Saturday, January 31, 2009

Indiana SB 560 - Presumptive Joint Physical Custody

New Bill Seeks to Allow Children to Maintain a Relationship with Both Parents.
by Stuart Showalter

On 20 January 2009 Senator Dennis Kruse introduced SB560, Presumptive Joint Custody Following Divorce. The digest, which is a synopsis, of the bill is as follows:

Joint physical and legal custody. Establishes a rebuttable presumption that joint legal custody and joint physical custody are in the best interests of a child in a dissolution of marriage. Requires the court to provide written findings if the court finds the presumption has been rebutted and joint custody is not in the best interests of the child. Provides that a court may reduce or cease parental contact between a parent and the parent's children only if the court makes written findings of fact based on clear and convincing evidence of substance abuse, spousal abuse, or child abuse or neglect. Provides that if a parent knowingly falsely accuses the other parent of child abuse or neglect or spousal abuse, the parent who was falsely accused may challenge the parental fitness of the accusing parent. Provides that during the pendency of a custody case, if both parents were residing in the home before filing for dissolution of marriage, each parent shall maintain an equal time share allocation between the parents and the children. Permits a court to cease or reduce contact between a parent and child during a pending dissolution case if the court makes written findings that substance abuse, spousal abuse, or child abuse or neglect occurred. Provides procedures if a parent is relocating. Changes the time a parent must file an objection to a relocation of a child notice. Provides that if a parent knowingly and intentionally prevents the other parent from the other parent's parenting time with a child, a court shall hold the parent in contempt of court. Provides that each parent is financially liable for their own attorney's fees concerning child custody matters. Provides that divorced parents with a child shall alternate years when the parent may claim the federal dependent tax deduction. Provides that certain recorded evidence is admissible in court in family law proceedings. Requires meetings, hearings, and conferences in a family law action to be recorded. Requires the division of state court administration to compile statistics concerning the failure to pay child support.

Senator Kruse represents portions of three counties in the Fort Wayne area. He has served in the Senate since 2004 after serving in the House since 1989. We have not yet had a meeting but are hoping to get together at the Statehouse sometime soon. If we are unable to do that I will make the trip to Fort Wayne.

I ask that all supporters of children contact Senator Bray and ask that SB560 be set for a hearing. I will be testifying on numerous child related bills this year and am very excited to present testimony on this bill.

When I asked Senator Kruse what his basic principle in seeking this legislation was he told me, "When a divorce case is filed in Indiana, equal status should be afforded the husband and wife.  Evidence should be presented by both parties.  The [court] can decide from the evidence how child custody should be handled." To learn more about Senator Kruse visit his website.

I agree with nearly everything that has been included in this bill. Much of it is based purely on fundamental due process and actually preserving what is in the best interest of the children. The bill very logically lays out a plan for child custody orders based upon real world factors that need to be considered. It is obvious that Senator Kruse cares deeply for children and wants to see them have th necessary access to the parents that were raising them.

It is for those reasons that I think the bill will be soundly rejected in the General Assembly. It has been my longtime experience that logic and legislation do not exist on the same plane. Hopefully, we will find a majority of legislators who feel the well-being of children is worth going against the status quo. I have detailed for you some of the major provisions of this bill.

Presumptive Joint Custody

This bill would provide that in a custody proceeding the court, in determining the best interests of the child, must consider that there is a rebuttable presumption that joint legal custody and joint physical custody are in the best interests of the child. Currently under Indiana Code 31-17-2-8 there are eight factors to be considered in determining custody. This bill would add four new factors that are based more on providing for the best interest of the child.

1) The capacity and disposition of the parents to provide the child love, affection, guidance, and protection has not been a statutory requirement although it is truly the most important of the factors to be considered.
2) The capacity and disposition of the parents to provide the academic and religious education of the child.
3) The capacity and disposition of the parents to provide food, clothing, and medical care.
4) The willingness and ability of each of the parents to demonstrate facilitation and encouragement of a close and continuing relationship between the child and the other parent.

An important provision of this bill is the requirement that the burden of overcoming the presumption of joint custody rests on the parent challenging the presumption. One thing I have fought for and included in my 2007 proposal was that the presumption may be overcome only by clear and convincing evidence of the unfitness of the parent to be denied custody.

In requiring more accountability of judges, this bill also would require that if the court finds that the presumption of joint custody has been rebutted, the court shall include written findings in its order concerning the factors relevant in rebutting the presumption and the reasons that joint legal or physical custody is not in the best interests of the child.

The fallacy that is often raised of joint custody leads to more court battles is addressed in this bills mediation provision. After a child custody order is entered, the parents will share decision making authority and responsibility regarding important decisions affecting the child's welfare. If parents are not able to agree to important decisions affecting the child's welfare, this bill would mandate that the parents submit the issue to a mediator selected by the court. The parents would be bound by the mediator's decision.


This bill would reduce the time from 60 to 30 days that a parent must file an objection to a proposed relocation. The parent objecting would also have to file a proposed custody order, a proposed parenting time order, and a proposed child support order. There would be a presumption that relocating is not in the best interest of the child. In determining whether a relocating parent has overcome the presumption against relocation with a child, the court shall give equal consideration to the following seven factors.
1) Whether the child will lose substantial contact, joy, and rearing with the nonrelocating parent.
2) Whether the relocation with the child would improve the general quality of life for the child.
3) The relocating parent's motives for seeking the relocation.
4) Whether the costs of transportation are financially affordable by both parents.
5) Whether the relocation with the child will cause hardship or undue burden on the nonrelocating parent.
6) Access to extended family support.
7) The impact on the child, including whether the relocation is harmful to the health or well-being of the child.

