Tuesday, July 20, 2010

Being an alcoholic doesn't boost child custody chances

What may seem obvious to most people didn't seem so to Robin Ann Parks who appealed the order transferring custody of her children to their Paternal grandparents because of her alcohol abuse.

The marriage of Parks and Cary Grube was dissolved in 2006. The father was awarded custody of the parties four children, ages 10-20 years now. In 2007 the parties agreed to modify custody transferring custody of the oldest child to the mother.

It is undisputed that despite being the noncustodial parent, Parks remained very active in the Children's lives.

Cary Grube unexpectedly died at his residence in late 2008. Parks was called to the home that night by the eldest child living there. She didn't stay long and left the children with the paternal grandparents. The children and grandparents believed that she was drunk at that time.

Cary's will stipulated that his parents, the Grube's, would have custody of the children. Following probate Parks filed a petition for custody of the children. The trial court heard evidence and denied her petition. She then appealed.

During these hearings, evidence of Parks's history of alcohol abuse was presented. Specifically, Parks was arrested twice for driving under the influence of alcohol. In addition, Parks's former friend and neighbor, Milissa Woolwine, testified that she used to care for the Children because Parks was intoxicated and that Parks would “come home drunk with a stranger” during her parenting time with the Children.

Similarly, Parks's former boyfriend, Kevin Hembree, testified that Parks was intoxicated “a hundred out of a hundred and twenty” days that she lived with him in 2007. During an in camera interview two children stated that they believed their mother was intoxicated at a birthday party for one of them, which occurred after Cary had died.

Moreover, pages from the journals of the two children were presented which noted that when Parks is intoxicated, she yells at them, calls them names, and tells them that she does not want to see them again. One child wrote that when she is on the school bus, she prays that her mother is not intoxicated when she gets home.

Parks' sole argument on appeal is that there was insufficient evidence to support the trial court's decision to award custody of the Children to the Grubes.

In custody disputes between natural parents and third parties, a presumption exists that it is in the best interest of the child to be placed in the custody of the natural parent. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 458 (Ind. 2009).

Nevertheless, third parties can rebut this presumption by presenting clear and convincing evidence that the best interests of the child will be served by placing the child in the custody of the third party. In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002).

Our Supreme Court has stated that the issue is not merely the "fault" of the natural parent. Rather, it is whether the important and strong presumption that a child's interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with another person.

When making an argument to the Court of Appeals I feel that it is important not to be annoying or petty. Park's failed to do this. In her brief she argued that she had received counseling following her second drunk driving arrest but had never been treated for "alcoholism". The court had this to say in response, "Parks' argument that we find error on this basis is a request that we engage in senseless hair-splitting, which we decline to do."

One thing I encounter in custody modification proceedings is parties attempting to use circumstances prior to the last custody proceeding. Indiana Code section 31-17-2-21(c) provides that “The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 . . . of this chapter.”

However, as the trial court did in this case a court may consider an ongoing pattern of activities that affect the child's best interest. So even though the 2003 and 2005 arrest for driving while intoxicated occurred prior to the 2007 custody modification, there was evidence presented that the mother was still abusing alcohol and had been doing so for an on-going basis dating back to at least 2003. Thus, it was proper to consider the pre-modification actions.

Finally, Park's argued that the trial court impermissibly relied upon the testimony and wishes of the children to live with their grandparents. Parks is correct that it is a "longstanding rule that a change in the child's wishes, standing alone, cannot support a change in custody.” Williamson v. Williamson, 825 N.E.2d 33, 40 (Ind. Ct. App 2005).

However, Indiana Code section 31-17-2-8(3) states that “The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age,” is a relevant factor when determining a child's best interests. Ultimately the court must make a decision based upon the best interest of the child but the court may, and should, consider the wishes of the child.

I am a parent who doesn't have custody of my child, not because of any wrongdoing on my part, and can sympathize with the desires of Ms parks to have custody of her children. However, I think it is clear from the case documents that she has a significant problem with alcohol and this affects her ability to be an effective parent to her children. Quite simply the lesson to take from this is don't be a drunk and that factor wil not weigh on your suitability to have custody of your children.

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Saturday, July 17, 2010

Indiana Parenting Time Guidelines revisions Part I

The Domestic Relations Committee [DRC] of the Indiana Judicial Center prepared the first set of revisions to the Indiana Parenting Time Guidelines in session on Friday 16 July 2010.

