Saturday, January 29, 2011

Right to Access Child's School Records - Indiana

In a time of persistent high unemployment, rising taxes and government spending cut mandates the last thing we need is for schools to waste money on attorneys. So, in an effort to reduce school spending waste I bring to you a clear and exact explanation of the right to access school records by non-custodial parents.

Indiana Code 20-33-7 governs access to a child's school records. Section 2 of that chapter provides as follows;

(a) Except as provided in subsection (b), a nonpublic or public school must allow a custodial parent and a noncustodial parent of a child the same access to their child's education records.
    (b) A nonpublic or public school may not allow a noncustodial parent access to the child's education records if:
        (1) a court has issued an order that limits the noncustodial parent's access to the child's education records; and
        (2) the school has received a copy of the court order or has actual knowledge of the court order.
As added by P.L.1-2005, SEC.17.

There is additional requirements placed upon parents through application of the Indiana Parenting Time Guidelines. Section I Part D begins with this commentary;

A child may suffer inconvenience, embarrassment, and physical or emotional harm when parents fail to actively obtain and share information. Parents should take the initiative to obtain information about their child from the various providers of services.

Here is the rule for school records with commentary
Each parent shall promptly provide the other with copies of a child’s grade reports and notices from school as they are received. A parent shall not interfere with the right of the other parent to communicate directly with school personnel concerning a child.
Under Indiana law, both parents are entitled to direct access to their child’s school records, Indiana Code ' 20-33-7-2.

There should be no difficulty in understanding this law. It is clear and simple. If you are a parent, whose parental rights have not been terminated or restricted by a court, then you are entitled to direct access to your child’s school records.

Reviewing courts have held that it is not the responsibility of school administrators to have to search judicial decrees and orders to determine a parent's standing. By implication it is the responsibility of the custodial parent to be the protector of the child's records by notifying the school if the child's natural parent has had his or her parental rights terminated or limited by a court order. Absent such a designation in the child's records, which all schools should have a system for establishing this, there should be no resistance to supplying the records when requested.

School administrators, especially those getting paid over $100,000 per year should not need to consult a school attorney for clarification of this law. It's the equivalent of a store manager calling a locksmith to tell him how to unlock the front door to let customers in.

Yet it just happened this past week in Anderson, Indiana. There a father trying to protect his children from abuse by the mother sought a document from the child's school records but was initially denied. Mother had requested that the father not be able to access the document. After a delay of over a day the school contacted its legal counsel and then released the record to the father.

If you encounter any resistance from school administrators when making a request for access to your child's records it is likely because they are trying to hide something. Request a copy of your child's entire file.

Additional records not a part of your child's individual file may be obtain through a request made pursuant to Indiana's Access to Public Records Act, I.C. 5-14-3 et seq.

Using a copy of this blawg posting when making a records request could save you time and your school corporation legal fees.

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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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Thursday, January 27, 2011

2011 Indiana SB0084 - Confidentiality of motor vehicle accident reports and CHILD CUSTODY

I want to bring this bill to your attention not because of the bill itself but as a demonstration of why it is necessary for you to be cognizant of the legislation that is pending before the Indiana General Assembly. I have learned the longstanding adage that "the devil is in the details" is nowhere truer than in the legislative process.

Quickly, some background on the phrase. The "Random House Dictionary of Popular Proverbs and Sayings" by Gregory Y. Titelman (Random House, New York, 1996) shows this phrase as a variation of "God is in the details - Whatever one does should be done thoroughly; details are important. The saying is generally attributed to Gustave Flaubert (1821-80), who is often quoted as saying, 'Le bon Dieu est dans le detail' (God is in the details). Other attributions include Michelangelo, the architect Ludwig Mies van der Rohe, and the art historian Aby Warburg. 'The Devil is in the details' is a variant of the proverb, referring to a catch hidden in the details. 'Governing is in the details''and 'The truth, if it exists, is in the details' are recent variants. Listed as an anonymous saying in the sixteenth edition of Barlett's 'Familiar Quotations,' edited by Justin Kaplan."

The title of the bill seems innocuous enough -- "Confidentiality of motor vehicle accident reports" but when I testified before the Senate Committee on Insurance and Financial Institutions this morning I told them I was going to surprise them and make a connection to child custody.

Here is the synopsis of the bill; Provides that, with certain exceptions, a motor vehicle accident report is confidential for 90 days after the date of the accident. Provides that a person who obtains or attempts to obtain an accident report or draft accident report in violation of the law commits a Class A misdemeanor.

