Stuart Showalter is a child custody policy advisor to Indiana state policy makers as well as attorneys on child custody cases. For parents he offers child custody based life coaching to help them maintain control of their lives, increase their fitness as parents and manage their litigation so they can truly serve the best interest of their children. He provides this Law Blog as free opinion on various issues. Reader submissions of topics are welcomed. Send to Stuart@StuartShowalter.com
The Center for Science in the Public Interest [CSPI] calls food dyes the secret shame of Food Industry and Regulators, and urges Food and Drug Administration [FDA] to ban artificial food dyes linking them to hyperactivity and behavior problems in children.
Yellow 5, Red 40, and six other widely used artificial colorings have been linked to hyperactivity and behavior problems in children and should be prohibited from use in foods, according to the nonprofit CSPI. The group has formally petitioned the FDA to ban the dyes, several of which are already being phased out in the United Kingdom. The other six dyes are Blue 1, Blue 2, Green 3, Orange B, Red 3, and Yellow 6.
In the 1970s Dr. Ben Feingold, a San Francisco allergist, reported that his patients improved when their diets were changed to eliminate food containing these artificial colourings.[1] Since that time additional studies throughout the world have also concluded that artificial colourings are contributors to childhood behavioural problems.
Sugar was long suspected to be the culprit of childhood hyperactivity which is still one of those falsities that are spread around like sitting to close to the TV will cause you to go cross-eyed. Sugar is more of a benign component that accompanies the true culprit, synthetic colourings, in many foods marketed to children such as cereals like Fruity Pebbles, Lucky Charms, Trix and Froot Loops.
Also suspected is the preservative sodium benzoate. The CSPI has reported that sodium benzoate has been linked to cell damage and to an increased risk for cancer.[2] Sodium benzoate is found in Coca-Cola, Pepsi Max, Diet Pepsi, and was in many fruit drinks until manufacturers pulled it under threat of lawsuit. Other food additives are dangerous and are contained in nearly all prepared foods, especially those targeted towards children.
The dangerous additives are used to simulate the color of fruits or vegetables in foods like Kraft's Guacamole Dip, which gets its greenish color from Yellow 5, Yellow 6, and Blue 1 not avocados, and Aunt Jemima Blueberry Waffles, which are blue thanks to Red 40 and Blue 2, not real blueberries. These are not there because of an actual need although the FDA states they are to maintain or improve safety, nutritional value, freshness, taste, texture and appearance.[3] Yet, more than a dozen American varieties of Kraft's Oscar Meyer Lunchables kids' meals contain artificial food dyes, but not so the British versions. So much for safety.
Americans' exposure to artificial food dyes has risen sharply. According to the FDA, the amount of food dye certified for use was 12 milligrams per capita per day in 1955. In 2007, 59 mg per capita per day, or nearly five times as much, was certified for use. You may think that the FDA is there to protect consumers but such is not the case. Lobbyist for the medical industry have pushed through devices the jeopardize consumers just as the food and drug manufacturers have.[4]
The harm to children or adults caused by these dangerous food additives is not coincidental nor is it based upon any actual need. The fact is that the decision to harm children is a very profitable one for the food and drug industry. Through outright ownership of through strategic joint ventures the food and drug giants are financially bound to each other.[5,6]
I have always called 'harming children for dollars' the most profitable business scheme in the world. In this instance many people are profiting. This includes the marketing firms that design the visuals for the food packages who use psychology research firms who form the studies of children and their reactions to colours. Then there is the food processing giants who add chemicals to the food for an artificially created treatable condition such as ADHD that can be treated through drugs supplied by their partnership corporations. One of the drugs to treat ADHD is Methamphetamine. All of this is being done to get the drugs into your child and the money out of your wallet.
Involving your child in such a profit scheme is clearly abuse. The Indiana Code relating to the factors to be considered in a child custody decision include the health of the child and the relationship between the child and the parent. In a custody battle the food you feed to your child could then become an issue of abuse. I have previously written about obtaining a record of food purchases in Store Loyalty Cards and Child Custody which can be used to show if you are feeding harmful foods to your child. Add to that using discovery to gain your financial records that show you own shares in a mutual fund with holdings such as Unilever, or any of the other food and drug companies operating in these alliances, and there is a case to show that you abuse your child for profit.
The best way to protect your child and ensure that you are acting in your child's best interest is to avoid foods with artificial colourings and preservatives. Many of these are high in cost and low in nutritional value anyway.
[1] Feingold, BF. The American Journal of Nursing, 1975 May;75(5):797-803. [2] Chemical Cuisine: A Guide to Food Additives, CSPI, May 2008. [3] Food Ingredients and Colors, International Food Information Council (IFIC) and U.S. Food and Drug Administration, November 2004. [4] Political Lobbying Drove FDA Process, The Wall Street Journal, March 6, 2009. [5] British pharma company strikes deal with Unilever on weight-loss product, AFP, London, 2004-12-15. [6] Vectura and UV announce spin-out of PharmaKodex, Unileverventures.com/News--May---PharmaKodex-content-36/ May 2006.
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.
The Indianapolis Star on Sunday 23 August 2009 featured an editorial letter that I had written.
The Star allows for readers to make comments below articles and it didn't take long for the male-bashers to post theirs. While most are easily dismissed for lack of a valid or logic based argument. Others are simply not relevant to the topic and don't belong in the discussion. Yet, one stood out and brought about the ire of some others.
Here is the comments made by seniorteacher
"I am all or Dad's involvement in children's lives, but for God's sake let's stop this process of shared custody where the children are shuffled from family to family every two days or so. These children have no place to call home, and don't give me the crap about them having two homes. They don't want two homes; they want one. I'm a teacher and I see the result of this selfish practice, and I am also the result of it. It's a terrible childhood, and believe it or not parents it isn't about what you want. It is about what the child needs. So all you greedy dads back off. Children need one home, be it one parent or two. They can visit you on the weekend and summer vacations, and you can be there when they need you. But please do not demand shared custody. You'll save your child a world of insecurity, confusion, and hurt." 8/23/2009 10:42:20 PM
This teacher starts out with "I am all [f]or Dad's involvement in children's lives." but then regresses to "So all you greedy dads back off. Children need one home, be it one parent or two. They can visit you on the weekend and summer vacations, and you can be there when they need you." Seniorteacher has been a teacher for 23 years mostly at public high schools. It is deplorable that we have a teacher of maturing boys who has the attitude that fathers should be occasional visitors in their children's lives. She has clearly expressed that she does not feel that children need their fathers more than 4 days a month. This is damaging to children and is unacceptable.
I had a teacher in sixth grade who had gone through a difficult divorce and child custody battle. We boys were made to feel second class and degraded so much that some of us eventually picketed the classroom demanding equality. I am unable to recall any specific instances of what my teacher said but I do know we boys paraphrased it to each other as 'she says girls are better than boys'. I doubt that 'seniorteacher' refrains from expressing this attitude either overtly or inconspicuously while in the classroom. Trying to break down masculinity and demeaning an entire gender and teaching them that they are not important is not acceptable.
Feminist Karla Mantilla summarized the philosophy behind this male bashing in an article entitled "Kids Need 'Fathers' Like Fish Need Bicycles." She wrote, "I submit that men tend to emphasize values such as discipline, power, control, stoicism and independence. Sure, there can be some good from these things, but they are mostly damaging to kids (and other living things). They certainly made my son suffer an isolated and tortured existence until he began to see that there was a way out of the trap of masculinity."[1]
"As boys pass from childhood to manhood, they develop their moral and ethical code."[2] It is at this time it is most important that a teacher not be instilling into them that they are not as valued as women and don't need to be a significant part of their future or current children's lives.
