Wednesday, July 29, 2009

More on Jury Trial Demands - USSC, "vast potential to disrupt" courts

This story was posted as a comment to my previous post about demanding a jury trial.

My first posting about demanding a jury trial may be viewed here.

While at a meeting that evening I had a discussion about the supposed statutes criminalizing non compliance with child support payment orders. I raised the issue of if you have two of the 25 defendants scheduled for a jury trial that week actually follow through with their jury demand who do think goes, the guy behind on support payments or the one accused of raping a child? Thus, given the choice between prosecuting real crimes or trying to pad their pockets by skimming support payments, what do you think will happen. My counter-part responded that they will simply double the courts and prosecutors.

That would seem to be a logical approach. We don't want to set criminals loose upon society just because we don't have enough current capacity to manage them. But, that is precisely what happens. The Marion County Jail has been regularly releasing inmates for years because of overcrowding. Is Marion County building more jail cells or adding courts and prosecutors to speed the process? Not at a rate exceeding the caseload or population growth. There comes a point where society will only tolerate spending so much money on the scam known as the 'war on drugs'.

Marion County is likely more recognizable to you as Indianapolis. Like any large city they will have their problems. A problem encountered last year was that judges were considering issuing bench warrants for potential jurors that did not appear. Some trials were unable to proceed because of a lack of jurors. This was with only a very small percentage of cases being resolved through jury trial. Put aside the limited number of judges, courtrooms, prosecutors and public defenders. There still must be enough jurors.

Under Criminal Rule 4(C) the prosecution must take a defendant to trial within one year of the arrest or charging of the offense. There are certain exceptions to the time limit. Any delay attributed to the defendant will not count against the one year requirement. So, it is important for defendants to be prepared for trial and not ask for a continuance because it is unlikely that the prosecutor will be ready.

Do not be so quick to think it is only a logistics problem. It appears that the public has a limited tolerance for unbridled spending to support the fanciful extravagances of prosecutor's. Maybe it was Mike Nifong and his malicious prosecution against the Duke University lacrosse players in a fabricated rape case. Spending tens of thousands of dollars to manufacture a case before ever speaking to the alleged 'victim' did not go over well with many people. In fact, Nifong was sent to jail for the offense.

Back in Marion County in 2007 prosecutor Carl Brizzi made a big public showing of his top ten deadbeat dads. At the top of the list stood Eric D Walker. This loving and caring father was accused of severely neglecting his children. Brizzi had all his ducks in a row. He had court orders, child support payment history and the purported statute he would prosecute Walker under. What Brizzi didn't have was a jury who was going to allow the State to invade the sanctity of the family. The jury determined that Walker should be able to provide care for his children as he and the mother saw fit. Brizzi's waste of taxpayer money was monumental. The not guilty verdict of the jury sent a clear message to all criminal defendants that the citizens will only allow a limited amount of governmental tyranny.

Society is starting to see that prosecutors are not much unlike the people they seek to prosecute. There is a difference though in that prosecutors have taken an oath to abide by and uphold the law. As Nifong and others in Indiana have shown recently prosecutors can't be trusted any more than the defendants they go into battle against.

Police misconduct is being revealed more often with the use of audio/video recordings. In this incident a group of police officers manufacturers a case against a woman after the officer collided with her car. An Indianapolis officer plead guilty to having 'forced sex' [rape] in his police car, while on duty, with a woman wanted on a warrant. Apparently crime by officers is so prevalent that the Metro PD has only placed him on suspension while considering termination.

Police officers who have long abused their position of authority are now being seen for such conduct on a regular basis and demonstrates that no more weight should be given to an officers testimony than that of a criminal defendant.

Now I find out that the United States Supreme Court has given criminal defendants another due process consideration. In a 5-4 Melendez-Diaz v. Massachusetts decision, the high court said that lab reports served as “witnesses” for the prosecution. Justice Antonin Scalia reasoned that since the 6th Amendment gives defendants a right to "be confronted with the witnesses against him," that drug and DUI defendants among others were "entitled to be confronted with the [lab] analysts at trial." Now the prosecution must make a lab technician available to testify in person if the defendant demands it.

As a result, some cases already have been dismissed. The four dissenters readily admit to this jury demand strategy overburdening the courts. They said the ruling had "vast potential to disrupt" the criminal courts. They also said it gave "a great windfall" to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.

Clearly, criminal defendants can overwhelm the criminal courts system if they choose. If you are a criminal defendant demand a jury trial. If you are involved in any case involving an analysis report then call the reports author as a witness. If you are selected to sit on a jury demand that the case be proven and always invoke your right to veto the law if you chose.

Stuart Showalter

Indiana Custodial Rights Advocates

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

Tuesday, July 28, 2009

More than Grades – Homework also used to Determine Child Visitation

This is not a new case but one that is worth mentioning because of the significant impact it has. The Indiana Court of Appeals in the published opinion of Higginbotham v Higginbotham upheld the denial of a child's visitation rights to her father until she showed “vast improvement in her scholastics”.