Parenting Time Contempt

One thing that has long been ignored by judges is custodial parents denying their child the opportunity to have visitation time with the other parent. This bill would require that judges now find the offending parent in contempt if that parent knowingly and intentionally prevents the other parent from exercising parenting time with a child as set forth in a parenting time order. The court would be required to hold the violating parent in contempt of court and order the violating parent to give compensatory time to the other parent equivalent to the lost time.
The court would also be required to take at least one action from a list of penalties which include, assessing a five hundred dollar ($500) fine, confining the offending parent in jail or changing custody or the parenting time order.

Law Enforcement

One additional provision which is based on one of the biggest complaints I hear requires law enforcement officers to make a report of the incident. No longer will the typical excuse of "That's a civil issue, we can't get involved" be acceptable. A law enforcement officer who responds to a call involving parenting time contempt shall file a report with the law enforcement agency that the officer is employed with stating the date and time of the response and a description of the incident.

Data Collection

For the first time in Indiana data would be collected on child support payment contempt charges. Statistics concerning the number of individuals who are incarcerated or are confined in jail for contempt of court for failing to pay child support, including the length of sentence and the amount of time individuals spent in jail, must be compiled under this bill.

Additional information and the complete text of the bill may be found here.

Thursday, January 29, 2009

Minnesota Shared Parenting Report - Part II

The Status Quo in Minnesota; statute, data, perceived pros and cons

The Status Quo in Minnesota; statute, data, perceived pros and cons

As with nearly all other states, in Minnesota divorce and parentage proceedings, child custody is decided based on the “best interests of the child” standard. Minnesota uses thirteen factors set forth in statute to make an individualized determination for each child. One of these is "the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any". Minn. Stat. § 518.17(1)(a)(10)

Parents also have the option of creating a parenting plan which must include a schedule, address decision making responsibilities, and identify a method of resolving disputes. These are reviewed by the court to assure that they are in the best interests of the child or children.

Minnesota applies the same standards to the term “joint legal custody” as nearly all other states. These are the major decisions determining the child's upbringing, including education, health care, and religious training. Minnesota defines the term “joint physical custody” as how “the routine daily care and control and the residence of the child is structured between the parties.”

A benefit to advocates of Shared Parenting is that Minnesota already has a rebuttable presumption that a parent is “entitled to receive at least 25 percent of the parenting time for the child.” A 50/50 presumption would be more fitting with maintaining the continuity of most households where the parents are married and living together. In addition to the parenting time presumption, there are two statutory rebuttable presumptions related to child custody. First, there is a rebuttable presumption that upon request of either or both parties, “joint legal custody is in the best interests of the child.” This is an advantage over many other states, like Indiana, who put the burden upon the moving party to show that it is in the child's best interest. Second there is a rebuttable presumption that joint legal or joint physical custody in not in the best interests of a child if there has been domestic abuse. The caution here is that although it is rebuttable, domestic violence definitions require no actual violence but merely the stated fear that it may occur.

Like Indiana, Minnesota has no statutory preference or presumption for or against awards of joint physical custody. However, historically Minnesota courts preferred not to award joint physical custody based on concerns about lack of routine and stability for children and parental inability to cooperate and resolve disputes. “Regularity in the daily routine of providing the child with food, sleep, and general care, as well as stability in the human factors affecting the child's emotional life and development, is essential, and it is difficult to attain this regularity and stability where a young child is shunted back and forth between two homes.” Kaehler v. Kaehler, 18 N.W.2d 312, 314 (1945)

While the courts have not expressly overruled the case law preference, some more recent cases do not recognize it. For example, in 2005 the Minnesota Court of Appeals stated that “[t]here is neither a statutory presumption disfavoring joint physical custody, nor is there a preference against joint physical custody if the district court finds that it is in the best interest of the child and the four joint custody factors support such a determination.” Schallinger v. Schallinger, 699 N. W.2d 15 (Minn. Ct. App. 2005).

Nevertheless, because old case law disfavoring joint physical custody may continue to impact trial courts’ decisions, some Study Group members expressed concern about the potentially unsettled state of the case law.

Lack of Data on Minnesota Child Custody presents problems for the study group -

Lack of data collection concerning Minnesota child custody outcomes posed a major roadblock for the Study Group in completing its work. The Study Group had particular data which it wanted to consider but there is no collection process for this data. It therefore, may be necessary to seek a mandate for data collection prior to seeking presumptive joint custody in your jurisdiction. Seven data sets that the group wanted to see where;
(1) the frequency of sole and joint physical custody settlements and awards;
(2) whether the frequency of sole and joint physical custody awards has changed over time;
(3) the rate at which mothers and fathers obtain sole and joint physical custody;
(4) whether sole or joint physical outcomes are associated with geographic location, representation by attorneys, settlement or judicial decision, marital status, socioeconomic status, and/or family ethnicity and cultural background;
(5) which issues are most likely to be settled or contested;
(6) characteristics of parents involved in contested proceedings; and
(7) the frequency of modification and enforcement proceedings associated with sole and joint physical custody outcomes.