Roger Scruton, author of "Modern Manhood," explains what is going on with feminist ideology in classrooms, "Feminists have sniffed out male pride wherever it has grown and ruthlessly uprooted it. Under their pressure, modern culture has downgraded or rejected such masculine virtues as courage, tenacity and military prowess in favor of more gentle, more 'socially inclusive' habits."[3]
I recommend that you read "The Lost Boys" by Cathy Young . She makes some very valid points about the hypocrisy of the radical feminist and the double standards applied to young boys including in the educational setting.
I call upon every school system in the State of Indiana to either create a formal policy advocating the importance of both parents or require that their teachers receive instruction on gender stereotypes and avoiding degrading an entire gender of parents such as 'seniorteacher' has done. This would not be tolerated if it was a statement about race; gender should be no different.
[1] Karla Mantilla, "Kids Need 'Fathers' Like Fish Need Bicycles," Off Our Backs, June 1998, pp. 12-13. [2] Boys to Men: Entertainment Media Messages About Masculinity - 1999 [3] Roger Scruton, "Modern Manhood," New York City Journal, 19 January 2000.
The case of Dugan v Mittal Steel and Jay Komorowski was heard in the Lake Superior Court V by the Honorable William E. Davis, Judge. This is a defamation case, not a Family Law case, but it should be of interest to anyone who has been the subject of a bitter custody battle or divorce and had statements made against him or has made statements about the judge.
First it may be necessary to give some definitions. Defamation is the act of defaming; false or unjustified injury of the good reputation of another, as by slander or libel. Slander is spoken defamatory content while libel is printed defamatory content.
Christine Dugan appeals the trial court's grant of summary judgment in favor of Mittal Steel USA, Inc. (“Mittal”), and Mittal employee Jay Komorowski (collectively, “Appellees”) on her defamation claim. We affirm in part, reverse in part, and remand for further proceedings. For publication, Cron Judge.
This case revolves around a theft ring at Mittal where Dugan was an employee. Mittal hired an investigative firm who interviewed Dugan and other employees. Mittal subsequently fired Dugan who filed a grievance with her union. An arbitrator determined that Mittal did not “marshal enough evidence to prove that [Dugan] engaged in illegal conduct or otherwise defrauded [Mittal].” Mittal reinstated Dugan the next month.
Dugan filed a complaint against Mittal, Komorowski, and the investigators, alleging defamation per se and intentional infliction of emotional distress. Mittal and Komorowski filed a summary judgment motion after the investigative service had been dismissed. Dugan filed a response. The trial court entered an order granting the motion that reads in pertinent part as follows:
After reviewing the facts in the light most favorable to the non-moving party, the Court hereby finds that the stipulated statements at issue do not constitute defamation per se as a matter of law. The Court also finds that, even if there was a genuine issue of material fact relative to whether she sufficiently stated a claim for defamation per se, the evidence demonstrates that all of the statements at issue are protected by qualified privilege, and there is no evidence to support an abuse of the privilege. As a matter of law, the statements at issue are not sufficiently extreme or outrageous so as to state a claim for intentional infliction of emotional distress and there is no evidence that [Dugan] has suffered emotional distress sufficient to state a claim under this theory as a result of the statements at issue.
The Court had previously defined defamation in this way, “A defamatory communication is one that tends to harm a person's reputation by lowering the person in the community's estimation or deterring third persons from dealing or associating with the person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007) (citation, quotation marks, and brackets omitted).
When a person sues for defamation the Court requires that to prevail on a defamation claim, a plaintiff must prove four elements: Hamilton v. Prewett, 860 N.E.2d 1234, 1243 (Ind. Ct. App. 2007), trans. denied. (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages.
Statements about people are often made with the purpose of disgracing that person and are done so with malicious intent. This is often so in the public forums readily accessible on the Internet. We may often see statements that a person is a criminal, has engaged in some type of misconduct or has committed a sexual offense. In making these statement all four elements are often met. The court provides protection to those making the statements. Specifically, that the statement must be false. “Any statement actionable for defamation must not only be defamatory in nature, but [also] false.” Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 136 (Ind. 2006).
The court went further to say that “Communications are considered defamatory per se when they impute 1) criminal conduct; 2) a loathsome disease; 3) misconduct in a person's trade, profession, office, or occupation; or 4) sexual misconduct to the plaintiff.”
The court also provides protection in the doctrine of qualified privilege, which “protects communications made in good faith on any subject matter in which the party making the communication has an interest or a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.” Coachmen Indus., Inc. v. Dunn, 719 N.E.2d 1271, 1276 (Ind. Ct. App. 1999), trans. denied (2000). Qualified immunity protections are often found in statute in such places as the mandatory reporting of suspected child abuse or neglect.
To those who think they may be able to sidestep a defamation suit by using innuendo and letting the reader connect-the-dots you may want to read the court's opinion here - "some communications are reasonably susceptible to either a defamatory or a nondefamatory interpretation. Words not actionable in themselves may become actionable by their allusion to some extrinsic fact, or by being used and understood in a different sense from their natural meaning. Such words are deemed actionable per quod, and they acquire a defamatory meaning when placed in context or are connected with extrinsic facts or circumstances. If the defamatory nature of the words appears without resort to extrinsic facts or circumstances, then the words are deemed actionable per se." McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999) (citations omitted), trans. denied.
To avoid suit for defamation it is necessary that the allegations be true or at least made in good faith with a rational belief that they are true. If you have a bone to pick with someone and want to bring public scorn upon that person through posts on a blog, discussion board, website or some other public medium of communication then it is best to make sure that it is true. The truth is not an absolute defense though. Someone who goes out of his or her way to be overly diligent in postings may still be successfully sued.
In a lawsuit by animal protection volunteers against employees of a government investigating commission who allegedly published defamatory material about them on a government website, the claim was time barred by a one-year New Jersey statute of limitations for defamation claims. The statute of limitations began to run on the date the material was first published on the website, and that time period was not extended by the fact that the website was subsequently updated or modified while continuing to contain the same allegedly defamatory material. Churchill v. State of New Jersey, 876 A.2d 311 (N.J. Super. A.D. 2005).
Statute of limitations barred defamation claims brought by grand jury witness against deputy district attorney and county based on statements made to author of book allegedly falsely describing her as a "felony probationer." The time within which to bring the defamation lawsuit started to run, at the latest, when the book was published and distributed to the public, and was not extended based on the fact that the plaintiff allegedly did not discover that the material was in the book until she subsequently read it. Shively v. Bozanich, No. S094467, 7 Cal. Rptr. 3d 576, 80 P.3d 676 (Cal. 2003).
Indiana is unusual in that its courts have held that the statute of limitations begins when the "damage" of the statement is "susceptible of ascertainment," rather than when the statement was published. Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992). The Wehling court determined that this means the statute of limitations begins when the plaintiff knew about the harm caused by the disputed statements or would have known about the harm if she had exercised due diligence.
Whether you are the one making the defamatory statements or on the receiving end of it other jurisdictions have basically said that nothing can be done about it once that statute of limitations has expired. In Indiana though the standard is when the person first became aware of it or should have through due diligence.
The Indiana statute of limitations is two years. IC 34-11-2-4 Injury or forfeiture of penalty actions Sec. 4. An action for: (1) injury to person or character; (2) injury to personal property; or (3) a forfeiture of penalty given by statute; must be commenced within two (2) years after the cause of action accrues.