Pursuant to the parties’ agreement, which was approved by the dissolution court, Kathryn was to have primary physical custody of their daughter,K.H., who was age 10 at the time and the parties were to share joint legal custody.

Robert Higginbotham out of concern for his daughter filed his Verified Petition to Modify Custody, alleging that there had been substantial changes in circumstances that were not in her best interests. The parties agreed to a custody evaluation that was performed by Dr. John C. Ehrmann, Jr., who recommended that custody remain the same with the addition of the appointment of a parenting coordinator. The parties agreed with the evaluators findings and stipulated to its admission.

The trial court found that the most recent report card of K.H. reflected below average grades in Science, Math, and Social Studies, and she did not pass the portion of ISTEP testing relating to English and Language Arts. Kathryn Higginbotham placed blame for this on Robert saying that their child returns from her Wednesday night visitations with Robert with homework that is incomplete or that needs to be redone.

The trial court issued its order on the petition by giving full physical and legal custody of K.H. to Kathryn. The court further eliminated K.H.'s midweek visitation with her father and conditioning its resumption upon her showing a “vast improvement in her scholastics.”

Finding no error, the court affirmed. Opinion by Judge Baker with Robb and Kirsch concurring.

There are a few problems I have with the dangerous precedent that this case sets. I have not found cases in which Higginbotham has been cited and I hope I never do. It clearly goes against logic to say that a child's “below average grades in Science, Math, and Social Studies, and [that] she did not pass the portion of ISTEP testing relating to English and Language Arts” are a direct result of her visitation time with her father on Wednesday evenings.

I don't think I am alone when I say that the basis for scholastic results are dependent upon much, much more than three or four hours on one week night. Many educational sites recommend such things for improving grades as:
~ Talking to teachers
~ Reviewing class placement
~ Tutoring
~ Getting parents involved with teachers
~ Using peer study groups
~ Sleeping and eating well prior to taking tests
However, I found no information that suggested cutting off contact between a parent and a child. Quite to the contrary involving the parents with the educational process was highly encouraged. An intelligent judge would have instead crafted a visitation order that may have involved some type of school participation by both parents.

This opinion had nothing to do with the best interest of a child. Punishing a child by cutting off the very limited contact that she already had with her father until she raises her grades is a travesty. This opinion is based more upon the Court's long-held opinion that men are the root of all problems in a child's life. If Baker, Robb and Kirsch had any compassion for children and concern for their best interest then they would have remanded this case to the trial court, based upon an abuse of discretion, and instructed the trial court to craft a visitation order in the child's best interest.

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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.

Sunday, July 26, 2009

Social Networking sites making their way into the Courtroom

With government satellites, GPS and surveillance cameras watching your every move the last thing you need is your personal information and habits being recorded and brought into court to be used against you. I recently posted information here about Electronic Tracking and the use of Store Loyalty Cards being introduced into evidence in child custody cases.

Well now you have one more thing to be concerned about. Fortunately, this is one that you have almost complete control over. Using social networking sites can be a convenient and fun way to keep friends and family updated about your activities. However, it can also be used against you in a child custody or child support proceeding.

The games you play, photos you post, questionnaires you answer, notes you send and your status updates can provide a treasure trove of ammunition. Those wishing to question your integrity or, more importantly, parenting skills or fitness to be the custodian of your children can use this against you in court. Therefore, it is important to limit what you put out there for the public to see. Simply making your page private will not save you. To illustrate what I am talking about I will use "Bob" as an example.

Bob is a NCP who has been hammered with child support payments and has fallen significantly behind. Bob was forced to move across the country after losing his job in the community where his children lived because his home community to longer offered the high paying position he needed to maintain those payments.

Now Bob wants to have the children come live with him and is seeking a modification of custody. Bob was recently arrested on an alcohol related offense but the charge was dismissed following his demand for a jury trial. Come back and take a look at this posting about demanding jury trials. The strategy explained there paid off for Bob.

I have been helping Bob with such things as seeking a support modification while he was unemployed and with his notice of intent to relocate. When it comes to child custody issues I only advocate for the position I believe will be in the child's best interest. So, before seeking a custody modification Bob must first work on some personal issues.

Here are two status updates that Bob posted on a social networking site.
"Thanks for all of the Birthday wishes....I would have a drink for each one of you.....But I would never see my NEXT birthday.....(Yes...I'll admit...I'm....Slowing....down.....a little....)”

I am happy to see that Bob is slowing down with the drinking and has made further progress since that time. I don't want to see this on his page though. It is an admission that he is a heavy drinker. Not long after that update came this one-
“Takes life with a grain of salt... A wedge of lime...and a shot of tequila..”