You likely don't see the connection to child custody but if you do please call me now. 317.474.3143.

Here is the relevant part of the bill that caught my attention:
Page 2
29 Sec. 4. (a) An accident report may be inspected or copied within
30 ninety (90) days after the date of the accident to which the accident
31 report relates by the following:
32 (1) A person who satisfies the requirements in section 5 of this
33 chapter and certifies under the penalties for perjury that the
34 person is any of the following:
35 (A) A party involved in the accident.
36 (B) A legal representative of a party involved in the
37 accident.
38 (C) A licensed insurance agent of a party involved in the
39 accident.
40 (D) An insurance carrier of a person involved in the
41 accident to which the person has submitted a claim arising
42 from the accident, or a person under contract with the
Page 3
1 insurer to provide claims or underwriting information.
2 (E) A prosecuting attorney.
3 (F) A member of a news gathering organization, solely for
4 the purpose of publishing or broadcasting the news.

I just happened to come across this bill at about 11:00 p.m. Wednesday night. I didn't have much time to prepare. Actually my only prep time was while everyone else testified. I got to go last which I think helped to make a lasting impression.

My testimony was rather brief and simple. I.C. 31-17-2-8 provides the eight statutory factors that a court must consider when making an initial child custody determination or modification of that order. Section 4 provides:
The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling;
(C) any other person who may significantly affect the child’s best interests.

The 'other person' is often a subsequent spouse or live-in boyfriend/girlfriend. This person may be responsible for transporting your child to and from school or to a parenting time exchange. It may even be court-ordered that this person is to be responsible because you and the ex just can't be around each other.

I hope you are starting to see the child custody connection. You may show up to get your child for parenting time and see a smashed car in the drive. Your first thought is likely, "Was my child in that wreck?" and secondly, "Who was driving?" and finally, "Who's fault was it?" You could ask that former spouse whom you have had a very contentious relationship with and may actually be prohibited from through a protective order. Either way I am betting the truth would prove elusive. The other option is to seek the police crash report.

It could be a meaningless collision in this aspect of your child or it could be the start of a drug/alcohol related problem that a court needs to address.  The report may indicate that the other parent's spouse was broadsided by someone who ran a stop light and your child was not in the vehicle. It may, however, indicate that the driver blew a .07 BAC. Not enough to get arrested and charged but still enough to be a concern about the best interest of your child. It this is part of a pattern of sometime of reckless behaviour then it is certainly relevant to a modification of custody proceeding.

I wouldn't want any child to have to potentially be in a dangerous situation for an additional 90 days if it could be avoided.  If the media can get access to the report then so should parents who have a vested interest in the driving habits and collisions of the people in the household where their children live or spend significant time.

Members of the committee agreed as did some of the insurance industry lobbyists who were stunned at the potential impact that this bill could have on child welfare and custody litigation.

So, I have drafted the following amendment to the bill.

Page 3, line 4, insert (G) The parent, guardian or custodian of a child who resides or, who pursuant to a court order, spends parenting time in the household of a party involved in the accident.

I will be pursuing this amendment to the bill. If you care to search through the bills for any similar child custody related provision please click here for the list of pending legislation. Click here for the list of bills that InCRA is following.

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©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Wednesday, January 26, 2011

House Bill 1167 Employee Right to Parenting Time

One of the bills on my radar screen is 2011 Indiana House Bill 1167 Employee right to parenting time. The synopsis of the bill is as follows;
Requires the employer of a parent to provide parenting time to an employee parent if a court has ordered parenting time during the employee's regularly scheduled hours of employment. Provides for enforcement by the commissioner of labor.

At first sight this sounds like good legislation, certainly well-intended legislation. As we all do want to ensure that children have their right to parenting time exercised I do like efforts to accomplish this. In reading it though I observed that this is adding more to a pile of business regulations related to employees. One that includes penalty provisions.

From a business owner perspective I also look at most employee laws as an impediment to efficient business operation and how to avoid them. My thought with this bill is that if I was looking at prospective employees I would choose those who are not non-custodial parents. So, in theory, this could reduce employment opportunities for non-custodial parents.

When considering whether to support legislation I always ask myself first -- is it necessary. Thus, my immediate opposition to anti texting-while-driving proposals. We already have reckless driving laws in place.

With that view in mind -- do we already have laws, rules or court orders in place that can accomplish the intent of this bill?

