Tuesday, June 30, 2009

Failure to Appear

When representing yourself in a court proceeding it is still a good idea, more accurately a great idea, to have counsel or, at a minimum, someone to watch over and assist you. I bring this to your attention today because I have a client who failed to appear for a hearing yesterday. According to my client he was to appear in court today at “I think 9:00”.

The hearing was set upon the Petition for Contempt filed by his former wife alleging he failed to pay child support. I was coaching him on what to expect the procedures to be, how to maintain his composure and what type of evidence he can use in his defense.

Last night as I was preparing some written information for him to take to court I needed to access the Petition for Contempt to see if jail time had been requested, which, if so, would have invoked additional rights. In the group of documents he sent to me as one PDF file I found the order to appear. He was to appear yesterday, not today as he had told me no less than six times.

There are specifically two reasons to ensure that you appear for hearings, especially contempt. The first is that due process requires that you have an opportunity to be heard. The time you are ordered to appear is that opportunity. If you don't avail yourself of that opportunity then you will find it to be extremely difficult to get an adverse decision set aside. Essentially the case will be heard without you and decided without your input.

The second is that you also risk a “body attachment” or “writ of attachment” being issued against you. In criminal cases a failure to appear [FTA] will always result in the issuance of a body attachment or, more likely, a bench warrant. In civil cases there are limited situations in which a body attachment will be issued. Don't use an FTA as the opportunity to find out if one will be issued.

A body attachment is similar to an arrest warrant except that a writ of attachment can only be served while court is in session and does not authorize law enforcement to enter upon a premises to perfect the attachment. Body attachments are governed by IC 34-47-4 et seq.

IC 34-47-4-2
Writ of attachment of the body of the person
Sec. 2. (a) For the purpose of procuring personal jurisdiction over a person who has allegedly violated a court order or who is otherwise in contempt of court, the court may issue a writ of attachment of the body of the person.
(b) A writ of attachment issued under subsection (a) shall:
(1) be directed to a sheriff or assisting sheriff; and
(2) fix an amount of:
(A) bail, if the order that the person has allegedly violated does not concern a child support obligation; or
(B) escrow, if the order that the person has allegedly violated concerns a child support obligation.

Interestingly my client reported to me this morning that a writ of attachment had not been issued against him. This may be explained a Marion County [Indianapolis] policy that was put in place in January 2009. That is when Marion County suspended the issuance of bench warrants for FTA's in child support cases. Marion County Court Administrator Glenn Lawrence said the warrants were suspended to allow no-shows the chance to explain why. He also said the county recently settled a case in which a defendant was denied due process.

"They might put them in jail and not bring them immediately before the court," Lawrence said. "So we felt it best to go ahead and do a blanket expungement [sic] of those outstanding - whatever they were - bench warrants." Now, the courts can only order what's called a "body attachment". "It's not really an arrest. It's a notice to bring them before the court," Lawrence said. But for now, failure to appear doesn't mean going to jail.

The Marion County Prosecutor's Office handles 72,000 open child support payment cases in any given month.

Whenever I receive a notice from a court about a court date I go straight to the computer and put that information into my calendar. Not everyone can manage to do this though and even those who manage to don't always check their calendar. Although I am in the business of doing this I don't provide this information in hopes that you will hire me to be your personal assistant and caretaker while your case progresses.

Find a responsible person who can assist you in keeping your court dates. This will serve to at least keep decisions from being made without your input. If you are not proficient at representing yourself in court then get counsel. You can still save significant amounts of money and do a good job at presenting your case if you are properly coached. This is what I am in the business of doing and would much rather do than keep your calendar for you.

Stuart Showalter, LLC – Litigation Coaching Services

Friday, June 26, 2009

Senator Evan Bayh and Responsible Fatherhood

Senator Evan Bayh spent all last Friday at the White House with President Obama to draw attention to the importance of responsible fatherhood. He was the only member of the Senate invited to the home of the President for a series of special events focused on the vital role that engaged fathers play in molding their children into responsible, caring adults.

The Responsible Fatherhood Act, introduced by Bayh and cosponsored by then-Senator Barack Obama in the last Congress, is an extension of Bayh's work to reduce fatherlessness as Governor of Indiana. Bayh reintroduced the bill last week for Father's Day. Also to commemorate Father's Day, Senator Bayh wrote an op-ed piece, titled My Father's Day Wish, in the Richmond Palladium-Item. Please read that before continuing.