Oh Bob, am I still not getting through to you? My reply to that one did. Bob's updates now are much more about family and his children. His ex-wife hasn't been oblivious to his lifestyle though. She notes, "You have two mutually exclusive relationships going on right now, your seeming enamor with the 'Margaritaville' lifestyle or being of some use to your children, your family and the public at large.  I would think you have got to be getting tired of bar nonsense and excessive drinking that has yet again reared it's destructive head in your life for too many times to count now." She went on to mention the arrest and some other issues.

Bob is not only cleaning up his public persona but also himself. Projecting a father-of-the-year lifestyle on social networking sites is not a replacement for being a beneficial parent to your children, but it's not going to come back and haunt you at a custody hearing either.

In general you do not want to put photos or comments on your social networking sites that you wouldn't want displayed or read in court. This includes things like drinking parties, dangerous activities around children and bragging about luxurious purchases or vacations. Also, do not put comments about the other parent, the lawyers or judges on these sites while you are going through the custody battle.

The mining of social networking site information goes much deeper than what I have presented here.

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

Saturday, July 25, 2009

False Allegation of DV and Bogus Restraining Orders Harm Men, Women and Children

Domestic Violence is a crime and quite simply it is wrong. I must take issue with those who would protest that there need be no special distinction for battery committed against someone living in the home or otherwise intimately connected.

Battery is codified by IC 35-42-2-1 which essentially calls it any offensive touching. Patrons in a bar sometimes cross eyes in a wrong manner or argue over sports teams. Combine this with a little alcohol and you may have a situation where one persons pushes, punches or otherwise 'batters' another. One can tuck tail and run, push back or simply acknowledge the disagreement and let it be water under the bridge. Usually there are others who will step in to assure that it does not escalate to an unmanageable point.

Domestic battery is different. This is a position where I lose support from some of those in the Father's Rights movement but one which I am still left committed to. Domestic battery is a violation not only of the body but of the bonds of trust that hold two people together or more if they have children. Intimate partnerships are built upon trust. Your deepest secrets, your fears, your desires and all the other feelings that you hold close and personal are shared with that person. The children trust that their parents will love, honour and respect each other.

It is the violation of this trust that I feel elevates the offense level in domestic violence situations. We find similar statutory enhancements in crimes such as sexual misconduct with a minor if the perpetrator was a person in a position of trust, such as a school teacher. This is the same reasoning I use when I feel crimes by police should receive charging or sentencing enhancements; they violated a trust.

Ironic at first is that I was recently attacked by the feminazi crowd after presenting an anecdote of how restraining orders being used in child custody situations can lead to death. These women are so vengeful that they ignore assisting and instead spew their hatred towards another domestic violence victim trying to provide helpful advice just because he is a man. Whenever I am attacked by the feminazi crowd I know I have hit upon something worthy and legitimate. This is a group of man-hating women that are so consumed with anger and self-loathing that they are unable to function within the realm of the civilized familial structure. It is for this reason that true feminism rejects these antagonizers.

The point of my posting on that subject was that a piece of paper will not save a person's life and, as in my situation, it may be best and safer to not inflame the situation. Instead the feminazis say I was blaming the mother for her own death. When I was going through a divorce I was forced to wear body armour, sometimes traveled with a body guard, installed a surveillance system and altered my routines. My ex-wife had on numerous occasions threatened to use her gun to kill me or our son.

I did call the police one time when she entered the home of our son and I, while armed, and proceeded to go into a violent tirade. I did not seek a protective order for that. She is one person that you do not want to antagonize. Because of her psychiatric conditions and mood stabilizers that she takes, or sometimes refused to take, the slightest change could set her off. I found it better to take a defensive position and feel it may have saved my life.

One such feminazi is Claudine Dombrowski who just doesn't get it. By her own admission she has been denied custody of her children even after presenting evidence of severe battery upon her face and body. In a world where women who make false allegations are regularly awarded custody of their children based upon that false allegation we must wonder what else someone must have done to override the photographic evidence of battery which she shows.

I submit that it is the dangerous attitude which she expresses in her writings and that which she shares among her ultra-feminazi clique. No child should be forced to endure exposure to a person expressing such hatred not only for men but what she must have for herself.

Dombrowski does not present to us a full record of how she came to sustain her injuries. What we do know is that it did not result in her getting custody of her children and that is troubling. I don't think that anyone should have to suffer the types and degree of injuries which she did but we are not informed as to the possibility that these may have been from defensive actions by someone else or that the fight was mutual.

I propose that the real harm comes from the false allegations of domestic violence and falsified petitions for protective orders, especially those which involve partners who have children. Feelings of hurt, bruises, cuts and even broken bones can heal. What is the treatment or cure for the violation of trust or breaking of bonds that occur between millions of children and their parents? Children are not blind to family dynamics and positions of authority and control. They can discern who the manipulator is and who the victim is.