Indiana has not yet addressed the single publication rule that I am aware of. The safest way at this time would be to always ensure that the information is truthful or that you have a reasonable belief that it is. Secondly, once it is published don't republish the information. Just provide a link to the original publication.
With the easy of obtaining and affordable prices of photographic and computer equipment child pornography is rapidly expanding in both the terms of producers and images. Child pornography is the still or moving images of children engaged in sexual activities or in the nude. Legally it is described as follows:
Under federal law (18 U.S.C. §2256), child pornography is defined as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where
~ the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct; or ~ the visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or ~ the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
Federal law (18 U.S.C. §1466A) also criminalizes knowingly producing, distributing, receiving, or possessing with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that ~ depicts a minor engaging in sexually explicit conduct and is obscene, or ~depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and such depiction lacks serious literary, artistic, political, or scientific value.
Sexually explicit conduct is defined under federal law (18 U.S.C. §2256) as actual or simulated sexual intercourse (including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex), bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person. Who Is a Minor?
For purposes of enforcing the federal law (18 U.S.C. §2256), “minor” is defined as a person under the age of 18 years.
The US Department of Justice ten years ago estimated that there were over one million children who had been the subjects of child pornography. [1] The actual numbers today are in the millions of new subjects each year. Forty percent (40%) were "dual offenders," who sexually victimized children and possessed child pornography.[2]
Experts differ over any causal link, with some experts saying that use of child porn reduces the risk of offending by satisfying a sexual need while others contend that child porn acts as a gateway to actual child molestation.[3] The production of child pornography, particularly of nude images, can be used for the purpose of "grooming". This may be to coax the child into more graphic acts and images of for molestation and prostitution. It is for this reason that all child pornography is a crime.
The new face of the child pornographer ~
In a study of 1,713 people arrested for the possession of child pornography in a 1-year period, the possessors ran the gamut in terms of income, education level, marital status, and age. Virtually all of those who were arrested were men, 91% were white, and most were unmarried at the time of their crime, either because they had never married (41%) or because they were separated, divorced, or widowed (21%).[2] The high arrest rate for men should not be seen as an indicator of who produces kiddie porn. One study that asked respondents if they had produced child pornography found that females admitted to production at a rate 20% higher than that of males.[4]
Just as with many other social ills men have been left to bear the burden. Although there is clear evidence that women commit as many acts of Domestic Violence as men[5] the men are the ones targeted for prosecution. The same is being done for child pornography. In one instance a boy age 13 was charged with possession of child pornography that was produced by and transmitted to him by an older girl.[6] The girl who produced the kiddie porn, although known to police, was not arrested.
Although the largest demographic of child pornographers is teenage girls the prosecution of this crime, in discriminatory fashion, is still overwhelmingly against men and boys. California once passed a law mandating that an arrest be made when called to the scene of a Domestic Violence incident. The number of arrests of men increased 37%, while the number of women arrested soared by 446%.[7] The law was soon repealed because it did not have the intended effect of raising the arrest percentage of males.
Again we have a situation where females are creating a gateway for some people to engage in producing hard-core child pornography themselves or advancing to child molestation. Child pornography is not a victimless crime and those who produce it, regardless of gender, should not be treated as though it is simply a fun game.
1] Levesque, Roger J. R. (1999). Sexual Abuse of Children: A Human Rights Perspective. Indiana University. pp. p65. ISBN 0253334713. 2] Janis Wolak, Kimberly Mitchell, and David Finkelhor Internet Sex Crimes Against Minors: The Response of Law Enforcement (Alexandria, Virginia: National Center for Missing & Exploited Children, November 2003) 3] Carr, John (2004). Child abuse, child pornography and the internet: Executive summary. NCH. 4] The National Campaign to Prevent Teen and Unplanned Pregnancy, December 2008, Sex and Tech 5] Gelles RJ. The hidden side of domestic violence: Male victims. Women's Quarterly, 1999. 6] Craig Civale / WFAA-TV, Oct 2008, Student faces porn charge over text message sent by classmate. 7] Wells W, DeLeon-Granados W. Analysis of unexamined issues in the intimate partner homicide decline: Race, quality of victim services, offender accountability, and system accountability. Final report. Document No. 196666, 2000.
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.
The Indianapolis Star had this editorial today which comments on public school teachers who have been accused of sexual misconduct being asked to leave with a severance package. Please read this editorial and then my comments.
* * * * * * Easy way out is hard on the kids
Lawrence Township school officials and their attorneys say they had no choice.
Faced with credible allegations of sexual misconduct against four teachers, the district tried to fire them, concluded it would be too difficult to substantiate the accusations, worried about legal liability and finally opted for what an assistant superintendent calls "the lesser of two evils."
That is, the school system paid Clifford Campbell, George Fallowfield, Michael S. Graham and Thomas Woodward to hit the road -- and kept the reasons for their departure secret, freeing them to work with vulnerable young people somewhere else.
Whether or not that outcome truly was unavoidable, it is in no way satisfactory to educators, parents or the public. State Superintendent of Public Instruction Tony Bennett and state teachers union official Dan Clark, among others, said as much when apprised of a StarWatch investigation published Sunday.
In sympathy toward Lawrence Township, no criminal charges were filed against the teachers and none has conceded guilt. Proving the claims would not have been easy, especially with minors having to come forward as witnesses.
But, as Bennett points out, the standard of proof for teacher malfeasance is lower than that for criminal prosecution. He intends to investigate the matter himself to determine whether the four should continue to hold licenses. Meanwhile, the State Board of Accounts has asked the Marion County prosecutor to look into the technicalities of the payouts.
More broadly, this sad episode points to gaps in Indiana law. Unlike some other states, school districts here are not required to report the circumstances behind employee departures to the state department of education. Also, some states forbid the kind of secret deal Lawrence Township and the four teachers struck. The cases came to light only after The Star pressed in federal court for the release of information.
The Indiana General Assembly, which only recently tightened criminal background checks for school job applicants in response to another Star investigation, needs to correct the statutory flaws regarding existing and departing teachers. The Lawrence Township affair may well be the tip of an iceberg.
At this point, no one knows the extent of the practice of covering up alleged reprehensible behavior by school employees. The state needs to know, and it needs more power to provide recourse to both accusers and accused. School districts also must ask themselves a hard question: Is the easy way out the only way out? Indiana's children deserve better than a choice between evils.
* * * * * * * *
The Star must be commended for their continuing efforts to investigate these matters and protect children. The difficulty in asking who is acting in the best interest of our children is that, whether through delusion, perceived legal obligation or actually doing it, most people believe they are even when acting opposite of each other.
In the immediate instance we have four teachers who have been accused of sexual misconduct but no criminal charges were filed. Although there is no requirement that a teacher be criminally charged or convicted to be fired the district still felt it would be difficult to substantiate. A dismissal for 'sexual misconduct' would make it difficult for a teacher to get hired in most school districts and thus could effectively deny to these teachers the opportunity to work in their chosen field.
So a school district must be very careful in stating a reason for a dismissal as it could result in a lawsuit and in these cases it was determined that they most likely would have sued. So now these educators are free to work in other school systems.
I choose to address this because I wondered two things; Why this happens; and, Is this a bad thing.