The Indiana Parenting Time Guidelines [IPTG] provides for accommodating necessary adjustments to parenting time schedule.
"Whenever there is a need to adjust the established parenting schedules because of events outside the normal family routine, the parent who becomes aware of the circumstance shall notify the other parent as far in advance as possible. Both parents shall then attempt to reach a mutually acceptable adjustment to the parenting schedule.
If an adjustment results in one parent losing scheduled parenting time with the child, 'make-up' time should be exercised as soon as possible. If the parents cannot agree on 'make-up' time, the parent who lost the time shall select the 'make-up' time within one month of the missed time."

A parent who gets scheduled to work during parenting time needs to inform the other parent of the conflict and also the desired "make-up" time. I do understand that this is not the same as exercising regular parenting time but it is the system that has been in place since the guidelines were established.

The Domestic Relations Committee is currently reviewing the IPTG. I have attended all of the meetings and reviewed all the public comments. This was not expressed as an issue that I recall was a problem. However, I will review the guidelines and comments and bring this issue to the attention of Magistrate Bobay who is to be working on the section for "make-up" time.

Another approach to ensuring that parenting time occurs as planned is to start at the trial court level. When the matter of parenting time is being litigated it is important to consider the work schedule of both parties and craft a schedule that can accommodate those.

Schedules can be crafted that do consider the prospect that work schedules may be unknown. This is common in transport and some fields of the construction industry. Public safety officers, especially firemen, may also have work schedules that would often conflict with a set parenting time schedule.

I have seen orders crafted that contemplate these circumstances which may be similar to this;

Respondent shall exercise parenting time on three consecutive 24 hour periods each week including every other weekend beginning at 6:00 p.m. on the first day and ending at 6:00 p.m. on the third day. Additionally, all holidays and extended parenting time shall be per the IPTG.
Respondent shall submit desired parenting time schedule to the Petitioner no later than one week prior to the time parenting time is to occur. If Respondent's work schedule does not permit three consecutive days then Respondent shall be entitled to one 24 hour period and one 48 hour period for the week.
Petitioner and Respondent are to work together to facilitate a parenting time schedule that provides the most consistent and least disruptive schedule for the children while considering Respondent's work schedule.

I do understand that work schedules may change due to overtime, a change in employment or other factors that the parties or court may not have been aware of when the order was issued. To seek a modification in the current parenting time order a parent would need to show that there is a substantial change in at least one of the eight factors that a court must consider and that the modification would be in the best interest of the child. see IC 31-17-2-8.

The burden to demonstrate this is on the parent seeking the modification. Modification of child custody may occur only when a parent can demonstrate "modification is in the best interests of the child, and there is a substantial change in one or more factors the court may consider." see Heagy v. Kean, 864 N.E.2d 383, 388 (Ind. Ct. App. 2007).

However, the courts do presume that exercising meaningful parenting time is in the child's best interest. Fostering a child’s relationship with the noncustodial parent is an important factor bearing on the child’s best interest and, ideally, a child should have a well-founded relationship with each parent. see Johnson v. Nation, 615 N.E.2d 141, 146 (Ind. Ct. App. 1993).

In fact, these are the first words of the IPTG:
"The Indiana Parenting Time Guidelines are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child."

A work schedule that consistently interferes with and results in a child not getting to have parenting time with the NCP is ground for a modification of a parenting time order and it should be modified.

I am fully aware that this is not the easiest and quickest solution for that parent. That parent may feel the need to use an attorney to do this and bear the cost of that. I do believe that in the long run this is a better solution that placing the burden onto the employer.

Cooperation and agreement between the parents is the best method. I do not support the movement to sanitize parenting time issues. By that I mean removing opportunities for conflict and resolution or cooperation are to be removed. For better of for worse parents are parents for life.

There is incentive for the custodial parent to be accommodating and reach an agreed upon schedule. The IPTG allow the noncustodial parent to "select the 'make-up' time within one month of the missed time" if the parents don't agree. Additionally, forcing a parent into choosing to exercise parenting time or work may result in unexcused absences and loss of employment. This could very well have the consequence of lowered or no child support payments since most NCP are ordered to pay something.

There is evidence that parents who are forced into resolving conflict generally reduce conflict over time and display actions that are more aligned with the best interest of the children.

Armed with the proper knowledge and opportunities a parent who is experiencing a loss of parenting time due to work schedule conflicts should be able to get that remedied. In the process there may be an opportunity to build a better relationship with the other parent.

My discussion about support or opposition to this bill may be moot though as I do not believe it will be set for hearing. So, use it for what you can and try to get your parenting time in one of the ways I have suggested.