There Bayh noted that “There is an irrefutable body of evidence demonstrating that father absence is a major contributor to such troubling societal trends as increased teen pregnancy, teen violence, educational under-performance, and drug and alcohol abuse. Children who grow up without a dad are five times more likely to live in poverty and commit crime. They are more likely to drop out of school, more likely to commit suicide and more likely to become teenage parents.”

One provisions of this bill is to "Fund financial literacy programs and budgeting education, employment services, and mediation and conflict resolution for low-income parents." This is really gender neutral but if it is implemented appropriately it could help fathers gain more involvement with their children. The rest of the bill does contain some help for fathers although not in the way most would like: to be able to spend more time and provide more care to their children.

Many of the provisions of this bill focus on child support payments. I am a strong advocate of parental responsibility which, in some situations, may require a parent to accept the role of financial provider. However, a system that only creates sugar-daddies for single moms is doing nothing to ensure that children receive the support they are entitled to.

Although the child support payment scheme establishes support payments that far exceed actual cost [mine were set at 70% of what we spent as a family of three on everything, not just “support”] I am most disturbed by the way in which the State mandates support be provided. The State wants support provided only as money. Clearly the State must be a motivated by something other than the best interest of the children.

There should be provisions to encourage parents to provide support. A father who buys food and diapers and takes them to the mother provides support directly to the child and demonstrates the role of a father. A father can take the child to the doctor and make the payment. A father can take his child to sign-up for soccer and pay the registration fee.

These acts not only get fathers more involved with raising their children but also relieve the mother of having to run all those errands. Receipts could be acquired and sent to the Child Support Bureau along with any cash balance due. Some argue that this would create an unsurmountable logistic burden upon the State. However, personal involvement has been shown to greatly increase child support payment compliance. Actually seeing the payments being used to support the child would further increase compliance. This would relieve much of the support enforcement staff [lawyers] who could be replaced by payment processors [clerks] at a substantial cost savings to taxpayers.

More should be done to ensure that children receive this support and that fathers have the opportunity and responsibility to provide that. The Responsible Fatherhood bill appears to provide some of that. Still, this bill will help bureaucrats and others far more than it helps dads, and in some ways it will hurt fathers.

Currently I am working on legislation with a handful of Indiana legislators, both Republican and Democrat, that will ensure that parents are responsible to their children while at the same time giving them more opportunities to be parents. I have also requested a meeting with Senator Evan Bayh.

Unfortunately, most of the purported pro-father legislation that we see is not child-friendly by expanding the government role in children's lives when the primary focus should be on expanding parental roles, especially father's, in their children's lives.

As Governor, Bayh's administration held one of the first national conferences on responsible fatherhood, removed marriage penalties in government programming and used media and grants to promote responsible fatherhood. While governor, Senator Bayh also more than doubled the amount of money collected for child support payments.

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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.

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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.

Thursday, June 25, 2009

Is Microsoft damaging your computer?

I have long had a policy of not receiving documents prepared in Microsoft Word based upon the very sound reasons of size and compatibility issues. I also do not generate documents using MS programs because of the vast amount of computing resources that MS products use. As an example MS Works uses 97+% of the processor. From MS own support site comes this: “When you run Microsoft Works 2000 Word Processor, you may notice that CPU usage is at or near 100 percent. Microsoft has confirmed that this is a problem in the Microsoft products that are listed at the beginning of this article.”

In the past few months, after loading MS software on my computer, I was struck with multiple attacks on other software that left them corrupted. I also had two hard-drives destroyed and it was confirmed by MS that their software issues were, at least, partially at fault. In the past I had a motherboard in a Compaq computer destroyed which was confirmed by Compaq to likely be a MS software related problem. In all instances it was confirmed that there were no viruses on my computers.

If you haven't been struck by malicious MS software yet it is likely only a matter of time. Microsoft is constantly working on ways to cause more damage to primary users of non MS software. That is people who do things like use Linux OS or the Firefox browser.

Just yesterday I withdrew from South University because of their policy that all assignments be submitted using the MS proprietary extension .docx. For a place that is supposed to be an institution of higher learning it is rather suspicious that South University has a requirement that students use an expensive software package of only mediocre quality and not near the level of publishing software being used in the real world. I think South University has a generous contract with MS to require that students purchase their software.

For document creation, using MS Word is such a novice and burdensome application that I just don't know people that use it. PagePlus or Open Office [MS Word clone] are all better for simple text applications. The Open Office suite is a clone of MS Word but produces much smaller file sizes, is the same application for instructional purposes and is FREE.