The only relevant Minnesota research found by Study Group members compared custodial
outcomes in 1986 and 1999, in the context of a study on child support. The authors reported that in 1986, six percent of the cases sampled involved the outcome of joint physical custody but that by 1999, the number of joint physical custody outcomes increased to twenty-three percent. Both data sets were provided by Kathryn D. Rettig & Kerry Kriener-Althen, Consequences of Minnesota Child Support Guidelines for Children of Divorced Parents, FALL 2003 CURA REPORTER 10, (2003). That study was useful in that it documented the trend of increasing use of joint physical custody between 1986 and 1999, but it did not address child custody outcomes between 1999 and the present.

Perceived Strengths and Weaknesses of the Current System -

he study group used anecdotal evidence from public submissions as well as their own experiences and opinions to come up with the two list below. The first list what study group members thought to be strengths while the other list perceived weaknesses.

Perceived Strengths of the Current System -
• The “best interests” standard is child-focused and promotes individualized consideration of each child’s situation and needs.
• A range of child custody options is available to families. Parents can create parenting plans tailored to meet specific family needs.
• Parents can choose to have joint physical custody.
• Programs such as parenting education and various alternative dispute resolution methods can assist parents in reaching an amicable settlement.
• Many cases involving child custody and parenting time are settled by the parties without significant judicial intervention.
• Recent legislative changes with respect to child support and relocation have reduced parental incentives to seek particular child custody labels.

Perceived Problems with the Current System -
• “Best interests” determinations require information that is not consistently available due to insufficient court system resources (including risk assessment and factual development).
• Because the “best interests” standard requires individualized application, outcomes can be difficult to predict and are viewed by some parents as involving too much judicial discretion.
• Some parents entering the court system encounter financial, cultural, and linguistic barriers that limit participation.
• Increasing numbers of parents are not represented by counsel.
• Some parents believe that courts may be biased against fathers when making child custody determinations.
• Some parents believe that nonresidential fathers may be discouraged from actively parenting children.
• Some parents believe that courts may be biased against mothers, particularly those who raise concerns about battering and safety issues.
• Some parents believe that use of the best interests standard is an unconstitutional violation of a parent’s right to control the care and upbringing of children.

The Study Group members did not reach consensus about theses two list. The purpose of the discussion was to exchange views about the functioning of the current system preliminary to exploring potential ramifications of a joint physical custody presumption.

The "best interest of the child" standard had consistently provided difficulty in both the legislative arena as well as in the courtrooms. This is a term that is not clearly defined and appears in both the positive and negatives for presumptive joint physical custody. I believe a more appropriate standard is the best interest of the family. If the interest of all family members are not held in high regard then there is no way that the parents can do what is best for the children. Far too many judges lack the cognitive or intellectual skills required to make the connection between the best interest of the parents being in the "best interest of the child".

Be sure to check back for the next installment,
Minnesota Shared Parenting Report - Part III
Joint Physical Child Custody Presumptions

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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.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Wednesday, January 28, 2009

Criminal Non Support Amendment - Missouri

Introduced Bill to Modify Missouri's Criminal Non-Support Statute

Most of us know that the child support payment system is a charade for spousal support or more accurately, installment payments for a nine month rental of a womb. Throughout the United States there is not one state who has a child support payment system that accurately reflects the cost of raising a child. At the root of the child support payment system is government intervention into the familial decisions as to how to provide support [food, clothing, shelter and medical care] for children.

It is because of this reason that it is often difficult for a parent to comply with a child support payment order. The system does not recognize families who are fiscally responsible or those who do not buy all products at full retail prices. Many of us shop at garage sales, through on-line auctions or in the clearance isle to get necessities for our children. The court's have mandated that all products and services are to be new and at full retail price and both parents will work outside of the home.

This drastically alters the lifestyle that many families had prior to divorce and can be a very challenging adjustment that is an unlawful intrusion into family privacy. The courts, however, simply ignore this in favor of receiving financial incentives for issuing excessive child support payment awards.

Senator Moore has taken an approach to criminal enforcement of child support payments that recognizes why most men fall behind in support payments.

This act does not mandate but will allow any circuit court to establish a division, within the family courts, for disposition of criminal nonsupport cases. This bill seeks to treat this offense more akin to a civil contempt proceeding, which is to provide coercion to bring about compliance, rather than simply a punitive disposition.

The bill recognizes and seeks to accommodate some of the problems that lead defendants to have child support payment arrears. Defendants may be referred to education, vocational or employment training, substance abuse treatment, or work programs. After successful completion of a court-ordered treatment or training program or commencement of support payments, the defendant may have the charges, petition, or penalty against him or her dismissed, reduced, or modified.

This is a step in the right direction but still ignores the underlying problem which is the government's invasion into how parent's provide support to their children. If I want to continue living off the land, providing food by hunting, fishing and gardening; providing shelter by building a log cabin; by providing clothing by sewing them myself, and; by providing health care through natural means that have been proven successful over thousands of years, then I should be able to.

Separately, this act provides that criminal nonsupport shall be a Class A misdemeanor unless the total arrears are in excess of an aggregate of twelve monthly payments, in which case, it is a Class D felony. Currently, the crime is a Class D felony if the person owes more than $5,000 or has failed to pay six months of payments within the last twelve-month period.

This section provides a bit of balancing to people in like circumstances. A man who pays $50 per week could go nearly two years before triggering the same offense level that a man paying $400 per week would achieve in just three months.

The act also modifies the penalties for any person convicted of criminal nonsupport in a way that is much more coercive than Indiana's. Under current Indiana law, men who are convicted for nonsupport of a dependent are presumed to receive a one and a half year sentence of incarceration. This is the same for each offense unless the value attached to the unprovided support exceeds $15,000.