It seems to be a simple proposition, if there is a credible accusation against a teacher of having inappropriate sexual contact with a child then fire that teacher and let others know the reason. However, the standard of defamation intercedes in the process at this point. If a teacher wanted to sue for damages to his or her reputation he or she would need to show that the accusation was not credible, that it resulted in some type of public ridicule or scorn and that the teacher was financially aggrieved such as not being able to find similar employment.
The problem the school district here faced is that the public scorn element would be easily satisfied by the large number of people who have no respect for our constitutional protection of innocent until proven guilty. Does this mean we allow sex offenders to remain in the classroom until they are convicted? Absolutely not. We have administrative procedures available that maintain sufficient due process which, I feel, should have been used. The civil standard of proof by a preponderance of the evidence is satisfactory.
My local school district, the Lebanon Community School Corporation, recently implemented a policy stating that parents who want to come see their children at school other than at regular performances like sporting events must submit to a criminal background check. I oppose this and all similar policies that rely on arbitrary standards to attempt to weed out sex offenders or other who may be believed to pose a danger to children. The four teachers in this immediate case have nothing on their records and can be back in the classroom with students while no one would know of the accusations without specifically searching for it elsewhere.
It is time that school administrators start to earn their $100,000+ per year salaries and make administrative decisions rather than relying upon pieces of paper to make decisions for them. The policies and paperwork they rely upon have made teacher hiring and firing or admission of visitors almost as automated as applying for a mortgage. Administrators could soon be replaced by kiosks strategically placed throughout the buildings. If this is the way they are going to continue to administrate then I am all for it. Save us taxpayers some money. However, there is still something to be said for instinct and a 'gut feeling'.
Secondly, as a society we need to start accepting that there are distinctions in sexual offenders and that not all sex offenders are a danger to children. The paranoia about sex offenders could possibly keep any of the four teachers in this instance from seeking the counseling and treatment any of them may need if they did indeed commit any of the acts for which they were accused.
Surprising to most people is that the largest group of kiddie porn producers in the United States are roaming the hallways of schools on a daily basis and there is little the schools are doing to stop it. Tech savvy teenage girls produced and distribute their productions across the web and through other electronic means moreso than any other demographic.[1] More alarming is that they number in the millions. The federal courts cannot even begin to keep up with the prosecutions. Over 99% of kiddie porn producers will never be prosecuted. Children attending high schools will continue to interact with kiddie porn producers on a daily basis even if background checks were applied to students. Many of these, being females, will go on to being school teachers or parents visiting the school. Yet, as a society we will still remain heavily dependent upon sex crime prosecutions as a means to purportedly protect our children, but the effect may be the exact opposite.
As a young man I spent a period of time in federal prison which I have long called the most important and valuable education in my life. I learned about the motivations, actions and consequences that many criminals faced. Whether it was already in me and I honed the skill or learned it while there, I became an instant judge of character. I spent most of my time in level 5 or 6 institutions including Terre Haute USP. Level 6 inmates are the most severe offenders.
Being among that type of crowd it was important to know those around me. Will this guy fight to protect me based upon some loose allegiance or shank me in the back? By the time I was released I could rather easily identify sexual aggressors [rapists], sexual facilitators, drug-dealers, violent offenders and those who just 'puffed up' but otherwise wouldn't fight. I also knew who would physically fight to defend me and thus got accepted into my association. As a 'jailhouse lawyer' I had access to case files and was able to confirm my feelings. I give you this background for perspective on what I have to say now.
Criminal background checks in school corporations are nothing more than window dressing. These are feel good measures and they work. Many people feel good about these 'protections' and the effort the schools are making to 'protect' their children. That is just the legal standard that needs to be met coincidentally. If a child is abused and the school is sued they can be assured that they have a paper trail of feel-good efforts they undertook that will convince enough jurors not to find them liable.
If you have ever worked with Venn diagrams you can plot this and see what is left. Most sex offenders who get convicted were obvious about it and do not re-offend. For some it is because of treatment to control a compulsion while for others it was simply a one-time or one-victim situation such as the future spouse/mate. Those who haven't been caught fall into two categories; 1) those who haven't been caught yet, and; 2) those who are so persuasive or skilled as to never get caught. A criminal background check can work as an effective filter. The effect it has concerns me though.
Those with prior convictions who have been counseled and now pose no threat to students along with those who may be identified and watched closely for good cause are eliminated from the teacher/visitor pool. We then have those who are so convincing, trusting and skilled at child-molesting that they will never be caught. With them are those who simply haven't been caught which is the mix of the remaining teacher/visitor pool. Thus the odds of your child interacting with an active child molester are increased by criminal background check elimination.
There are some simple solutions to protecting children that require everyone to take responsibility. The first and most effective is to teach your children about sexuality at a young age and what is appropriate. I am not saying the good touch bad touch except for the youngest with appropriate follow-up as they mature. Although I believe it is acceptable for parents to teach adolescents that touching themselves for sexual satisfaction is normal and better than molesting someone else it is still illegal under Indiana law [2] for parents to do that.
Schools should mandate that all employees having regular contact with students take an introductory class about children, sexual attraction and appropriate contact. Those who wish to take follow-up classes, either as therapeutic for themselves or to learn more about it, could do so confidentially.
Schools should also do more to ensure that children know what is appropriate and that they are encouraged to come forward if they feel something inappropriate has happened. When I was in elementary school a student may have had a bad day and let loose in a crying fit for whatever reason. It was not unusual for a teacher to set the child on her lap and provide comfort that may have ended with a kiss on the forehead. It was exactly what was needed. That teacher would likely get fired today. I seriously doubt she was getting off on some child's snot dripping down her blouse though.
The schools also need to eliminate the opportunities available for inappropriate activity rather than trying to eliminate those they feel may engage in such. It is much easier to prevent the situation than it is to establish some tool to guess who would be the offender. There should still be a human element in deciding who is appropriate. Maybe it is time to hire those who spent a long time in prison to do evaluations of potential hires.
Those who are so quick to jump up and say castrate the guy who has only been accused are the reason the schools are afraid to label someone as a sex offender. Wendy McElroy has addressed the issue of false allegations which is why it is good that these teacher were able to leave the school system in the manner they did. In one study it was found that 40% of rape accusations were false[3]
We also have those people who want someone else to take responsibility. They want a background check and other artificial methods of 'protection' because they don't want to have 'the talk' with their own child or be the one to answer "Why did you hire that person?". These are the people who allow children to be endangered and are equally to blame when a child is abused.
As a society we should not be so hung up on sex. Nearly all of us came into the world that way. Understand that offenders need treatment and that to truly protect children, opportunities, not people, need to be avoided. It is time to put people back into the equation. That may be yourself. It all starts with you and your own child and ends with those who have custody of our children during the day, administrators, making decisions. Next time a child is abused you may need look no further than yourself and the policies you supported as one of the culprits.
1] The National Campaign to Prevent Teen and Unplanned Pregnancy. 22% of female teens in a survey response indicate they have produced photos of nude or semi-nude [topless] young girls. 2] Indiana Code 35-42-4-6 makes it a crime for any person to "urge" or "advise" a child "less than sixteen (16) years of age" to engage in any "touching intended to arouse or satisfy the sexual desires of . . . the child." 3] Eugene Kanin of Purdue University
From the archives of This is a crazy backwards world we live in comes another story of parents trying to protect their children and losing custody over it. KDVR Fox 31 reported the following on 05 August 2009:
DENVER - New information about a controversial case we first told you about Tuesday. An Adams County couple is upset that police and social services were called after they contacted the Rocky Mountain Poison Control Center.
