which has been repeatedly recognized as one of the most valued relationships in our society. In re E.D., 902 N.E.2d 316, 321 (Ind. Ct. App. 2009), trans. denied.

Terminating Father's relationship with his child, whatever it may be, requires significant due process as clearly indicated in the Indiana Code sections shown herein. Court's have long held that the bond between a parent and a child is a sacred right which should only be terminated as a last resort.

Yet, in this case, Judge Harper had already decided that Father was unfit and was not worthy of being provided notice of the CHINS proceedings or an opportunity to be heard on the matter.

Even if notice had been supplied to Father and he was able to fully participate in the proceedings the result would have likely been the same. Justice Kirsch in a dissent stated, "Other than sperm donation, the Father has made no contributions to the life of this child. He has no relationship with the child, has seen the child only two or three times since he was born, and has not seen him at all since July 2008. He has not contributed to the support of his child in any way. He has had a drug addiction that spans most of his adult life and has spent a significant portion of that life in prison."

However, this panel of the Court of Appeals rightfully concluded, [W]e simply cannot ignore PCDCS's and the trial court's failure to follow numerous and substantial statutory mandates in this matter. As such, the situation demands that we reverse the trial court's termination order on procedural due process grounds.

Simply put, it is of no issue if the eventual result is obvious, the law makes no provision to short-cut the process. Due process is a requirement as it should be, especially when the matter involves the custody of child and the right of that child to have a relationship with his or her parents.

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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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An Examination of the ORDER in Scarberry v Scarberry

The Order includes background info in paragraphs 1-6. Here is the remainder with my commentary.

7. Pertinent evidence presented at trial was the Mother and Father following the Dissolution of Marriage did have (sic) intimate relationship up and to including February 2010 but did not co-habitat (sic) together.

This is nearly three years after the dissolution. Mother and Father had a very healthy and smooth separation with both parties sharing physical and legal custody equally.

8. There was evidence that the Respondent/Mother had left the minor children at home alone, did not feed them breakfast, and did not at time (sic) buckle them in their car seats.

The children are age 4, 6 and 7. The youngest has cerebral palsy. This behaviour fits definition of neglect. Under Indiana law the court was required to report suspected abuse or neglect. The Madison County Department of Child Services has started an investigation of the mother and visited her home on Thursday 02 December 2010.

9. Further, parties disagree as to whether the Petitioner/Father participated with the Children and medical appointments.

This is essentially a non-finding as it makes no finding as to whether the father did participate with the Children and medical appointments. There was testimony by the children's medical doctor that the father attended appointments.

10. Further evidence indicated that the Petitioner/Father did not participate in the same religious training that the Respondent/Mother exercises and that the Petitioner/Father was agnostic.

I have written about this extensively in another post. This is the section that has raised the ire of numerous constitutional rights advocates and attorneys. It makes NO mention as to whether there was any effect on the children. It also specifically mentions Father's religious preference.

11. There was evidence that the Petitioner/Father did involve himself in the children's activities

Father had numerous witnesses, including Mother, present evidence that he has had significant involvement in the children's lives.

12. At the time of the Property Settlement Agreement, the Petitioner/Father considered himself a Christian and the parties were able to communicate relatively effectively.

This is another troubling finding. It specifically mentions Father and a religion by name.

13. There was evidence that the Petitioner/Father did use profanity in the presence of the children and at time (sic) failed to control his anger. In addition, he was sending a great number of text messages to the Respondent/Mother.

What is conspicuously left out is that in a mutual conversation by text that there is both sending and receipt of texts. The evidence submitted shows that the text were in the form of conversation.

It is therefore the order of the Court that the Respondent/Mother shall have sole legal and physical custody of the minor children of the parties . . .

What we do not see from these "findings" is any statement that there has been a substantial change in one or more of the eight factors that the court may consider. Here is the law on modifying a custody order.

IC 31-17-2-21
Modification of child custody order
     Sec. 21. (a) The court may not modify a child custody order unless:
        (1) the modification is in the best interests of the child; and
        (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.
    (b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
    (c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9.

Here is the law with the eight factors.

IC 31-17-2-8
Custody order
     Sec. 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. The court shall consider all relevant factors, including the following:
        (1) The age and sex of the child.
        (2) The wishes of the child's parent or parents.
        (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.
        (4) 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.
        (5) The child's adjustment to the child's:
            (A) home;
            (B) school; and
            (C) community.
        (6) The mental and physical health of all individuals involved.
        (7) Evidence of a pattern of domestic or family violence by either parent.
        (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.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.7; P.L.133-2002, SEC.32.

In looking at the court's 'findings' there is NO language that indicates there has been a substantial change in any of the eight factors. Nor is there any language that says the modification is in the best interest of the children.

For those who keep saying there must be more to the story than Father's religion this should clear it up. Of the seven paragraphs of findings two of them are dedicated to Father's religion. One is additional background information. One is a non-finding. One was confirming that Father has been involved with the children. One talked about negative aspects of the Father. One spoke to the specific findings of neglect of the children by the Mother.