Under this bill Missouri's sentencing structure would be as follows: (1) A first offense shall result in a suspended imposition of sentence and an appropriate period of probation; (2) A second offense shall result in a suspended execution of sentence and an appropriate period of probation; and (3) A third or subsequent offense shall be punished within the range for the class of offense that the defendant was convicted of as provided by law.

If the defendant is placed on probation or parole, he or she must begin payment of current support as well as satisfying the arrears. If he or she fails to pay then probation or parole shall be revoked and an appropriate sentence shall be imposed.

When considering child support payment arrears in Indiana it is important to keep in mind that Indiana has no criminal penalty. Indiana has a companion neglect charge called non support of a dependent that makes it a crime to not provide food, clothing, shelter or medical care to a dependent even when it does not result in harm to the child. It does not apply to education as the general neglect charge that also requires the element of the support having been necessary.

A hearing was conducted before the Senate Judiciary and Civil and Criminal Jurisprudence Committee on 26 January 2009.

Tuesday, January 27, 2009

Minnesota Shared Parenting Report - Part I

Mandate from the Minnesota State Legislature and Introduction

I recently downloaded a copy of the Minnesota Joint Physical Child Custody Presumption Study Group Report which was issued on January 14, 2009. This document is 284 pages in length so I am going to try to compress this for you into 10 parts that will be presented over about a three week period. I encourage you to ask questions about the material presented so I can provide answers as part of subsequent postings.

You may contact me directly by email to

Minnesota State Legislature Charge to State Court Administrator
In 2008, the Minnesota Legislature directed the state court administrator to convene a Study Group to consider the potential impact of adoption of a joint physical child custody presumption. Members of the Study Group were appointed in August, 2008, and the Study Group met on September 22, October 27, November 24, and December 15, 2008.

Here is the statute mandating the creation of the study group.
Minn. Laws 2008, Chapter 299, Sec. 25. JOINT PHYSICAL CUSTODY; STUDY GROUP.
(a) The state court administrator shall convene a study group of 12 members to consider the impact that a presumption of joint physical custody would have in Minnesota. The evaluation must consider the positive and negative impact on parents and children of adopting a presumption of joint physical custody, the fiscal impact of adopting this presumption, and the experiences of other states that have adopted a presumption of joint physical custody. The study must consider data and information from academic and research professionals.
(b) In appointing members to the study group, the state court administrator must ensure that the viewpoint of parent advocacy groups, academics, policy analysts, judges, court administrators, attorneys, domestic violence advocates, citizen members who are not associated with a parent advocacy group, and other interested parties are represented. At least one member of the study group must be a representative of the Department of Human Services. The state court administrator must consult with the chairs and ranking minority members of the budget and policy committees in the house and senate with jurisdiction over family law on the composition of the working group. The state court administrator shall report to the legislature on the evaluation of presumption of joint physical custody, the experiences of other states, and recommendations made by the study group no later than January 15, 2009.

The study group was comprised of 12 members from various backgrounds. While the mandate by the legislature is that both the positive and negative viewpoints must be presented the group consisted primarily of representatives who are already in opposition to Shared Parenting. The report individually addresses many aspects of Shared Parenting and did include public input. I have separated my review of this report into 10 parts which I have listed below.

Minnesota Shared Parenting Report - Part II
The Status Quo in Minnesota; statute, data, perceived pros and cons

Minnesota Shared Parenting Report - Part III
Joint Physical Child Custody Presumptions

Minnesota Shared Parenting Report - Part IV
Other Jurisdictions and Potential Positive and Negative Impacts

Minnesota Shared Parenting Report - Part V
Study Group Discussion of the Impact of a Presumption of Joint Physical Custody

Minnesota Shared Parenting Report - Part VI
Fiscal Impact of Adopting a Joint Physical Child Custody Presumption

Minnesota Shared Parenting Report - Part VII

Minnesota Shared Parenting Report - Part VIII
Survey of States

Minnesota Shared Parenting Report - Part IX
Assessing Social Science Research

Minnesota Shared Parenting Report - Part X
Public Participation

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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.

View Stuart Showalter's profile on LinkedIn

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Saturday, January 24, 2009

Tough Immigration Legislation Introduced - Indiana

I just received this from the Indiana House Republicans and thought it was worth passing on.

Reps. Dermody and Eberhart Announce Tough Immigration Legislation
(STATEHOUSE) Jan. 23. 2009 – State Reps. Tom Dermody (R-LaPorte) and Sean Eberhart (R-Shelbyville) have announced the filing of House Bill 1488, a bill that requires state agencies to verify the lawful presence in the United States of certain individuals who apply for public benefits. In addition, employers would be required to use the E-Verify system to confirm the legal status of its employees.
Under the bill, unauthorized residents who attempt to apply for public benefits would be charged with a Class D felony. Additionally, the bill broadens the authority of law enforcement officials when dealing with employers of unauthorized residents.
“I believe, given these especially though times, that public benefits must only be given to Hoosiers,” said. Rep. Dermody. “We simply cannot afford to be freely giving taxpayer benefits away to people who are not legal residents of this country. This legislation would go a long way in guaranteeing that.”
“This is still a big problem,” said Rep. Eberhart. “We haven’t heard enough about it this session. This is still a major issue, and Hoosiers are calling for action. People want to know what is being done about it, and it needs to be addressed.”
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Hoosiers have been clamoring for a few years now to get tough on illegal aliens who receive public benefits. This isn't something that affects my usually area of advocacy but there is a causative effect. As illegal aliens eat into the social services budgets of local, state and federal agencies those agencies are looking to recover whatever costs they can.