They were worried their two-year-old son might have gotten into some medicine. Social Services ended up taking the couple's two children into temporary protective custody.
The Rocky Mountain Poison Control Center says they do not automatically call police, but are required to report cases of suspected child abuse or neglect. They say they cannot comment on specific cases, but say they had several phone contacts with the parents and, after the Medical Director was informed of the circumstances, he decided to report it.
They say they receive over 350,000 calls a year and feel they need to call police in extremely rare cases.
* * * * * * *
I have long cautioned parents to be very careful about calling the police or other agencies for emergency assistance, especially those who are involved in a child custody dispute. The above story clearly demonstrates why such caution should be taken. Although it is deplorable that during a time of crisis you must evaluate the risk of danger to your child versus the risk of losing custody, that is what you MUST do.
Is CPS/DCS going to assume that because you made a phone call to the Poison Control Center that you are endangering a child because that child somehow accessed some medication that he or she shouldn't have and then take the child? Or better, if the child were to die, you get charged with MURDER. For those of you who have followed my blog you are quite familiar with the Elizabeth Fairfield case in Boone County Indiana.
The Fairfield's took their daughter Brittany to the hospital one evening after she went into a coughing fit that she couldn't control. However, the doctor at Witham Memorial Hospital in Lebanon, Indiana diagnosed her as having croup and released her before she was stabilized. Within a few hours she died of an overdose of Tramidol. The doctor who misdiagnosed her suggested that she was intentionally poisoned after leaving the hospital.
Boone County Prosecutor Todd Meyer then charged Fairfield with multiple counts including murder. Ultimately the case was resolved through a plea agreement in which Mrs Fairfield served 6 months in jail for the alleged murder.
That murder charge and jail time was for the person who tried to get medical care for her dying child but unfortunately took her to a hospital that misdiagnosed her and sent her home to die.
When at the mall and your child gets lost do you instinctively go to the information desk where they contact mall security and an announcement is made describing the child? Now consider that, by coincidence, the other parent, a friend or family member may be in the same mall and becomes aware of this. You may soon find yourself back in the family law court facing a change in custody which WILL happen. In family law court there is no coincidence, there is no unfortunate accident and there is no simple chance occurrence; there is only bad parents causing bad acts.
Before you call for help, before you run around asking has anyone seen my child or before you simply try to protect your child just keep this in mind; you live in a world where many people are looking to make money from you losing custody of your child.
As a parent you have a moral and legal obligation to provide for and protect your children. You are their keeper, their guardian. But now, many parents are paying significant amounts of money to risk their children's lives in a newer gambling game with little opportunity for return.
We have all heard of the parents who dose their children with high alcohol content "cough syrup" to calm them or get them to go to sleep. We know of Nancy Reagan's "Just Say No" campaign that encouraged children to not take drugs. Ironically this is a person who, according to her daughter, was addicted to tranquilizers and other prescribed drugs.
In the 1990's Amphetamine became a widely prescribed drug to chemically lobotomize children who were deemed to be disruptive, uncontrollable, restless or otherwise exhibiting undesired behaviours. Along with Cocaine and heroin, methamphetamine under the name Desoxyn and amphetamine are also available by prescription. Desoxyn and Ritalin are used to treat a rare childhood condition known as ADHD. Sudden death has been quite common among users of methamphetamine and amphetamine.
We know of the gamble that many parents took with their children's lives which had the potential to return millions of dollars in payouts to a few. Some felt it was worth it for them but it clearly wasn't worth it for the children. This form of gambling should be immediately outlawed but unfortunately it won't be. There are too many people contributing to the fund from which these winnings are paid and the house [Big Pharma] spends millions of dollars each year lobbying to keep this form of gambling legal.
It is also very concerning that children of divorced parents, who live in a single parent maternal headed household in 80% of cases, were twice as likely to be participants in this game. In one instance a judge in Indiana took visitation away from a father based in part because the father "had threatened not to give [the child] her prescribed medications for her ADHD." What is more troubling is that even in the face of more tort reform and health-care [sick-care] reform designed to protect Big Pharma parents are now endangering their daughters in a new high stakes gambling game that appears to pay-out even less.
Giant pharmaceutical company Merck introduced Gardasil as a purported treatment for the Human palpominovirus [HPV] which is a sexually transmitted virus which is usually cured through the natural process in about two years with no side effects. Those with prior infections are left with a natural immunity to the virus. As with all vaccines only variant strains of a virus are allowed to gestate, grown and be passed on such as the Swine Flu which is readily passed by carriers who have received flu vaccinations. Likewise, Gardasil is only reported to protect against a few on the many HPV strains. This will result in only the vaccine resistant strains being passed along to girls who have received the Gardasil shots and feel that Pap tests are unnecessary. This will likely lead to a much higher rate of cervical cancers a generation or two from now.
So, what side effects can be expected from the latest child victim gambling crazy.
Pain, swelling, redness, or itching where the shot was given; Mild fever; Nausea, vomiting, diarrhea, upset stomach; Dizziness, tired feeling; Runny or stuffy nose, sore throat, cough; Joint or muscle pain; Paralysis; Spontaneous abortion; or Death Merck cautions that "this is not a complete list of side effects and others may occur."
The rare side effects of HPV for those not using Gardasil or having Pap tests done is Cervical cancer Death
The side effects of HPV for those not using Gardasil but having regular Pap tests done is Early detection of cervical cancer
Merck is recommending that all pre-adolescent girls receive the vaccine. The company has lobbied heavily to doctors and schools to encourage parents to spend the high dollar cost for the actual vaccine. Merck has not been as forthcoming with promoting awareness of the dangerous and deadly side-effects. The vaccine has not been evaluated for the potential to cause cancer or be toxic to the genes. Other side effects include brain seizures, lupus, stroke, and chronic pain. Merck has been successful in getting the US Government to mandate that non US citizens pay for and be part of continue experiments using Gardasil, spending $6.6 million to lobby the US Congress. The Homeland Security’s US Citizenship and Immigration Services (USCIS) became the first government agency to mandate the use of Gardasil. All female immigrants’ ages 11 to 26 years old are to be vaccinated against HPV using one injection of Gardasil instead of the clinically recommended three. The 233,000 females ages 11 to 26 who took part in this experiment paid about a combined $52 million for one dose each. That is a very good return on Merk's $6.6 million investment.
I could say that, just as with playing the previous high stakes games like Russian Roulette, Prozac and Ritalin, those who choose to play Gardasil may be doing so with their lives and are entitled to do so at their own risk. Unfortunately, the Big Pharma companies have been creating gambling crazes that are now almost entirely dependent upon using those who can't legally object to being their victims. This has made the risk much more acceptable to those playing and much greater for the childhood victims.
In 2008, the global sales from Gardasil topped $2 billion dollars. Next in Merk's cross-hairs - pre-adolescent boys.
***So, Father's argument fails because even though he lives with the mother and child in the same home as a family that does not mean that he had physical custody of Sophia.***
Sometimes it is difficult to understand why reviewing courts make some of the statements they do. It would seem to be a no-brainer that unmarried parents living together with their child each have physical custody of the child. Not so. If this is the weekend that you do not have your children then sit back, relax and spend some time reading this.
This is a rather complex case that involves two courts in different states holding hearings on the same date concerning the same child. The maternal grandparents had sought custody of the child in an Indiana court on the same day that the putative father sought to establish parentage in Illinois. The question became which court had jurisdiction over the child and the parties.