It is quite difficult to objectively look at this Order and say that there has been a substantial change in one or more of the eight factors. Further, it is difficult to see that there is any finding demonstrating that it would be in the best interest of the children to be placed with a parent who has admitted to neglecting them.

A trial court may not modify custody until it determines that a substantial change has occurred and that a modification is in the child’s best interests. Mundon v. Mundon, 703 N.E.2d 1130, 1135 (Ind. Ct. App. 1999). The party seeking the modification bears the burden of demonstrating that the existing custody order is unreasonable because, as a general proposition, stability and permanence are considered best for the child. Haley v. Haley, 771 N.E.2d 743, 745 (Ind. Ct. App. 2002).

I see nothing in the court's 'findings' that demonstrate that a substantial change has occurred and that the modification is in the child’s best interests. The modification in this case was based almost entirely upon Father's religion which is an impermissible establishment of religion.

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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.

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©2008, 2010 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Judge Pancol Misstates the Law in Custody Case

As the Craig Scarberry case gains worldwide attention legal scholars, attorneys, religious freedom advocates, myself and, finally, Judge Pancol is speaking out. Unlike most of the other people who are reading the Order and applying knowledge of the law Judge Pancol is misstating the intent of the law and its application.

Pancol called me on Monday 29 November and tried to explain his position on the intent of the Indiana General Assembly and the statutory provisions that govern the determination of legal custody of a child. Pancol believes that one of the factors the court must consider is a parents religious beliefs and a child custody determination must be made inclusive of those beliefs.

He further stated that if the parents cannot agree on their religion then one parent must be designated as the sole legal custodian of the child. I disagreed and suggested to him that this was not the intent of the legislature. That parents who share legal custody have the responsibility of religious training but are not required to adhere to the same religion themselves.

So, let's see who is correct.

Here are the laws related to a determination of legal custody of a child in a divorce proceeding.

IC 31-9-2-67
"Joint legal custody"
     Sec. 67. "Joint legal custody", for purposes of IC 31-14-13, IC 31-17-2-13, IC 31-17-2-14, and IC 31-17-2-15, means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training. (emphasis added)
As added by P.L.1-1997, SEC.1. Amended by P.L.95-2009, SEC.1.

IC 31-17-2-13
Joint legal custody; finding required for award
     Sec. 13. The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child.
As added by P.L.1-1997, SEC.9.

IC 31-17-2-15
Joint legal custody; matters considered in making award
Sec. 15. In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(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;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
As added by P.L.1-1997, SEC.9. Amended by P.L.3-2008, SEC.237.

The first thing to notice is that the law defines joint legal custody to include religious training as it concerns the "child's upbringing". Although I was not part of the process in 1997 when the law was originally written I have been a part of most child custody legislation since 2008 which included the amending of the joint legal custody laws.

It has always been clear to the legislators, lobbyists and others involved in writing and amending these laws that it has been everyone's intention that the education, health or religion of the parents not be considered but whether the parents can agree on and facilitate the education, health or religion of the CHILD.

Judge Pancol reasons that because Porcaro claims to be Christian and Scarberry is agnostic that they do not agree on religion and therefore his father, Master Commissioner Pancol, was correct is dismantling the parties legal custody agreement and giving Porcaro sole legal custody.

Where both Pancol's are misapplying the law is that they see the focus of the statutes being on the parents religion rather than the religious training of the child. That is simply not so.

Barger v Pate
In the published opinion Barger v Pate (2005), the court continued joint legal custody of the parties children over the objection of each parent. The court stated "[A] trial court may not modify custody until it determines that a substantial change has occurred and that a modification is in the child’s best interests. Mundon v. Mundon, 703 N.E.2d 1130, 1135 (Ind. Ct. App. 1999). The party seeking the modification bears the burden of demonstrating that the existing custody order is unreasonable because, as a general proposition, stability and permanence are considered best for the child. Haley v. Haley, 771 N.E.2d 743, 745 (Ind. Ct. App. 2002)."

The court went further to say "Here, the evidence suggests that Father and Mother each enjoyed a good relationship with J.B. However, the relationship between the parents was particularly acrimonious and each parent attempted to place responsibility for the lack of cooperation upon the other parent." Thus, even though the parents were disagreeable the court found that joint legal custody was in the best interest of the child.

Finnerty v Clutter
The published opinion Finnerty v Clutter [2009] is more instructive for the Scarberry case. The issue before the court was "whether the trial court abused its discretion by failing to order Father to take the children to church on Sunday during his parenting time or alternatively, by failing to adjust Father’s parenting time so that Mother could take the children to church."

Mother and father shared joint legal custody of the children. She appeals from an order which modified physical custody and also provided: “Church attendance on the Father’s weekend shall be his prerogative. The Court will recommend, but will not require, the children attend church during the Father’s parenting time, if it has been their practice in the past to do so.”