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©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Tuesday, January 25, 2011

Alienator Christine Porcaro is Still Lying and Abusing the Children

Just yesterday I was writing about Current Child Custody Statistics and Shared Parenting in which I made brief reference to the harms children face in the sole custody of their mothers. While doing so a filing that clearly demonstrates this was being tendered in the Madison Superior Court.

I have previously told you about the model parental alienator Christine Porcaro and how she is using and abusing the legal system to the detriment of the three children she bore with Craig Scarberry. One would hope that a little public scrutiny would help her understand the harm she is doing but apparently it has only increased her resolve to continue to do so.

Based upon this Finding in the court where Judge Newman presides; "There was evidence that the Mother/Respondent had left minor children at home alone, did not feed them breakfast and did not at time [sic] buckle them in their car seat." I made a report to Madison County DCS, as I am required to by law, that Christine Porcaro may be abusing or neglecting the children.

Before I get into what Porcaro told DCS let me give you a bit of an update from the 24 January 2011 filing on what Judge Newman feels is best for Craig Scarberry's children. Judge Newman doesn't want these children to have the benefit of two parents. Instead it is apparently his desire that a child of only four years of age have her necessary treatment for Cerebral Palsy discontinued or greatly reduced as Christine Porcaro has apparently done.

Based upon doctor recommendations the youngest child "has been receiving physical and occupational therapy" and "has been wearing braces on her legs." Additionally she has also "been receiving Botox injections for spasticity in her legs bilaterally which is medically necessary for her physical therapy to help control muscle tone."

A doctor "ordered occupational therapy" for the child who "was taken to the initial assessment at Community Rehab and Sports Center in Indianapolis which was attended to by both parents. The parents were to schedule additional appointments for [the child's] occupational therapy. Following that time Respondent/Mother was granted sole legal custody. Respondent/Mother has failed to make any occupational therapy appointments for [the child]."

The filing then goes into detail about a series of missed or canceled medical care appointments by Mother;
"On August 20, 2010 Petitioner/Father appeared at Community Hospital Pediatric Neurology for [the child's] treatment but was informed by staff that Respondent/Mother had canceled the appointment.";
"On December 14, 2010 Petitioner/Father appeared at Community Hospital Pediatric Neurology for [the child's] treatment but was informed by staff that Respondent/Mother had canceled the appointment.";
"On January 7, 2011 Petitioner/Father was en route to Community Hospital for [the child's] physical therapy but was informed by Respondent/Mother that she had canceled the appointment."; and
"On 06, 13, and 20 January 2011 when Respondent/Mother brought [the child] to Petitioner/Father for regularly scheduled parenting time [the child] was not wearing her braces nor had Respondent/Mother supplied such to Petitioner/Father for use on [the child] while in his care."

I don't know with what frequency these appointments are scheduled but it seems quite clear that Mother is neglecting the child and that Father has been available to provide the care as indicated by him either being at the appointments or en route to them when notified of the cancellations by Mother.

The filing then speaks of psychological counseling of another child. That child "had been receiving psychotherapy at the Anderson Psychiatric Clinic. The appointment record . . .indicates the following for the most recent three appointments;
08/13/10 Late Cancel. Mom has to work
09/01/10 No Show
11/13/10 No Show"

This one does indicate the frequency with this being the "most recent three appointments". Here it is clear that Mother has discontinued the care.

This is the exact type of neglect that concerns me in sole custody situations. It is clear that Porcaro initiated an intense custody battle lasting 20 hours in court. As you will becoming aware of further in this posting she believes that she is being followed and unjustly made out to be a bad person.

I believe that she is being blinded by such an intense desire to hurt the children's father and exhibit her legal control over the children that she is willing to harm the children to accomplish these desires. Clearly she is not acting in the best interest of the child.

Generally I will fault and chastise a judge as necessary for making an erroneous call. However, here I am fully willing to launch a virulent attack on Newman for his abuse of these children. There is a long line of research that clearly demonstrates that the next best thing to married parents is equal parenting time with two active and involved parents, which these children had. Sole custody with mother has been shown to be the most dangerous custody arrangement for children and Newman knew it. But BECAUSE HE IS A RELIGIOUS BIGOT who doesn't like it that Scarberry is AGNOSTIC he placed the children into this harmful custody arrangement.