You can't just take it back when a child has been denied access to one parent for years based upon a lie. You can't simply turn back on the trust that was shut off because the child can no longer believe the parent whom he is left to live with. Children know, children feel and children will react. It is the way they react to the denial of a parent, not for their protection but based upon a lie, that results in harm.

What effect do these false allegations have on the psyche of society at large? Do we begin to view accusations of domestic violence with skepticism? Do we start to view true victims as nothing more than lying, money-hungry, vindictive manipulators? That is the danger we face and the harm that these false accusers bring to the true victims. What does the prospective juror who had a brother falsely accused do? Does he speak up about it during voir dire and get excused from service or does he remain silent while thinking 'I will show these bitches and acquit this guy'?

Judge Judy Scheindlin of the popular civil litigation television show Judge Judy confronted a young woman on the program who had accused her boyfriend of domestic violence. The video of this episode can be seen here. Judge Judy told this girl that she knew her game. That she caught her boyfriend with another girl after she had left him, wanted revenge and falsely accused him of domestic violence. The girl protested that it was “the right thing to do” and that Judge Judy was crazy. Unfortunately this is a common occurrence. Not common in that a judge sees through the charade but that the false accusation is made for revenge or other motives.

What do we as a society do to hold these false accusers accountable? I feel our first step should be to personally discourage the false reporting of domestic violence. The phrase 'You go girl' should be replaced with 'You should be ashamed girl' for women who use false allegations to deny their children access to the father. The idea that women need comfort and support from others while going through divorce or separation can be misplaced if it includes condoning the common litigation strategy of making a false domestic violence accusation.

We should also seek and support legislative change to make it a criminal offense to make a false report of domestic violence in a judicial proceeding. That should be followed-up with demands on prosecutors to prosecute the crime and vote out those who refuse to protect children from this offense.

I was a victim of domestic violence for over a year before my ex-wife finally left on her own will and then after that. I have also been falsely accused by the very one who committed the abuse. I am in the position of having to balance promoting a public policy of protecting those who are falsely accused while at the same time seeking to punish those who commit the offenses. For now, it is my opinion that we must put in safeguards to protect the innocent before we continue to seek punishment for the accused. If some victims of domestic violence must continue to suffer to protect the children of those falsely accused then that is a sacrifice we must make.

Additional information about Domestic Violence perpetrators and victims may be found here.

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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.

Thursday, July 23, 2009

Arbitration firms may be a fraud

Imagine going to a neutral third party to have a dispute resolved and then learning that the decision maker was a partner of your adversary. That is basically what the Minnesota attorney general has accused the National Arbitration Forum of doing.

This past Sunday the NAF made an agreement with the attorney general and will no longer be arbitrating between consumers and credit-card companies. The American Arbitration Association said Tuesday it will stop participating in consumer-debt-collection disputes until new guidelines are established. In addition to credit cards, some contracts involving autos, cell phones and health care require consumers to resolve disputes through binding arbitration rather than going to court.

What most consumers fail to recognize is that binding arbitration relinquishes the Seventh Amendment right to a trial by jury. The great danger is that you have a dispute now being decided by someone who is going to side with your adversary. The mega corporations will only use these arbitrators as long as they are winning and the arbitration firms know it. Essentially, when signing a contract that includes a binding arbitration clause you are saying "I won't fight, you get what you want". What the companies want is an enforceable judgment.

Dan Edelman, an attorney who filed a lawsuit last week seeking to invalidate NAF arbitration awards, said, “People don’t understand that arbitration awards can be turned into judgments and result in asset seizures.” Mark Lavery, a Des Plaines lawyer who represent borrowers, said "The National Arbitration Forum was really becoming a collections litigation strategy," The NAF denied Swanson’s accusations but said it decided to voluntarily stop administering consumer arbitration disputes because of mounting legal costs.

You have likely signed a contract which binds you to arbitration without knowing it. I do not and will not sign any contract that binds me to arbitration. If a company is going to try to screw me over then they will have to present their position to a jury it is that plain and simple. When presented with a contract ALWAYS read the fine print. If there is something you do not understand then ask the representative presenting the contract to explain it to you. If they are unable then ask for them to call their legal counsel.

There is a canon of law that provides that contracts must be made in simple, clear, understandable and easily readable terms. Thus, if you can't understand the 'fine print' you may have a voidable contract if you take the matter to a court. An arbitrator does not have the power to void a contract.

Do not let yourself be intimidated into signing any contract. Do not be pressured by expediency or people waiting in line behind you. They may actually appreciate learning that they too are about to get screwed in a contract also. Do not let a representative tell you that these are the 'standard terms' or 'what everybody signs'. Keep in mind I don't so not everybody does. Recall what your mother likely told you a time or two, "If every body else jumped off a bridge would you too?"