That leads to the usual target being forced to foot the bill for everyone else. Again it is fathers. Not all fathers but those who can be documented and have a job. If an illegal goes to the hospital and gives birth neither the mother or father is required to pay. However, if a mother, who is a US citizens and on Medicaid, gives birth in a hospital she is not required to pay for any of the costs. Then the federal government assesses the entire cost to the father if he also is a US citizen.

Here is the synopsis, known as the digest, of the introduced bill;

Unauthorized aliens. Requires the superintendent of the state police department to: (1) negotiate terms of a memorandum of understanding (memorandum) concerning a pilot project for the enforcement of federal immigration and customs laws; and (2) designate appropriate police employees to be trained under the memorandum. Prohibits a state agency or political subdivision from providing federal, state, or local public benefits to a person who is not a: (1) United States citizen; or (2) qualified alien under the federal Immigration and Nationality Act and lawfully present in the United States. Requires a state agency or a political subdivision to verify the lawful presence in the United States of certain individuals who apply for public benefits. Requires a state agency or political subdivision to: (1) verify the lawful presence of the person; (2) verify the lawful presence of certain individuals through the Systematic Alien Verification of Entitlements (SAVE) program; and (3) report errors and significant delays in the SAVE program. Provides that a person who makes a false, fictitious, or fraudulent statement in an affidavit verifying lawful presence commits a Class D felony. Requires employers to: (1) comply with requirements regarding verification of employment under federal law; and (2) make verification forms available for inspection by the commissioner of labor. Requires the commissioner of labor to file a complaint with the United States Office of the Attorney General if an employer fails to retain or to make available for inspection a verification of each employee.

This is not going to be the cure to our nations economic ills nor the manifest injustice that is placed upon fathers. It still relies upon government bureaucrats for implementation, detection and enforcement. I do believe it is worthy of passage as a step in the right direction. Please contact your Representative to express your support. Click on the link below for assistance in finding your state representative.

Thursday, January 22, 2009

SB 232 - Enforcement provision may be added to public access law

by Stuart Showalter

Senate Bill 232, authored by Senator Gard, came on for a hearing on Wednesday 21 January 2009 before the Committee on Local Government of the Indiana General Assembly.

Here is the digest of the introduced bill.

Public access issues. Requires a public agency to give notice of the agency's meetings to any person who makes an annual request for notice. Allows a court to assess a civil penalty of up to $1,000 against each of the following for violating the public records law or the open door law: (1) The officer of a public agency. (2) Employee of a public agency. (3) The public agency. Requires (rather than allows) a court to review public records in camera to determine whether redaction of the records violates the public records act. If a formal complaint is filed, requires the public access counselor to review public records in camera to determine whether redaction of the records violated the access to public records act. Creates an education fund for a program administered by the public access counselor to train public officials and educate the public on the rights of the public and the responsibilities of public agencies under the public access laws. Makes a continuous appropriation.

Steven Key of the Hoosier Press Association is the major proponent of this legislation. Key mentioned that although most agencies comply with the public records law there are those few bad actors who will simply refuse to abide by the law. Key believes that these provisions will have little impact on public agencies. Currently media outlets may make a request to be notified of agency meetings by submitting a request for the year-long notices by December of the preceding year. Citizens would now also be allowed to use the same notice system which is delivered by email.

During my testimony I relayed to the committee two experiences I have had by the bad actors for which Steven Key spoke. In the Summer of 2007 I was reading the on-line forum of a local newspaper. There, multiple people were making accusations that two police officers had been stalking them. Rumors and speculation were rampant. I thought it would be best to just request copies of complaints against the officers from their departments. So I did that using the APRA.

Two days later the Police Chief for Lebanon met with me and discussed my request. Since no one made a formal written complaint there were no records to supply to me. However, he did discuss that two people had come by the police station but once he explained about why police watch people leaving bars or follow them as they drive away from the bar then the people decided not to file a formal complaint. He also sent a formal response to me in writing citing that no records existed but also providing additional information not required by the Act. To me that was an ideal way to respond to a public records request.

This was not unlike the responses I generally get from state agencies like IDEM or the State Court Administration. However, this was not the type of response I got from Thorntown for my request of stalking complaints against the other police officer. Instead the Town Attorney asked a Superior Court judge to order me to submit my public records requests to the court using the Indiana Trial Rules instead of to the Town. The judge, Rebecca McClure, then ordered me to do so.

Since that order was illegal I simply ignored it and continued to send any request directly to the town. As the town continued to ignore my request or demand payment to compile the records for my inspection I filed complaints with the Public Access Counselor. The PAC tried to resolve the matter without success and ruled that the town was violating the Act.

Later in 2007 a friend of mine went on trial in relation to a sensational 2005 arson fire in Lebanon. Although media was allowed to attend, this same judge ordered me out of the courtroom. So, I filed a public records request for copies of the audio recording. After an initial denial the PAC intervened and then the judge said I could listen to the tapes under specific conditions enumerated in her response. One was that I could not bring my own equipment to make a copy even though the APRA clearly states that a requester may make a copy on his own equipment.

I then filed suit against the court and the town to compel production of the records. The town attorney responded by filing a Motion to Dismiss. At the hearing on his motion the attorney stated that his basis was if the law was the way he wanted it to be then I wouldn't be able to sue the town. The judge, in denying his motion, said he would apply the law as written. This suit is set for hearing next month on my Motion for Summary Judgment.