The Committee presented four revised sections of the Guidelines concerning the first three of seventeen topics. They were, the Holiday Parenting Time Schedule, Weekends generally and, Summer vacation. The first revision made was to the portion of the guidelines that has provided the greatest confusion to judges, lawyers and parents which is as follows:


1. Conflicts Between Regular and Holiday Weekends.
"The Holiday Parenting Time Schedule shall take precedence over regularly scheduled and extended parenting time. Extended parenting time takes precedence over regular parenting time unless otherwise indicated in these Guidelines.
If the non-custodial parent misses a regular weekend because it is the custodial parent’s holiday, the regular alternating parenting time schedule will resume following the holiday. If the non-custodial parent receives two consecutive weekends because of a holiday, the regular alternating parenting time schedule will resume the following weekend with the custodial parent."

This has been interpreted in various ways to mean that the alternating weekend schedule is changed and no parent gets more than two weekends in a row, that the non custodial parent is limited to two consecutive weekends while the custodial is limited to three weekends or that either parent may in practice get three consecutive weekends.

The proposed language will read:

"Alternating weekends shall be maintained through-out the year as follows. If a parent misses a regular weekend because it is the other parent's holiday then that weekend is lost. If a parent received three (3) consecutive weekends then the alternating weekend parenting time resumes on the following weekend."

Some parents have, by their own initiative, used a two consecutive weekend schedule for each parent when their is a holiday conflict. Essentially the second and third weekends are reversed and the regular schedule resumes on the fourth weekend also.

My son, Therin Showalter, was telling me how he liked it better when his mother and I did the two weekend schedule rather than three. The committee chair, Judge Fee, gave him an opportunity to speak to the Committee on this issue. Ultimately it was decided to go with the three consecutive weekend format but commentary would be added to encourage parents to do the two weekend format if they choose.

The second portion adds a section to "2. Holiday Schedule" which concerns a conflict between the child's birthday and other holidays. The added section is as follows:

"[5] When the child's birthday falls within a Special Day, Holiday or Christmas Vacation the child's birthday shall remain with the parent having the child during the Special Day, Holiday or Christmas Vacation."

The third scheduling change was made to the Christmas Vacation and New Year's Day holiday schedules. This is another section that has been quite confusing to many and created an imbalance in splitting the time or resulted in a very convoluted schedule.

The Committee has wisely chosen to eliminate the New Year's Day holiday. The entire Christmas Vacation will now be divided in half. The Christmas Vacation period will begin two hours after the dismissal of school and end at 6:00pm on the day before school is scheduled to resume. The exchange time must occur between 9:00am and 9:00pm.

In odd numbered years the non custodial parent shall have the first half and in even numbered years the custodial parent shall have the first half of the break. In those years when Christmas does not fall in a parent's week, that parent shall have the child(ren) from Noon to 9:00pm on Christmas Day.

The final scheduling change was the addition of Martin Luther King Day and Presidents Day to the Holidays section. Parents who have the children on the weekend immediately preceding those days will keep the children overnight on Sunday if the children's school system is not in session on either or both of those holidays.

The final change by the Committee was a clarification of section "C. Holidays" which reads:

"In years ending with an even number, the non-custodial parent shall exercise the following parenting time:" and list the particular holidays. Following that is; "In years ending with an odd number, the non-custodial parent shall exercise the following parenting time:"

It was mentioned that it needs to be mentioned what the corresponding schedule is even though it seems obvious that the schedules reverse in the next year. I submitted the following language which was added to the revised Guidelines;

"The following Holidays shall be exercised by the non-custodial parent in odd years and the custodial parent in even years." and then "The following Holidays shall be exercised by the non-custodial parent in even years and the custodial parent in odd years." for the second section of holidays.

The Committee will meet again on Friday 20 August 2010. The two topics for that meeting will be, Using the IPTG to plan ahead, using the calendar and the tone of cooperation and Relocation.

The Committee is scheduled to complete their proposed revisions by 18 March 2011. The completed revised guidelines will then be posted for public comment. I invite you to contact me with any comments that you would like presented to the Committee.

I intend to be in attendance at all meetings. At the previous meeting on 21 May 2010 I was joined by Robert Monday of PACE, Jason Cannon and Randy Conrad both of Indiana Shared Parenting which is a companion group to Indiana Custodial Rights Advocates.

The Committee is made up of members Craig Bobay, Francis G Hill, Karen M Love, Sheryl L Lynch, Lynn Murray, Nanette K Raduenz, Frederick A Schurger, Deborah 'Debbie' J Shook, Richard R Stalbrink, Dean A Young, William C Fee.

Members of the public are invited to attend the meetings which usually take about five hours. Please watch for future posts about upcoming meetings.

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