There is always someone else who will provide the service without the mandatory arbitration clause. As more people refuse to sign these contracts and take their service elsewhere, more companies are dropping these clauses or offering an opt-out. Protect your rights and know the law.

Wednesday, July 22, 2009

Help for teachers and care-givers to recognize and address divorce related stress in children

By the time they turn 18, approximately 50 to 60 percent of all children in the United States have been affected by divorce (Furstenberg, 1990). Virtually every teacher needs to be familiar with the effects divorce may have on children's classroom behavior. Unlike some other stressors, divorce-related problems (e.g., visitation, child support, parental custody) can be ongoing sources of stress to children, even up to 8 years after the initial separation (Grych & Fincham, 1997). As a result, teachers are likely to have students who are dealing with a variety of divorce-related issues at any one time. Effective teaching of these children requires an understanding of the impact of divorce, a supportive environment, safe channels for children to communicate feelings and problems, instruction on building coping and self-regulation skills, and resources to help parents.

Children, as well as parents, feel the stress and confusion of separation and divorce. Many kids feel angry, sad and frustrated about the prospect of their parents splitting up for good and are uncertain about what life will be like after divorce.  Your ability to communicate successfully with parents and the children will help provide the support children need. Given the right support, children will be able express their feelings, grieve their loss, and emerge from this unsettling time as stronger more resilient people.

Stress is a response to change or conflict. It is usually considered to be negative and damaging. However, not all forms or levels of stress are bad. Competing in sports and achieving in school or at work are examples of positive stressors. Stress becomes negative when the pressures surrounding these and other situations become too great or when several small stressors occur at once, and one can no longer adjust. It is becoming evident that this type of stress overload is taking its toll on children as well as adults.

Two-way communication is essential for a successful partnership between teachers and parents. This means that parents keep teachers informed about important events in their child's home life, and teachers keep parents informed about their child's school activities and behavioural changes. If parents have recently experienced stressful life transitions, such as divorce or remarriage, their attention may be focused on the events in their lives. It may take extra initiative from teachers to obtain information.

Attitudes can foster partnership or create a barrier to partnership. Viewing parent involvement as a continuum, rather than categories (uninvolved vs. involved) helps develop partnerships with parents. This means taking the perspective that all parents are involved to some degree. Some parents are involved at a high level, acting as active partners and educational leaders at home and school, whereas others are involved at lower levels, acting as a recipients of education and support from the school. For parents experiencing transitions such as divorce or remarriage, lower levels of involvement may be all that are possible.

Attitudes are often shaped by our own experiences, professional and personal, in childhood and adulthood. For example, if your parents are divorced or you have experienced a divorce, those experiences may colour your attitudes about divorced parents and their children. If you have worked with a family that had an especially hostile divorce, that experience may affect how you think about divorced parents. It is important to be aware of our attitudes about families. By knowing what our attitudes are, we can ask ourselves where those attitudes come from, and decide whether they are accurate or not. Becoming familiar with research on divorce and families can help in developing informed attitudes.

It is also important to be aware of parents' attitudes, which range from avoiding involvement with school to being overly involved. Most parents fall somewhere in the middle, they are happy to be involved on occasion if they are approached. Parents' attitudes are often influenced by their own experiences with school as a child. Those who had positive experiences at school may be more willing to be involved. Parents who understand the school system in the U.S. and come from similar cultures may be more likely to get involved than parents who are from cultures in which school personnel are viewed as authorities rather than partners. Parent involvement is also greater when parents perceive the school environment as warm, but structured, with clear limits and routines.

Communicating with both parents is essential to helping children cope with a divorce or separation of their parents. Traditionally mothers have managed most of the communication with the other adults in a child's life, such as child care providers, teachers and coaches. As our culture changes and particularly after a divorce, many assume that the communications will continue to be with the mother. However, in most cases, both parents should be actively involved in communicating with other adults in the child's life. Both parents should have equal access to health and school records unless there is legal documentation, such as a protective order, prohibiting access. State law mandates that both parents, regardless of legal custody, have equal access to their children's school records. See IC 20-33-7-2

Try to involving the nonresidential or non-custodial parents [NCP] in school activities. NCP's often feel excluded by institutions and organizations, including schools. Invite NCP's to participate in school activities, programs, and field trips. Involving the NCP's in school activities encourages and supports that parent's involvement in the child's life.

Encourage all parents to monitor their children's school progress. Children's school performance may be affected when then their parents divorce. However, if children continue to achieve in school, they are less likely to develop other problems. Parents may need information about how to help their children succeed in school. Send home a handout at the beginning and middle of the school year offering tips for improving study habits.

Try using a variety of formal and informal methods to communicate with parents going through divorce or separation.