Under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) the Illinois Court contacted the Indiana Court in an effort to establish who would assume jurisdiction. However, the Indiana Court ignored repeated request by the Illinois Court to cooperate in determining jurisdiction. The Illinois Court then assumed jurisdiction and vacated the Indiana orders.
The maternal grandparents (Indiana) appealed to the Illinois Court of Appeals which reversed the trial court and returned jurisdiction to the Indiana Court. The Court reasoned that Indiana had jurisdiction because the maternal grandparents were declared to be de facto custodians who had cared for the child for six consecutive months prior to the recent relocation of the mother and child to father's home in Illinois. see I.C. 31-17-2-8.5
The father sought rehearing by the Illinois Supreme Court. The Court granted rehearing and found that under UCCJEA the Indiana orders were void because the father had not been properly served and was denied due process. The Court laid harsh criticism upon the Indiana Court for not cooperating with the Illinois Court.
Following is an analysis of the case and opinion of the Illinois Supreme Court. This case provides a few important lessons which include making proper service upon the parties, establishing paternity, knowing the law and having counsel. An outline of the characters involved is provided preceding the background and analysis.
CHARACTERS Child: Sophia Grace Lindeman who was age seven months at the time of the initial proceedings. I note that generally minors are not named in court records but for some reason, in this case, the child was identified.
Mother: Alexis Ann Lindeman - 22 years of age - Alexis went to school through the twelfth grade, but did not graduate from high school because she was unable to pass her classes. She did not get her driver’s license until she was 22 years old because she could not pass the written test. Alexis had considered seeking child support payments from Andrew, but was reluctant to do so because she felt if Andrew paid support he would be awarded visitation. Despite this she went to live with him in Illinois prior to any legal actions. Alexis' father: John Lindeman [Sophia's maternal grandfather] Alexis' father's wife: Yvonne Lindeman [Sophia's maternal grandfather's wife] Alexis' mother: Kathy Engle
Father: Andrew Cochran - 21 years of age
Attorney Goetten - Representative for Alexis.
Bruce Mindrup, Ph.D., of Mediation Services of Mid-Illinois - A report by Mindrup was submitted at a hearing in Judge Bell's court on 24 April 2006. Mindrup opined that Andrew and Alexis interacted appropriately with Sophia and were attentive to her needs.
Thomas Piper, the Illinois Guardian Ad Litem - He was “very much opposed” to the child being removed to Indiana. He urged the court to take steps to ensure that a “full evidentiary hearing with both parties being present” occurred in Illinois.
Joyce Lowry, the Indiana Guardian Ad Litem
Jeannie McCartney, a child protection investigator in Illinois - She testified at paternity hearing in Judge Bell's court on 24 April 2006. Her preliminary assessment was that Alexis and Andrew were “very stable.”
James W. Day - Judge, Greene County Circuit Court, Illinois - Conducted initial paternity hearing on 11 April 2006 and then recused.
Lois A. Bell - Judge, Greene County Circuit Court, Illinois - Accepted paternity action
Karen M. Love - Judge, Hendricks Superior Court, Indiana - Heard Lindeman's Emergency Custody Petition and issued subsequent Indiana orders.
TIMELINE On 04 April 2006, the Lindemans filed a verified emergency petition for custody of Sophia in the Circuit Court of Hendricks County, Indiana.
On 11 April 2006, a hearing was held in the Indiana court by Judge Karen M. Love.
On 11 April 2006 the Illinois Court found that Andrew Cochran is the biological father of the Sophia.
On 17 April 2006, Alexis filed a motion in the Indiana Court to dismiss the custody action filed by the Lindemans for lack of personal jurisdiction and insufficiency of process. The court was informed that Andrew had established paternity in the Illinois Court.
On 18 April 2006, the Indiana Court held a hearing “to provide Alexis Lindeman with another opportunity to be heard” on the Lindeman's custody petition.
On 21 April 2006 the Indiana Court entered an additional order acknowledging Andrew’s parentage, declaring Andrew an indispensable party to the cause of action, and ordering Andrew to personally appear at a hearing set for April 26, 2006, in Indiana.
On 24 April 2006, a hearing on Andrew’s emergency petition for joint custody was held in Illinois by Judge Bell.
On 26 April 2006 a hearing on the issue of custody was scheduled to be heard in the Indiana court. However, there is no indication in the record that any such hearing took place.
On 28 April 2006, the Lindemans filed two motions: an emergency limited petition to intervene in the Illinois proceedings and an emergency motion to dismiss Andrew’s petition to determine existence of a father and child relationship for lack of jurisdiction.
On 03 May 2006 Judge Bell called Judge Love On 04 May 2006 Judge Bell called Judge Love On 05 May 2006 Judge Bell called Judge Love On 08 May 2006 Judge Bell called Judge Love On 12 May 2006 Judge Bell called Judge Love On 19 May 2006 Judge Bell called Judge Love On 26 May 2006 Judge Bell called Judge Love On 02 June 2006 Judge Bell called Judge Love - A member of Judge Love’s staff returned this call and stated that Judge Love would contact Judge Bell on 16 June 2006.
On 13 June 2006, the Lindemans filed an emergency petition in Indiana asking the court to make a decision to retain jurisdiction. There is no indication that Andrew or his counsel received notice of the filing of this petition, although Alexis did receive notice.
On 15 June 2006, the Indiana Court entered an “Order Retaining Jurisdiction”, without a hearing, essentially reaffirming its judgment of 18 April 2006.
On 16 June 2006 the record shows that Judge Love failed to call Judge Bell as promised.
On 16 June 2006 Judge Bell sent a letter to Judge Love, via fax respectfully requesting that Judge Love decline jurisdiction.
On 16 June 2006 Judge Bell sent a letter to Judge Love via fax with attached documentation of her repeated attempts to reach Judge Love by phone and reiterated her desire to discuss the matter with Judge Love “as the UCCJEA suggests.” The letters went unanswered.
On 19 June 2006, the Lindemans filed, in the Illinois court, an emergency petition to register the Indiana court’s orders of 11 April 2006 (order awarding the Lindemans emergency temporary custody of Sophia)
On 23 June 2006 Judge Bell sent a letter to Judge Love asking her to decline jurisdiction in this matter. Judge Love did not respond.
On 25 July 2006 the Indiana Court had a hearing scheduled “to determine preliminary issues of custody, parenting time, support, etc.”
On 21 August 2006 Judge Bell sent a letter to Judge Love asking her to decline jurisdiction in this matter. Judge Love did not respond.
On 20 September 2006 a hearing was held on the Lindemans petition for expedited enforcement of the Indiana child-custody determination and for determination of whether the foreign judgment should be registered. Judge Bell stated, "I attempted to contact Judge Love for, between 4 and 6 weeks by telephone. I have had multiple correspondences to her asking her to decline jurisdiction. Not one single other letter has she ever responded to. She never returned a telephone call. I find that bordering on unethical, certainly unprofessional."
CUSTODY PETITION
On 04 April 2006, the Lindemans filed a verified emergency petition for custody of Sophia in the Circuit Court of Hendricks County, Indiana. In that petition, the Lindemans alleged that Alexis was incapable of caring for Sophia and that they were Sophia’s de facto custodians under Indiana law.
On April 11, 2006, a hearing was held in the Indiana court by Judge Karen M. Love. The Lindemans were present, along with Alexis’ mother, Kathy Engle. Neither Alexis nor Andrew appeared; however, the Lindemans represented to the court that Alexis was served with notice, as they hand-delivered notice to her in Illinois and verbally advised her of the date of the hearing. Andrew was not served.