In opposition to the bill were numerous lobbyist for government agency associations. Their complaints ranged from things like it may take having to create a new position just to add the email addresses of everyone requesting notice to people no longer willing to run for public office or work as a government employee for fear of being fined up to $1000 for intentionally denying someone access to public records.

The provision for providing notice of regular meetings gives the agency the option by which members of the public will be notified. Senator Young asked if this would allow an agency who didn't want to provide notice to then declare that notice will be provided by fax machine since few people have those. Senator Gard suggested that the Legislative Services Agency look at ways to address some of the issues raised during the hearing and that a vote be taken later.

Indiana does have a good public access law but it lacks enforcement power. Adding a penalty provision where employees or officials who intentionally prevent the public from having access may be the incentive that they need to follow the law.

Tuesday, January 20, 2009

Fairfield Murder Trail - Bond Hearing - 20-01-09

Stuart Showalter
Lebanon, IN -
The hearing on Elizabeth Fairfield's request for bond pending the upcoming murder trial in which she is accused of killing her daughter, Brittany, began today in Boone Superior Court II. In what is amounting to a mini-trial, some of the 31 named witnesses began giving testimony. Fairfield is accused of causing her daughter's death by forcing her to ingest about 80 pain relieving pills.

Brittany's brother Willy was questioned extensively by Todd Meyer, the prosecutor, about what he was doing the evening of Brittany's death, what she was doing, how he discovered there was a problem, what his feelings were about his sister dying, what his parents feelings were, what they were doing and if and when they cried. Meyer's primary focus was on if anyone had tried to perform CPR and whether the parents cried about it.

Much of Willy's testimony included long pauses and responses of no recollection. Willy was asked if his mother had attempted CPR on Brittany. Meyer also asked if he or his father had. He further pushed the issue of did anyone try to do anything to save her or if they just called for the ambulance. As Willy fought back tears Meyer pounded away at him about any attempts made to save Brittany.

Meyer then asked about if and when Elizabeth or Paul Fairfield, Brittany's parents, had cried that night. When Willy stated that his parents were crying that night Meyer sprang to his feet and thrust a transcript of Willy's November, 19, 2007 questioning at Willy and asked Willy to read a couple lines. Willy managed to get the words out reciting Meyer's question if Willy saw his parents crying and his response of no. Meyer then confronted Willy about the discrepancy in his testimony. As Willy sobbed it was Deputy Prosecutor Bruce Petit who asked Meyer to lessen his attack on the distraught sibling. Meyer then told Willy he could use a tissue if needed.

Upon cross examination by an attorney for Mrs Fairfield, Thomas Harlow, Willy was again asked to read from the transcript which was calmly handed to him. This time it was from before and after the portion Meyer had him read. In this it was learned that Willy had on November 19, 2007 made statements that his parents were observing what was going on, that they were standing in the room and not crying, that later they were sitting and holding each other while crying.

Next, the defense called Lebanon police officer Jason Leap, the second of the emergency personnel to arrive, if he had attempted CPR. He responded no. He also stated that the first person to arrive, Officer TJ Nelson, likely did not attempt CPR either. Officer Leap testified that all Lebanon police officers are trained in performing CPR. The paramedic who arrived about a minute later testified that he did not attempt CPR and thought that it would have been a futile effort for anyone to try.

Dr Michael Evans a toxicologist and proprietor of AIT Labs in Indianapolis which does about 1500 toxicology examinations for coroners and medical examiners performing autopsies across the country testified. Although, at the time test were performed, late June 2007, there was more blood than necessary to perform the test that the additional blood was not preserved since the county did not request that. Dr Evans described the procedures by which toxicology examinations are performed. He stated that the machines do not state what is in the blood but provides data that must be interpreted.

Although the body generally begins to absorb Tramadol, the opiate that it is alleged cause the death of Brittany, immediately Dr Evans readily agreed that it could have been taken 5-6 hours earlier.

Afternoon questioning continued with dispatcher Robert Hatfield from the Boone County 9-1-1 center and Dr. Thomas Heniff from Lafayette Medical who treated Brittany at Witham Hospital the night of her death.

Mr Hatfield's testimony was very brief and concluded with he was aware of no evidence that Elizabeth Fairfield murdered her daughter Brittany.

While waiting for the scheduled arrival of the next witness the Court conducted a hearing on Mrs Fairfield's request for the county to pay for the cost of expert witnesses, transcripts and other pre-trial preparation costs. Through testimony by Elizabeth and Paul Fairfield the court learned that the Fairfield's have no significant assets of than their daughter's vehicle, which was purchased for $350 a year ago and a 1996 GMC van that Paul uses to drive to work.

The Fairfield's have been forced to move from a house into a trailer because of their loss of income. Paul testified that since the death of his daughter life became more stressful and he started missing work and is now near being terminated for losing so much work because the recent arrest of his wife has been extremely stressful on him.

The three attorneys currently defending Mrs Fairfield are providing their services pro bono, which is at no cost to the county. Todd Meyer suggested that the Fairfield's sell their van to raise money for Elizabeth's defense cost reasoning that the Fairfield's oldest daughter and Paul could share her car for work related travel.

At the conclusion of the indigence hearing Dr Heniff arrived. He spent significantly more time on the stand and testified as to the symptoms that Brittany had when brought to the hospital at 10:13 on the night of June 13, 2007. Dr Heniff testified that he concluded that Brittany had croup, a cough caused by a virus, and that her symptoms were not the result of Tramadol toxicity. When asked about the symptoms she had that were not consistent with Tramadol toxicity Dr Heniff mentioned elevated heart rate and a frothy discharge from the nose. He concluded his testimony stating that he saw no evidence that Elizabeth Fairfield had murdered her daughter which wrapped up a day in which every prosecution witness said the same.