*Parent orientation nights. Offer multiple parent orientation nights at different times and days of the week.
*Develop a system for keeping track of family changes. Collect parent information cards at the beginning of the year. Send them out again mid-year, asking parents to make changes as needed.
*Offer parent-teacher conferences at times convenient for parents. Offer opportunities for divorced parents to have separate conferences. Some divorced parents may be able to attend conferences together, but if there is hostility between parents, it is probably better for them to attend separately.
*Send notes home. Make sure that the nonresidential parent receives notes, unless there is a court order that limits the parent's access. Some teachers make up a weekly packet of information that the parent can pick up. This is more reliable than expecting the child to get the information to both parents.
*Make telephone calls. If possible, make calls to both the residential parent and nonresidential parent. Sending a note home at the start of the year to find out when parents are available for telephone calls may make it easier to reach parents. Call parents to share both positive information and concerns.

In your communications be sensitivity to family diversity that these divorced parents now have. Avoid terms that may be offensive to some families, such as "broken home," or "real parent." Don't assume that individuals in the same family have the same last name.

It may be good to get with both parents to develop a school related parenting plan. This document can details how the parents will respond to school emergencies, where to send notices, who is responsible for signing permission slips and who other significant adults in the child's life are. It will includes the residential and legal custody arrangements as well as the financial responsibilities of each parent for such things as book rental, lunch payments and special fees or field trip costs.

Sole legal custody gives one parent the decision-making rights, responsibilities, and authority related to the health, education and welfare of the child. Joint legal custody gives parents shared decision-making rights, responsibilities, and authority related to the health, education and welfare of the child. Physical custody designates where the child will reside and who provides the care and supervision.

Warning signs
Divorce can have a substantial effect on children's functioning. According to research reviews (Amato & Keith, 1991; Grych & Fincham, 1992, 1997; Kelly, 1993), children of divorce, when compared to children from dual-parent families, exhibit more "acting-out" behaviors (e.g., aggression, conflict with school authorities) as well as maladaptive, internally directed behaviors (e.g., depression, anxiety, and withdrawal). Children of divorce also are more likely to perform less well academically, have a lower academic self-concept (but not lower self-esteem), and are less motivated to achieve. These adjustment difficulties are sometimes directly divorce-related, and sometimes due more to problems in parents lives.

A child’s commitment and stress levels are often controlled by a parent or other influential adult. Children typically welcome such events as birthday parties, field trips, and organized activities, and may not recognize overload. Often a parent has a strong desire that a child participate in sports, or study dance, or take music lessons. The child’s level of enthusiasm may not match the adult’s, and the result, for the child, can be stress. Children also feel pressure from unwelcome events such as divorce, abuse, and peer pressure. These, too, promote stress in a child’s life.

Some children will express their feelings directly. Others, however, may internalize stress and show it through sadness, depression, or withdrawal. Still others exhibit feelings of stress outwardly and begin to misbehave (Ellcind,1988; Schor,1995).

Here are some signs that stress may be having a negative impact on a child:
*The child develops physical symptoms, such as headaches and stomach pains.
*The child seems restless, tired, and agitated.
*The child appears depressed and will not communicate how he or she feels.
*The child seems less interested in an activity that was once very important to him or her, such as baseball or dance class.
*The child’s grades begin to fall, and he or she has less interest than usual in attending classes and doing homework.
*The child exhibits antisocial behavior, such as lying and stealing, forgets or refuses to do chores, and seems more dependent on the parent than in the past.
*The child may express their anger, rage, and resentment with you and your spouse for destroying their sense of normalcy. Angry outbursts that continue or become violent may be signs that they need help coping with their feelings.
*The child may feel anxious when faced with big changes in their lives. This is natural for children. However, if they seem to be worrying endlessly about minor and major situations, or if their anxiety is causing eating and sleeping problems, they may need more support.
*The child's sadness about the family’s new situation is normal. But sadness coupled with a sense of hopelessness and helplessness is likely to become depression. When children feel depressed they may withdraw from their parents or loved ones, neglect their homework, dissociate from friends and discontinue pleasurable activities. Their eating habits may change or they may engage in some form of self-destructive behavior or act out.   
*Trauma in the child is determined by the child’s experience of the event, not simply the event itself. Different children in the same family may have dramatically different reactions to divorce. Trauma may cause depression and anxiety at the time of the separation or years later. It may also reoccur during weekends, holidays or times when the child misses the complete family unit.

Here is a breakdown by age range-

Ages 6 to 8 Years
Between 6 and 8 years, children need individual time with each parent to continue being reassured that they are loved. Fairness becomes an important issue; your child may want to be sure both you and your spouse get the same amount of time with him. Children this age are also interested in issues such as who is to blame or who is at fault. If your child expresses hope of reuniting your family, make sure he spends time with both of you separately to help cement the reality of the situation. Your child's feelings of unhappiness may be expressed as sadness, anger, or aggression. He may have problems with friendships or in school or stress may take the form of physical problems, such as upset stomaches or headaches.