Kathy recounted a time at her home when she suggested that Alexis give Sophia a bath. Alexis replied: “I don’t do baths.” Kathy explained that she did not believe Alexis had a bond with Sophia. It seemed as though Alexis resented having to care for Sophia and was not inclined to meet Sophia’s needs. Yvonne testified that Alexis never bonded with Sophia and did not perform basic tasks necessary for Sophia’s care. For example, Alexis would not feed Sophia her cereal because Alexis could not watch television while she fed Sophia. Instead, Alexis would call Yvonne at work and ask her when she was coming home, stating that Sophia needed her cereal.
The Indiana Court entered a typewritten order wherein it granted temporary custody of Sophia to the Lindemans; appointed a guardian ad litem for Sophia; ordered that Sophia be immediately brought to Indiana; created a schedule of supervised parenting time for Alexis; and set a hearing for April 18, 2006, “to provide Alexis Lindeman with another opportunity to be heard.” Copies of the court’s order were sent to Alexis and attorney Goetten. Andrew was not included in the distribution.
On 21 April 2006, the Indiana guardian ad litem, Joyce Lowry, sent a letter to Judge Love expressing her concern for Sophia’s well-being. In the letter, Lowry reported that Alexis did not appear for her scheduled appointment on April 20, 2006, and did not call to cancel. Lowry further reported that “according to the grandparents” Alexis has “limited knowledge of child rearing & has not been involved in [sic] a daily basis for the care of the child.”
The Court entered an order that day stating, in part, “Safety of the seven month old child is the only emergency issue. Once safety is established a determination as to which state has jurisdiction can be made after all interested parties have an opportunity to be heard.”
PATERNITY
On 11 April 2006 Andrew presented his petition to establish paternity in the circuit court of Greene County, Illinois. The matter proceeded before Judge James W. Day. Andrew’s counsel presented Judge Day with documents filed in Indiana, as well as Judge Love’s court order, entered earlier that day. After reviewing those documents and questioning Alexis and Andrew, Judge Day found that Andrew’s paternity had been established and entered an order to that effect finding that Andrew Cochran is the biological father of Sophia.
On 21 April 2006, Andrew filed a verified emergency petition for joint custody of Sophia in Illinois. In the petition, Andrew stated that he and Alexis and Sophia’s parents all reside in Illinois; that Sophia resides in Illinois; that he and Alexis were fit to have custody of Sophia; and that it was in Sophia’s best interests that they have custody. Andrew also stated that an order for custody of Sophia was “pending” in Indiana. The Illinois court entered a temporary custody order on that date, awarding Alexis and Andrew temporary joint custody of Sophia pending a hearing. The court then continued the matter until April 24, 2006, for a custody hearing.
On 16 June 2006 the Illinois Court received notice of the Indiana Court’s order and, on that same day, Judge Bell made a docket entry declining jurisdiction and vacating the prior temporary custody order “[b]ased upon the order of the Hendricks County Indiana Superior Court entered this date.” Thus, Andrew had established paternity but the previous rulings by the Illinois Court affirming his custody were vacated.
JURISDICTION
Turning to the issue of jurisdiction, the Indiana Court stated: “I have some reservation about the Court’s jurisdiction since she’s moved, although I think certainly Illinois with just a couple of weeks, couldn’t possibly have jurisdiction on a time frame here. So I think Indiana would have to be the logical place.”
Section 206(b) of the UCCJEA, entitled “Simultaneous Proceedings,” provides in relevant part: “If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this Act, the court of this State shall stay its proceeding and communicate with the court of the other state.”
Upon the 24 April 2006 hearing the Illinois court found that it had jurisdiction over the parties and ruled that Illinois was the appropriate jurisdiction for a custody determination. The court then found that it was in Sophia’s best interests for Andrew and Alexis to be granted temporary joint custody. The matter was continued for a permanent custody hearing.
Judge Bell in Illinois tried to contact Judge Love in Indiana since two actions were filed on the same day. Although Sophia had lived in Indiana for over six months, at the time of the hearing, she was a resident of Illinois as were both of her parents.
The Illinois trial court judge, Bell, stated: “[F]ollowing the hearing that we held in June . . . I attempted to contact Judge Love for, between 4 and 6 weeks by telephone. I have had multiple correspondences to her asking her to decline jurisdiction. Not one single other letter has she ever responded to. She never returned a telephone call. I find that bordering on unethical, certainly unprofessional. It’s anticipated under the Uniform Child Custody Jurisdiction Act that Judges are supposed to talk to one another. She has absolutely refused to do that. I indicated to her in writing that if she had some way to assure me that she had jurisdiction, that I would decline jurisdiction. That’s what I did, according to what the statute tells me I am supposed to do. However, at this point she is [sic] failed to respond to me. . . . This child is in Illinois. This child’s mother is in Illinois. This child’s father is in Illinois. . . . [T]hose are the 3 parties that are the most important to this. I understand there is an order out in Indiana. That order was entered with no notice to the father. It was entered with only a notice handed by Mr. Lindeman to the mother. . . . [T]hat is not proper personal jurisdiction over either one of these parents. At the time that the order was entered, these parents were living in Greene County, Illinois, both of them. So, while Indiana may have had subject matter jurisdiction by being, by having been the residence of Sophia, I do not find that that order, whatsoever, is enforceable against either the father or the mother. That’s in short, I am going to deny the Petition to Register the Foreign Judgment. I informed Judge Love of that in writing several weeks ago. I asked her again if she would contact me to discuss it, if Indiana law was any different with respect to personal jurisdiction. She failed to do so. As far as I am concerned, the case stays here.” The Lindemans appealed.
THE SUPREME COURT DECISION
The appellate court reversed the trial court’s decision.
On 11 April 2006 hearings were held in Indiana for Lindeman's custody petition and in Illinois for Andrews paternity petition. The Supreme Court reasoned that Andrew was not entitled to notice of the 11 April Indiana hearing but was for the 18 April 2006 hearing which he did not receive.
Andrew maintains that the Indiana court did not have jurisdiction over Sophia or her parents and he was a person entitled to notice of the custody proceeding, but he did not receive notice as was required by the UCCJEA. The Lindemans argue that Indiana was Sophia’s home state at the time the custody proceeding was initiated and, therefore, Indiana had jurisdiction over the matter. Further, the Lindemans argue that Andrew was not entitled to service at the commencement of the custody proceeding because, at that time, he had not established paternity.
Section 201 of the UCCJEA provides, in relevant part: “(a) Except as otherwise provided in Section 204 [temporary emergency jurisdiction], a court of this State has jurisdiction to make an initial child-custody determination only if: (1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State[.]”
At the 11 April 2006 hearing the Indiana Court found that the Lindeman's were acting as de facto custodians of Sophia. Since Andrew had not established paternity at the time of that hearing he was not a party entitled to notice or to be heard. Thus, it was only necessary for the Supreme Court to determine two things; had Sophia lived in Indiana for six months and were the Lindemans acting as a parent.
In the ruling the Supreme Court stated "We accept the Indiana court’s factual assessments as they relate to those issues, and thus conclude that the jurisdictional requirements set forth in section 201 of the UCCJEA were met in this case and that the Indiana court did, in fact, have home state jurisdiction. Accordingly, Andrew’s contest of registration on this basis must fail."
Under this reasoning Andrew loses his challenge and the Lindemans have custody of Sophia. The court then addresses Andrew’s assertion that his contest to registration of the Indiana order should have been sustained because he was not served with notice of the proceedings even though he was entitled to such notice under section 305(d)(3) of the UCCJEA.