Testimony is expected to continue through the day on Tuesday. Judge Rebecca McClure will then decide if bail will be granted to Elizabeth Fairfield who has been held in the Boone County Jail without bond since early December.

Monday, January 19, 2009

Indiana SB 0272 – Custody Interference could become a felony

Indiana Senate Bill 0272, authored by Senator Head, had its first reading on 07 January 2009. Senator Merritt was added as the second author and Senator Arnold was added as coauthor, both, on 12 January 2009. This bill would enhance the penalties for custody interference lasting greater than 180 days to a Class D felony. As with any law though it is only as good as the enforcement. We all know that rarely does a court impose a penalty when a father shows up to get the children for visitation and gets told, “Sorry, you can't have them I have plans this weekend.”

In reading the language of the current statute it is somewhat one-sided to begin with. The first section has to do with a parent concealing by removing the child from the child's state of residence. This would be the state of the custodial parent. This is already a felony. So, a Non-Custodial Parent living out of state keeping the child at his house would be subject to a greater penalty than the CP doing the same thing.

State Representative Cleo Duncan introduced an amendment to IC 35-42-3-4, written by Ripley County Deputy Prosecutor Lynn Fledderman, which was adopted into law. This added a provision to prosecute parents who didn't return a child from visitation. Parents not allowing visitation should be subject to the same penalty.

I have known of many fathers who have been denied visitation with their children, some going on years. This is currently a crime as a Class C misdemeanor. I doubt that raising this to a Class D felony will result in any additional enforcement. I find it more likely though that a parent who has had custody taken away and doesn't return the children will find himself the subject of a prosecution which could become a felony if this bill is adopted.

In California it is a felony to interfere with custody for any period of time. If you have the children for the weekend and can't return them on-time for some reason, be it a car wreck, lost track of time or decided to stay an extra day in Disneyworld, you had better notify the other parent and just to be safe the local police also. Likewise, if the other parent is going to pick-up the children for visitation you better be there. Even if you just earned that the other parent's brother, who has been staying at the home, got arrested for cooking meth you had better call the police before not returning the children.

California's law may seem a bit extreme but only so in the context of a world where no one takes responsibility any longer. There is no great difficulty in finding a telephone and notifying someone. There may be the rare circumstance where you broke your leg hiking through a forest preserve and there is not cell towers within 20 miles. Barring that though it is as simple as making a phone call to the parent, police or an attorney.

Although this amendment could be used to pursue greater punishment against parents who do not allow visitation to take place it is very unlikely as most would just allow one visitation just shy of 180 days. Indiana does not need one more tid-bit of legislation that won't be enforced except against only a NCP who abducts the children. We need real legislation with teeth. We need to start with the presumption that both parents are entitled to custody.

Friday, January 16, 2009

Selecting an Attorney who will Advocate for you

Today I want to speak on the subject of selecting an attorney.

One of the most widely used methods of selecting an attorney is the phone book. It shows too. All you need do is look who is on the cover, the spine and has the largest ads. The Internet is becoming a more common venue for selecting an attorney however. The Google ad boxes are filled with their names and their website usually return near the top on any search you are likely making.

Accessing their websites allows you to usually find out much more about your prospective attorney than a simple phone call in which you will likely only speak to a secretary or paralegal anyway. There are also numerous other resources on the web that can help you learn about attorneys. The first site you will visit is the Indiana Supreme Court's Disciplinary Commission to see if any complaints have been filed against the attorney and any disciplinary actions by the Commission.

Other web resources include discussion forums and newspaper reports. Do a search for the name of the attorney including the state. Then narrow your search for specific topics you are interested in. Add “best I ever used”, “ripped me off”, “lost my case”, “got custody of my child” and so forth. This should allow you to find what others who have used this attorney are saying.

The attorney you select to work for you is going to be your attorney. This is going to be the person who represents you. Your attorney is an extension of you. When you chose a new car you want something that fits you, that represents who you are and you take a few for a test drive before buying one. This is the same way you should approach hiring an attorney. You are passionate about your case and your attorney should be also.

The type of case you have will also dictate what attorney you will use. The most advertised are personal injury attorneys and those who represent drunk drivers. Family law is also a common area of practice as is criminal defense. I believe that there are times when a general practice attorney may be appropriate just as with a doctor. However, there are other times that you would want a specialist. If you get audited by the IRS you will want a tax attorney. If you are involved in a large land acquisition and a development corporation then you will want a corporate attorney with knowledge of real estate.

Most of you reading this are involved in some type of family law case. You may be facing a criminal charge of non support of a dependent, just received a complaint for divorce, are fighting a custody battle or are seeking a modification of court ordered child support payments after losing your job. To many attorneys these cases are just the bread and butter of their industry. They have no personal stake in the results. There is nothing that compares to your interest here, especially in a custody case. You must find an attorney that can empathize with you and is passionate about what you believe in and are going through.

I have helped many people with their attorneys either in the selections process or during the progression of their case. On thing that I find myself doing more than anything else is making sure that the clients' attorney is being an advocate for him or her. More so than working on making sure that all argument and strategy has been vetted is making sure that the attorney is eagerly seeking to ensure that every option has been considered and that new concepts are never overlooked.