Ages 9 to 12 Years
As children reach this age, they become more involved with activities apart from their parents. When divorced parents reside close to one another, equal time-sharing may work, but preteens may need different schedules to accommodate their changing priorities. School, community interests, and friendships begin to take precedence for children in this age range. Your child may refuse to share time with you and your spouse equally and may try to take sides. Expect this behavior and don't take it personally when it occurs. Warning signs for this age group include peer difficulties, loneliness, depression, anger, or physical symptoms like headaches or stomachaches and learning problems. Role reversals - when a child feels compelled to support or care for an emotionally distraught parent at his own emotional expense - can also arise. This is not a healthy situation for the child. Parents who recognize role reversal in their family need to find ways to get emotional support for themselves and relieve the burden from their child.

Ages 12 to 15 Years
Children in this age group need consistent support from both parents but may not accept equal time-sharing of their living arrangements. They may externalize blame for the divorce to one or both parents and may become controlling by demanding to stay in one place or to switch residences constantly. Depression, moodiness, acting out, poor performance in school, use of alcohol or other drugs, sexual activity, or chronic oppositional behavior can all signal that a teen is having trouble. Regardless of whether such troubles are related to the divorce, they are serious problems that affect a teen's well-being and indicate the need for outside help.

Ages 15 to 18 Years
Teens in this age group may become focused on establishing their independence and on social and school activities, and they may become intolerant of their parents' problems. Although your teen still needs your support, he may also tire of worrying about you. Talking frequently with your teen about his feelings may be helpful. Although teens may want to see their parents happy, they may have mixed feelings about seeing their parents dating other people. They may feel that condoning parental dating would be disloyal to the other parent. Older teens who need help may have behavior problems, exhibit depression, show poor school performance, run away from home, or get into trouble with the law.

Be part of the solution, not the problem. Well-meaning parents and adults can sometimes be the cause of children’s being over-committed at too early an age. Even what may have been a manageable level of commitments may no longer be so for a child experiencing separating parents. Sometimes adults may try to involve children in more activities to keep their mind of the divorce. This can have the opposite effect of what was intended. Some children simply need personal time to adjust to this situation.

If you suspect a child is suffering from stress, evaluate the child’s situation or activities, and work with the child and parents to identify solutions. Children are not developmentally able to handle adult-level stress. Because they cannot think or feel the same ways adults do, it is the adult’s responsibility to help keep children from becoming stressed and overloaded.

It may be up to you to use your ability to communicate with parents and the children that will help provide the support children need. By providing the correct support you may be able to help these children express their feelings, grieve their loss and successfully emerge from this transition in their life.

Contributors to this paper:
Purdue University Extension
University of Missouri Extension

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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, July 21, 2009

Why you should always demand a jury trial

The right to a trial by jury extends to both civil and criminal matters. The jury system is designed as a two part collaborative by citizens to maintain their control over the rule of law. That is, the defendant in a criminal prosecution or either party in a civil suit must demand a jury trial, and, jurors must be willing to be empaneled. Of course the court can compel people to be jurors but a willing venire better supports the principles of our Republic.

The principle of a jury trial was first established in the year 1215 in England when King John signed the Magna Carta. The right to a trial by jury was adopted by our Founding Fathers through the Fifth and Sixth Amendments to the United States Constitution.
In Indiana, the right to a trial by jury is protected by the Bill of Rights of our state constitution.
Article 1 § 13 (a) “In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury...” Article 1 § 20 (a) “In all civil cases, the right of trial by jury shall remain inviolate [undisturbed].”

Jury service represents one of the most important civic responsibilities we have as citizens. When you fulfill your obligation for jury service, you are helping to protect our liberties and to preserve our system of justice.

Would you like to have the power to veto a law just like a governor?  Would you like to have the power that your veto can't be over-ridden?  If so, then you want to be a juror.  This is what is known as jury nullification. The concept of juror nullification is the foundation of rule by the people.  Our government was established by the people and for the people.  Ultimately, we the people, have the last say.  This is why it is so important for everyone to demand jury trials.  This allows the people to exercise their ultimate right; the power to determine the law.

Judges will tell you as a juror that you have the responsibility to determine the facts of the case.  What they rarely explain is that you have the right to determine the law.  That is, you get to decide if you want the law enforced in that situation.

In Indiana it is a criminal offense to tell your child, under the age of 15, to masterbate instead of having sexual intercourse or to wait and have sexual intercourse after you get married. You have likely at one time or another said that some law is stupid and shouldn't be enforced. Your opportunity in challenging that is to demand a jury trial if charged under that offense or to vote for acquittal if serving on a jury hearing such a case.

The importance in demanding a jury trial in every criminal case is that it ensures that only those cases which truly serve the public interest will be prosecuted. Currently about 96% of cases are settled through plea agreement nationwide. The courts are still congested. The remaining 4% of cases do not all go to jury trial, some are dismissed.