The issue is whether the trial court abused its discretion by failing to order Father to take the children to church on Sunday during his parenting time or alternatively, by failing to adjust Father’s parenting time so that Mother could take the children to church. In all parenting time controversies, courts are required to give foremost consideration to the best interests of the child. Downey v. Muffley, 767 N.E.2d 1014, 1017 (Ind. Ct. App. 2002).

According to Mother, the trial court abused its discretion by failing to allow her to take the children to church on Sundays or to order Father to do so because she “has the sole right to direct religious upbringing for the children.”

Father points out that the parties’ Agreed Final Order regarding their dissolution provided that the “parties shall have joint custody of the minor children”. The Order provided that the parents would share legal custody.

Here is what the Court of Appeals said in regards to joint legal custody: “Joint legal custody” means “that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training.” Ind. Code § 31-9-2-67 (emphasis added). Because Father and Mother have joint legal custody, Father and Mother share authority and responsibility for decisions regarding the children’s religious training.

Understand that the court is saying that the parents share the responsibility not that they must agree. The trial court here made church attendance during Father’s parenting time “his prerogative,” but recommended that the children continue to attend church during his parenting time “if it has been their practice in the past to do so.” The trial court "recommended" that the father take the children to church if that had been their past practice but it was "his prerogative" to do so if he wished.

Similarly, in the Scarberry case the children had been attending church and a Christian daycare. But unlike in Finnerty v Clutter where the parties disagreed about taking the children to church, Scarberry still ensured that the children attended church and attended a Christian daycare. The issue was that he and Porcaro did not practice the same religion themselves.

The Court of Appeals continued with, "Recognizing Father and Mother’s shared authority and responsibility for decisions regarding the children’s religious training, we cannot say that the trial court abused its discretion here."

Finnerty v Clutter Conclusion
We conclude that the trial court did not abuse its discretion when it ordered that church attendance during Father’s parenting time was “his prerogative,” but recommended that the children continue to attend church during his parenting time “if it has been their practice in the past to do so.” Id. at 11. We affirm.
Affirmed. BARNES, Judge
NAJAM, J., and KIRSCH, J., concur.

One thing is very clear in this opinion that is analogous to the Scarberry case; that is that a judge is not required to award sole legal custody to a parent if the parties do not agree and that sharing the responsibilities of legal custody does not mean they must share or participate in the same religious training.

Pancol was clearly wrong when viewed in light of the opinion of this panel of the Indiana Court of Appeals.

Craig Scarberry filed his Notice of Appeal on 01 December 2010.

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©2008, 2010 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Notice of Appeal filed in Scarberry custody ruling

The Anderson Indiana man who lost physical and legal custody of his children because he changed his religion from Christian to agnostic has filed a Notice of Appeal with the Madison Superior Court III and the Indiana Court of Appeals. This is the initiation of the appeal process. The appeal has been captioned as Scarberry v Porcaro and assigned cause number 48A02-1012-DR-1278.

Scarberry, who is currently representing himself in the appeal, is being assisted by attorneys associated with the Indiana Custodial Rights Advocates. Although there are three attorneys acting in an advisory capacity Scarberry is still hoping for a lead attorney who will commit to directing the process and approving all pleadings and motions. Additionally, Scarberry hopes that interested organizations or attorneys will file a Motion to Appear as an Amicus Curiae.

Although Scarberry may change the issues to be presented to the court he has stated in a court filing that he will argue these two issues upon appeal;
1) Whether the trial court's order modifying father's joint legal custody of the parties three (3) minor children to awarding mother full legal custody of the children based upon father's change in religious preference from Christian to agnostic and his religious practices, or lack thereof, which did not in any way actually harm or pose a substantial threat of harm to the children creates an establishment of religion or impinges upon father's freedom of religion inviolate of the establishment of religion clause or free exercise of religion clause of the First Amendment to the United States Constitution made applicable to the individual states by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
2) Whether there existed evidence to support the facts and whether the facts supported the findings that there had been a substantial change in one or more of the factors provided for by IC 31-17-2-8 and that a modification of custody reducing father's parenting time was in the best interest of the children.

The Indiana Supreme Court has endorsed the “presumption for shared parenting” and to “give the child lots of contact with two loving parents” as being better for children of divorce. Yet in this case Magistrate Pancol found just the opposite, saying that because Scarberry is agnostic and Porcaro does not feed the children breakfast, left them home alone and does not use child safety restraints for them in the car that it is in their best interest that Porcaro has sole legal and physical custody.

In addition to getting free legal assistance Scarberry is also in need of money for the costs of the appeal including the $250 filing fee and $3200 transcript. If you can donate to Scarberry to help with his costs please contact me. Any funds raised in excess of his needs for this appeal will be used to help advocate for children's rights to parental access.



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©2010 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.