Section 305(d) of the UCCJEA provides: “(d) A person seeking to contest the validity of a registered order must request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that: (1) the issuing court did not have jurisdiction under Article 2; (2) the child-custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2; or (3) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Section 108, in the proceedings before the court that issued the order for which registration is sought.” [emphasis added]
Section 205 of the UCCJEA provides guidelines for determining whether a person is entitled to notice of the child-custody proceeding. Section 205(a) states: “Before a child-custody determination is made under this Act, notice and an opportunity to be heard must be given to all persons entitled to notice under the law of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.” Thus, if Andrew was the physical custodian of Sophia then he was entitled to notice.
If Andrew was the physical custodian which entitled him to notice and he did not receive notice then the court would have grounds to reverse. The Supreme Court managed to shoot down this argument. The court explained that the term “physical custody” is defined in the UCCJEA as “physical care and supervision of a child.” It is undisputed that Sophia was living with Andrew when the Indiana child-custody proceeding was commenced. However, there is no evidence in the record that Andrew was responsible for Sophia’s physical care and supervision. The evidence presented simply established that Andrew and Sophia lived under the same roof and that Sophia was being financially provided for by Andrew’s family. The fact that Andrew and Sophia were living in the same home is insufficient to establish that Andrew was entitled to notice under section 205 of the UCCJEA as a person having physical custody of Sophia. So, Andrew's argument fails because even though they live in the same home as a family that does not mean that he had physical custody of Sophia. This logic seems spurious at best.
Andrew also contended that he was entitled to notice of all of the Indiana child-custody proceedings as Sophia’s presumed father. But, the Supreme Court saw it otherwise by stating, "The fact that the interested parties presumed that Andrew was Sophia’s father is not a basis upon which Andrew can establish that he was entitled to notice. The Illinois Parentage Act of 1984 states that a man is only presumed to be the natural father of a child if: (1) he and child’s natural mother have ever been married to each other and the child was born or conceived during the marriage; (2) if he marries the natural mother after the child’s birth and he consents to be named as the child’s father on the birth certificate; or (3) he and the natural mother signed an acknowledgment of paternity."
Andrew had taken none of those steps prior to the 11 April 2006 hearing. So, the court reasoned that, again, he was not entitled to notice. His argument fails and the Lindemans remain the custodians of Sophia. But wait, the court goes further. "We nevertheless conclude that Andrew was a person entitled to notice, which he did not receive, under section 205 of the UCCJEA. The facts demonstrate that the Lindemans filed their verified emergency petition for temporary guardianship on April 4, 2006. They did not serve Andrew and were not required to, as Andrew had not yet established paternity."
To this point the Supreme Court has said that Andrew had not established paternity or met any requirement that he be served with notice of the hearing but that "We nevertheless conclude that Andrew was a person entitled to notice". If you are confused at this point then you are in good company.
On 11 April 2006 the Indiana Court made clear that it was granting the Lindemans’ petition without hearing from Alexis on an emergency basis, but Judge Love noted that she needed to hear from Alexis and reassess whether the award of temporary custody to the Lindemans was appropriate. The hearing was continued for one week. This, the Supreme Court has reasoned, saved Andrew's notice requirement argument.
On April 18, 2006, Alexis appeared in the Indiana court. The court heard testimony from Alexis which was not made part of the instant record. After hearing this evidence, the court concluded that temporary custody should remain with the Lindemans and ordered Alexis to return Sophia within 24 hours. When the April 18, 2006, hearing commenced in the Indiana court, the court was well aware that Andrew was an indispensable party to the proceedings, and that Andrew did not receive proper notice.
Here, the Supreme Court finds in Andrew's favour. "We hold that Andrew’s contest to the registration of the Indiana court’s orders was properly sustained by the [Illinois] trial court because Andrew was not given notice and an opportunity to be heard, as section 205 of the UCCJEA requires, even though he was a parent whose parental rights had not been terminated." The Indiana Court should have continued the matter for a short time to give Andrew notice and an opportunity to be heard, as it did for Alexis.
The Court also upheld Andrew's challenge to the Indiana Court's 15 June 2006 which effectively reaffirmed the 11 April 2006 temporary order. The Court went further, stating, "We will not construe the UCCJEA to require an Illinois court to recognize any judgment that would effectively deprive a father, who has properly established paternity, of his parental rights without notice or hearing. To do so would violate the explicit language of the UCCJEA, which states: “[t]his Act does not govern the enforceability of a child-custody determination made without notice or an opportunity to be heard.”. It would also violate the principle, embedded in our jurisprudence, that parents possess the fundamental right “to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.” Wickham v. Byrne, 199 Ill. 2d 309, 316 (2002).
The Supreme Court then took an opportunity to make scathing remarks to Judge Bell and emphasized the importance of the communication provisions of the UCCJEA. See In re Joseph V.D., 373 Ill. App. 3d 559, 562 (2007) (where an Illinois child support order was vacated due to noncompliance with the UCCJEA communication provisions). Section 206(b) of the UCCJEA, entitled “Simultaneous Proceedings,” provides in relevant part: “If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this Act, the court of this State shall stay its proceeding and communicate with the court of the other state.”. Judge Bell adhered to that statute when she called Judge Love eight times and wrote four letters. We acknowledge that Judge Love was not required to initiate communications with Judge Bell under the provisions of the UCCJEA that applied based on Indiana’s position as the court with initial custody jurisdiction in this case. However, we believe that she was required to participate when Judge Bell initiated communication pursuant to the UCCJEA’s mandate, and we are disturbed by her unwillingness to do so. The Indiana court’s order would have had Sophia taken from her mother and father and brought to Indiana by law enforcement personnel. A decision of such magnitude certainly warrants a telephone conversation between the courts involved in the matter."
CONCLUSION
The Illinois Supreme Court reversed the ruling of the Illinois Appelate Court which reversed the ruling of the Illinois trial court which had declined to accept the rulings of the Indiana Court under UCCJEA. The Indiana Court's order could not be registered in Illinois because Andrew was not properly served. When the Indiana Court became aware on 17 April 2006 that Andrew had established paternity on 11 April 2006 the court should have continued the hearing for a few days to give Andrew an opportunity to be heard. That is where due process failed.
Due process is simply the opportunity to be heard. Since Andrew was not afforded that right then the Indiana order could not be registered in Illinois. As Sophia and her parents, Andrew and Alexis, were all residents of Illinois the Indiana order granting custody of Sophia to the Lindemans could not be enforced.
The case emphasizes a few points. Primarily that proper notice must be made on all interested parties. In this case with overlapping hearings in adjoining states research must be done to determine who the interested parties are. The Rules of Trial Procedure should be consulted as to proper notice. Simply telling someone about a hearing is not proper notice. Personal service can be made but must be through the delivery of documentation.
For fathers establishing paternity at the earliest possible time is a must. Has paternity been established prior to the 11 April 2006 hearing on the Lindemans' petition then this case would likely have not proceeded through the procedural web that it did.
I am not going to hold back in my scorn for Judge Karen M. Love. She has not previously made rulings that I found to be overtly harmful to children but with this she is clearly a disgrace to the judiciary. Judge Love has no business sitting in judgment of any mater that concerns the well-being of a child as she has no concern for childrens' well-being. This was not an oversite. She didn't just lose track of this. She absolutely ignored numerous requests from another judge to discuss an issue related to the safety of a child. This is deplorable and should not be tolerated.
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