For actual page layouts that appear professionally done KaliNews, InDesign or Quark XPress are so much better.

For portability formats using rtf [another MS format] or pdf extensions is the better way to go. PDF is universal format created by Adobe Systems and does not require payment to view through Adobe Acrobat reader. Additionally, an important feature is that it does not display the original document differently for various users. This can be very important in making legal forms that must be identical. You can use Microsofts' .doc extension and get five different views on five different computers.

Another hazard for users of MS Word is the potential for disclosing confidential information. MS Word saves all prior versions in the file. If you redact the confidential portions of a document and then post it for public viewing it is no difficult task for a viewer to retrieve the prior saved version.

There is an excellent page titled Please Don't Send Me Microsoft Word Documents that details the reasons why you should NEVER accept an e-mail with a MS Word attachment. It includes topics such as: Microsoft Word files are a security hazard; Sending Microsoft Word files can violate your privacy; and, Microsoft Word documents are extremely large compared to other file formats. It is definitely worth reading and could save you from having your computer hardware destroyed and valuable data lost.


Wednesday, June 24, 2009

Woman who used protective order to keep father away from children for two years stabbed to death

From AP newswire

BROWNSBURG, Ind. — An Indiana man arrested Monday night was accused of stabbing his estranged wife to death while his two daughters, 12 and 8, hid in a closet. Authorities said the older girl called 911 and told a dispatcher, “Daddy killed Mommy.”
Joseph L. Warnock, 41, was arrested about 9 p.m. in the same neighborhood of Brownsburg where he had once lived with his wife, Angela Warnock, 38, said Lt. Roger Call of the Hendricks County Sheriff’s Department.
The wife was found stabbed in her bed at home on Sunday night. Investigators say the couple was going through a divorce and she had a protective order requiring him to stay away from her and their daughters. The killing came two days after the wife obtained a two-year extension on the order.

Angela Warnock's use of the Indiana Civil Protection Order Act for leverage in the divorce proceedings with the father of their two daughters failed her this past weekend. On Friday she had obtained an order that would keep the father from having any further contact with his daughters for two years. In addition she had the daughters, age 8 and 12, sleeping with her. These are both signs of Parental Alienation.

Parental Alienation is damaging to the child. Instead of promoting independence, the alienating parent encourages continued dependence by the children. The parent may insist on sleeping with the child, feeding the child ("It’s easier if I do it"), and taking care of these rites of passage longer than normal child development calls for. One theory about why a mother will act this way is that when a father takes his share of joint custody is that it is like asking her to give away part of her body. One mother said, "He is going to remove my right arm and take it for the weekend." It feels like the mother has lost a profound part of who she is as a person. She feels fractured, pulled apart.

Instead of encouraging the necessary interaction with both parents some battling spouses instead choose to use the children as a weapon against the other. Keeping children away from their fathers can have significant damaging effects. Children from fatherless homes account for 63% of youth suicides, [Source: US Dept. of Health & Human Services, Bureau of the Census]; 71% of pregnant teenagers. [Source: US Dept. of Health & Human Services]; and 71% of all high school dropouts [Source: National Principals Association Report on the State of High  Schools].

Often times children are withheld from the other parent as punishment for a perceived wrong. This is commonly done through restraining orders which in the majority of cases do not even involve an allegation of violence. [False DV Allegations Cost $20 Billion] Douglas Darnell, Ph.D. Cites that a parent who physically or psychologically rescues the children when there is no threat to their safety reinforces alienation by placing in the child's mind the illusion of threat or danger. An alienator may assume that if a parent had been physically abusive with him or her, it follows that the parent will assault the child. This assumption is not always true.

This is another case that demonstrates that a Protective Order does not protect and may actually lead to the death of a parent who was otherwise not threatened. In child custody cases every effort should be made to ensure that the children maintain healthy relationships with both parents. Not doing so can not only damage the children but, as in this case, cost the alienator her life.

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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.

Tuesday, June 23, 2009

Court rules innocent inmates are not entitled to exculpatory DNA evidence

In a stunning decision that goes against fundamental due process rights and the perception of liberty in the United States the United States Supreme Court has ruled that inmates do not have a due process right to access DNA test results that prove their innocence.

The case before the court concerned Alaskan William G. Osborne, who was convicted in 1994 of kidnapping and sexually assaulting a prostitute in Anchorage. Osborne had sought to do DNA testing, at his own expense, on evidence used to convict him. Although prosecutor's acknowledged that the test could confirm who actually committed the crime the State of Alaska fought vigorously to keep Osborne from having access to DNA testing of the evidence.