On the Boone County Child Advocates website we have now added a judges and attorneys page with member submitted content about their experiences with these people. We invite you to submit a brief synopsis of your experiences with judges and attorneys. Please click on the BCCA banner below to go to this page.

No one will be more passionate about your case than you. For this reason you may want to represent yourself. I will speak about that next week. But for now, unless you have significant experience and knowledge of the law then you will want to use an attorney. Your attorney must be an extension of you not just someone to hold your hand. If you select an attorney and he or she doesn't fit then you need to move on. There is far more riding on this than just going with what stands out in the phonebook.

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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, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Wednesday, January 14, 2009

College Expenses and Child Support Payments: Indiana

One thing that I often get asked about is Child Support Payment Orders and college education. Our Indiana Supreme Court has determined that dissolution of marriage provides parents with the resources to fully fund a child's college education. I was under the impression that split families incurred greater expenses and actually had less money available to pay for their children's college education but what do I know. I don't get paid obscene amounts of money to sit in the Statehouse and handout opinions instead of participating in the real world where you have to work for what you have.

Today I am examining the case of PATRICIA SUE BECK v MARK ALLEN BECK Cause No. 76A03-0807-CV-341. This is an appeal from the Steuben Superior Court where the Honorable William C. Fee, Judge, presided at the trial court level under Cause No. 76D01-0511-DR-377. This is an unpublished opinion issued on 29 December 2008. Judge Fee is a member of the Supreme Court Child Support Committee and should know child support law better than your typical family court judge.

Appellant-Petitioner, Patricia Sue Beck (Patricia), appeals the trial court’s judgment ordering Appellee-Respondent, Mark Allen Beck (Mark), to pay only $2,471.32 of their daughter, K.B.’s, college expenses. We affirm.

Patricia presents one issue for our review, which we restate as: Whether the trial court erred in applying the college expenses provision of the parties’ property settlement agreement.

It is important to first note that under Indiana Code § 31-16-6-6(a)(1), a court may order payment for post-secondary educational costs continuing past the time the child reaches age twenty-one. Martin v. Martin, 495 N.E.2d 523 (Ind. 1986). So for everyone who asks about support ending at age 21 there is an answer for you. In additional to the educational cost, health care cost may also be assessed against parents although case law conflicts on this. In Schueneman v. Schueneman, 591 N.E.2d 603 (Ind. Ct. App. 1992), the court held that it was within a trial court’s discretion to include payments for health insurance in a post-secondary educational order, even if such payments continue beyond the child’s twenty-first birthday. However, later in Sebastian v. Sebastian, 798 N.E.2d 224 (Ind. Ct. App. 2003), the court found that “[a]ny medical and dental expenses are part of support and terminate at age twenty-one.”

In January 2006 the parties had agreed to a property settlement in their dissolution action wherein K.B. would pay 1/3 of her college expenses. Of the remainder Mark would pay 59% and Patricia would pay 41%. K.B. Had already completed a significant amount of credits when the settlement was tendered.

The relevant portion of the agreement reads, “The parties agree that their minor daughter, [K.B.], is currently enrolled in college.” That “college expenses” includes “tuition, room and board, books, lab fees, supplies, and student activity fees associated with her college education.”

K.B. incurred $6,283.00 in college expenses for the spring semester of 2006. After the trial court entered its dissolution decree, K.B. did not incur any further expenses. She signed up for classes for the fall of 2006, but she eventually withdrew and was not charged. From 2003 to 2006, K.B. incurred approximately $72,000.00 in student loan debt.

Later in the year Patricia filed a Motion for Contempt against Mark alleging he had failed to pay his portion of K.B. College expenses. The trial court found that K.B. had “prepaid” $6,283.00 in expenses “at the time of (or just days prior to) the execution of the Property Settlement Agreement and entry of the Final Decree” and had not incurred any additional expenses since that time, the trial court ordered Mark to pay $2,471.32 which is 59% of two-thirds of $6,283. Furthermore, because Patricia “has signed a student loan used by [K.B] pay the college billing and is paying the monthly payment on that loan,” the trial court ordered Mark to pay the money directly to Patricia. Patricia filed a motion to correct error, which the trial court denied.

In her appeal Patricia contends that the trial court erred in not applying the settlement agreement retroactively for the purpose of getting Mark to pay her 59% of 2/3's of $72,000. However, since the agreement applied to K.B.'s current college expenses it would require the court to rewrite the agreement which it may not do. This is addressed in Shorter v. Shorter, 851 N.E.2d 378, 382-83 (Ind. Ct. App. 2006).

The Court of Appeals found that it would be illogical to apply the agreement to the previously incurred college expenses. This is the portion that I found most interesting and wanted to pass along to you. Construing the college expenses provision to require Patricia and Mark to pay K.B.’s previously-incurred expenses would make no sense: those expenses have already been paid through K.B.’s scholarships and student loans. To the extent that Patricia argues that the parties were agreeing to pay a portion of K.B.’s existing student loans in addition to a portion of her future college expenses the court found two problems. First, student loans are not “college expenses.” Student loans are used to pay college expenses. The college expenses provision says nothing about the payment of student loans. Second, and more importantly, if Patricia and Mark had considered K.B.’s existing student loans to be their own personal debt, the dollar amount was easily ascertainable and could have been listed in the “Debts” section of Exhibit A to the property settlement agreement, just like the parties’ other debts. It was not.

So, in writing agreements that include college educational expenses litigators and attorneys must be aware of the language used and make particular stipulation as to exactly what is included.

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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.

View Stuart Showalter's profile on LinkedIn

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.