My criminal charges result in dismissals because I demand jury trials. I have even gone so far as to demand that a felony charge be reinstated against me after it was dropped so that I could have a jury trial and use the court's time. That case involved an allegation that I had severely abused my child which was completely false. This charge was filed immediately after I started a father's rights group in Boone County Indiana.

The trial was schedule to take place for three days with more time allotted as needed. I had 600 pieces of documentary evidence and over 30 witnesses to present. Without ever going to trial 12 hours, or 1.5 days, was spent on pre-trial hearings. I expected the trial to take at least one week itself. That would mean that my trial alone would take nearly 1.5% of the court's time in the two years it went on. In a court that handles over 1000 cases a year that is just not practical. The prosecutor knew it and that is why the charge was dropped.

This brings me to why you should always demand a jury trial. In a plea agreement you have a 100% chance of being adjudicated guilty. The rate is much lower when jury demands are made. In fact, a study of 18 months of criminal cases filed in Boone County, Indiana during 2005-2006 revealed that less than 6% of cases where a jury trial was demanded resulted in a conviction.

Last week I obtained the trial schedule for September 1, 2009. There are 25 trials scheduled for that day of which 21 are felonies. Three are Class B felonies. Courts here rarely hold more than two criminal jury trials in one week. When they do, other matters such as divorces and other civil cases get pushed back. In reality, the court can hold about one jury trial per week. This is consistent with the common finding that courts can only handle about 1/20 of cases going to trial.

Going on odds alone if every one demands a jury trial you have a 19/20 chance of your case getting dismissed. So then why do so many people opt for a plea agreement. This is due in large part to monetary considerations. Whether you have a public defender or private counsel money is a significant consideration.

Private attorneys do not come cheap. A drawn out jury trial can cost many thousands of dollars. Had mine gone to trial the fees would likely have been about $25,000. Most defendants simply cannot afford that. That leaves using a public defender or going pro se.

In Boone County the public defenders [PD] are private attorneys who operate out of a draw pool for assigned cases. We are not a large enough community to have our own public defenders office with retained attorneys. These attorneys get paid a flat fee depending upon the type of case. Just last week Judge Rebecca McClure told one of these PD I know you have already put more time into this case than what you are getting paid for so I would like to more it along. There is a much greater financial incentive for the PD to take a plea agreement than go to trial.

If you choose to go pro se and represent yourself then only do so with some assistance. Still you have a distinct advantage that those who are represented by attorneys don't; you can flood the court and prosecutor with motions, discovery and other processes that only serve to overwhelm them with paperwork. This is commonly referred to as defense by paper-storm. This is especially effective in misdemeanor cases where there is just no value in putting more effort into prosecuting a misdemeanor case than a murder case.

The other reason that most people take a plea is because of the false assumption that they will get a lighter sentence. I have seen defendants sentenced to the statutory maximum after taking a plea that made no sentencing recommendation. That is stupid. It was the same as the maximum sentence that could have been given if convicted by a jury.

Earlier this year I was involved in advising a defendant and his public defender on a misdemeanor case. The prosecution had offered to let him plead guilty to any one of the seven charges in exchange for the rest being dropped. The agreed upon sentence would be time executed plus one year probation with six months of that on GPS monitoring. I thought that plea offer was a joke.

I was adamant that they reject that plea offer and go to a bench trial since a jury demand had not previously been tendered. I gave them a 95% probability of equal or less than sentencing as I did feel one of the charges would stick and I was familiar with the judge. Fortunately my advice was taken. The defendant was convicted on six of the seven counts and sentenced to six months detention with all the time suspended except the portion already served. He walked out of court that day a free man, no probation, no fines.

In Boone County the first trial of the year in 2006 took four days and resulted in a hung jury. Just last week a jury could not come to a unanimous vote in a child rape case. In a one day trial in 2007 where I advised the defendant and the PD a jury returned an acquittal in under an hour and some members actually apologized to the defendant for what she had to go through. In another 2007 case I advised a defendant to withdraw his guilty pleas and go to trial. He did and was ultimately convicted but was sentenced to less time than called for in the plea agreement. Earlier this year after multiple days of hearings in a murder case, that was headed to what would likely have been a 7-10 day trial, the prosecutor offered a plea agreement to time served and three years probation which was accepted by the defendant.

The courts cannot handle more than 1 out of 20 cases going to a jury trial. Judges do not always hand down sentences greater than those offered in the plea. Jurors do not always convict. Public defenders sometimes get paid more per hour if you take a plea agreement. But, most importantly, our system of representative government and the strength of our republic depends upon jury trials.

If you have the opportunity to demand a jury trial, do it. If you have the opportunity to serve a juror, do it and do it emphatically.

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