The Court reasoned that once someone has been convicted and sentenced to prison that DNA testing could show that the inmate was wrongly convicted and the Court should not establish a constitutional right to not be wrongly imprisoned. Chief Justice Roberts acknowledged the “unparalleled ability” of DNA testing “both to exonerate the wrongly convicted and to identify the guilty.” However, Roberts felt that allowing the innocent to go free would be an unwelcome burden to the state.

In a dissent, Justice John Paul Stevens said the Constitution’s due process clause required allowing Mr. Osborne to have access to DNA evidence in his case. “For reasons the state has been unable or unwilling to articulate,” Justice Stevens wrote, “it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.”

This ruling follows along the lines of many state court ruling in family law cases. Many states including Indiana have ruled that the danger or harm to a child in a particular custody situation is not a valid consideration for a change in that custody if the child has become accustomed to the danger or harm that is occurring.

Ultimately it is the message that would be sent to the people that compel prosecutors and judges to keep innocent people in prison or children in danger. Correcting a wrong denotes just that. That there was a wrong. If every innocent defendant was turned loose or brought back to life or if every child who was placed into harm by a judge were put back into the custody of a caring and loving parent there would be a tidal wave of relocating people. By allowing the people to see the injustices perpetrated upon them by corrupt prosecutors and judges people would see just how corrupt the court system is. This is why judges and prosecutors oppose correcting wrongs.

Unlike the majority on the court, Justices Alito, Kennedy and Thomas joined Stevens in declaring that the potential innocence of an inmate should be a challenge that the state should have to meet and the mere inconvenience to the state does not justify keeping innocent people in prison.


Thursday, June 11, 2009

Shared Parenting Meetings with Indiana Legislators

The Indiana General Assembly met in special session on Thursday June 11, 2009 for the purpose of working on the state budget. The day started with legislators drifting into the building where most proceeded to caucus meetings. Between these sessions I was able to get some time with the legislators to discuss the upcoming session and the need for Shared Parenting legislation.

The House was scheduled to assemble at 1:00pm to consider the budget and did come to order around 1:45. About an hour later the House had adjourned following what appeared to be bitter arguments over fast tracking of the CIB bill which Bosma referred to as a gaming bill but the Democratic leader said had no gaming references in it.

Meeting with Senator Taylor - An additional meeting has been set for Thursday 18 June 2008 to draft an amendment to Indiana's paternity law which was amended by HB1511 from the 116th session. I would like to see factor four removed which states, "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". The factors from marriage were adopted for custody decisions in paternity actions but this factor should not apply because of the unique circumstances in some paternity actions. Often times a father was not aware of having fathered a child until such time as he or the mother files a paternity action. Unlike in divorce proceedings the father may have never had the opportunity to be involved with the child prior to the paternity action and to use that as a factor in opposing the father having custody is a bias against the child establishing contact with his or her father and does not serve the best interest of the child.

Meeting with Senator Kruse - Senator Kruse introduced SB560 in the 116th session which would have required judges in divorce or paternity proceedings to presume that a child has the right to equal access to both parents and that specific findings must be made to justify a deviation from that standard. This bill will be introduced again in the upcoming session.

Meeting with Representative Pond - Representative Pond is a longtime advocate of Shared parenting and will again be introducing a Shared Parenting bill. Pond has pushed for passage of her legislation for the past few sessions but her bill has not made it out of committee. We are hoping to find some bipartisan support for the bill this session.

Meeting with Representative Thompson - Representative Thompson has been a long time advocate of Shared Parenting and has again expressed his support. I will be discussing further with Representative Thompson past bills he has authored or sponsored that did not get a vote.

I had brief discussions with various legislators to keep the issue of Shared Parenting on their agenda. The opportunity for meeting times was very limited between caucus hearings and the assembly on the House floor. Many discussions took place through the hallways or even on the street en route to other meetings.

The most interesting meeting of the day took place after the Statehouse session ended when I went to visit a prominent attorney in the hospital. About 15 minutes after I arrived one of the legislators that I was unable to speak with during the day arrived and we were able to have a brief discussion there.

This was a very productive day in which additional contacts were made and more commitments to children's right to access to both parents was made by our Indiana legislators. 2010 will see the introduction of more Shared Parenting bills and under the coordinated efforts of all involved the children of Indiana should see legislation passed to ensure their right to access both parents is upheld.

Indiana Custodial Rights Advocates