So, now back to what I had been writing before getting the latest filing. Does Newman think it is best for the children to be exposed to violence? Immediately following Newman's order Porcaro asked Craig Scarberry to conduct a parenting time exchange at her home instead of a public location as was usual. Scarberry refused and instead they met at McDonald's. This time Porcaro was driving instead of her boyfriend, Brandon Galbraith, who was in the passenger seat. When Porcaro parked next to Scarberry's car and he exited Galbraith then got out and attacked Scarberry while the children watched. Porcaro did nothing to stop it.

Considering that Porcaro wanted that exchange to take place at her home and that she drove the vehicle to ensure that Galbraith would have immediate access to Scarberry it is reasonable to assume that she and Galbraith had planned the attack. Galbraith was charged in November 2010 under cause number 48H02-1101-CM-005120 for one count of battery.

Unfortunately for the children of Madison County they may continue to suffer by the actions of the deplorable Judge Newman. He feels that punishing a parent because of his open-minded attitude towards religion is more important than the best interest of the children.

To call Porcaro truthfully challenged would be an understatement. Let's face it, she's a compulsive liar who abuses their children. She lied to police while I personally witnessed it. The lies didn't end there though.

Although Galbraith was charged on 22 November 2010 with battery pursuant to I.C. 35-42-2-1 Porcaro told the DCS caseworker in December 2010 that no one had been charged with battery or anything else in relation to the McDonald's incident.

On 28 December 2010 Porcaro was interviewed by a DCS case manager. Porcaro expressed that she feels that she is being watched by Scarberry or a private investigator. She has said that the newspapers have blown it way out of proportion and that she is not the bad person she is being made out to be. She also complained that I have written a blog posting about her and that it was Craig who decided that I would make the abuse/neglect report to DCS. However, it was I who was under a legal obligation to make the report which I did within 48 hours of receiving the information. I then informed Scarberry that I made the report and that DCS would be contacting him at some point about it. It is not Scarberry who determines whether I will comply with the law.

Unknown to Scarberry [until he reads this] I will be sending a copy of the latest filing to the Madison County DCS and Prosecutor's Office. I believe it demonstrates that she is neglecting the children. It is not so much the assertions on their face that concern me, although they do, but based upon my experience and training these actions may reflect a greater level of abuse and neglect that is going on within the home behind closed doors.

Galbraith has stated that he is not a violent person although a witness at the McDonald's made a statement to police that Galbraith initiated the attack which resulted in Scarberry's hospitalization. It is this type of denial that endangers children. Is he the type of person who would use corporal punishment to excess but be in denial of it? Would he physically abuse the children "for their own good"? Those of us intimately involved in child advocacy are well-aware of the dangers that some boyfriends of the mothers pose to the children which are not biologically theirs. Galbraith, and his unwillingness to accept that he is violent, may be one such person.

I think it is appropriate to say here what I just said yesterday - The absence of a father and the introduction of a mother's boyfriend can have alarming results. Children in step-families are at increased risk for experiencing physical, emotional, and sexual abuse.[fn14] Children, especially boys, growing up in single parent mother-headed families are at 2 to 2.5 times the risk of child sexual abuse, physical abuse, emotional and mental abuse and neglect by either the mother herself or her “new friend”, the so-called “stepparent”.[fn15]

The exalted and self-righteously heavenly-blessed Judge Newman feels that this is in the children's best interest though.

This case in now before the Indiana Court of Appeals who will hopefully reinstate Scarberry's parental rights so he can make the decision to continue with his daughter's necessary medical care and protect them from an abusive parent and violent boyfriend.

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Monday, January 24, 2011

Current Child Custody Statistics and Shared Parenting

In 2007 mothers accounted for the majority of custodial parents (82.6 percent), statistically unchanged from 1994.[fn1] In the USA 40% of all children are growing up completely fatherless.[fn2] Although there has been significant research findings that more father involvement in children's lives is in their best interest it has been ignored by the courts. Much of this developed following a strong push beginning in the 1990's but through 2007 appears to have had no impact.

The Indiana Parenting Time Guidelines are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child.[fn3]

Unless special circumstances exist, preserving a healthy and ongoing relationship between children and both parents after divorce or separation is of greatest importance. Positive involvement with both parents furthers the child's emotional and social development, academic achievement, and overall adjustment. Adult children of divorce describe the loss of contact with a parent and conflict between their parents as the most painful part of divorce or parental separation.[fn4]

Father-child interaction, like mother-child interaction, has been shown to promote the positive physical, social, emotional, and mental development of children.[fn5] Children growing up under post-divorce Shared Parenting proved to be less depressed, exhibited less unadjusted behaviours, and achieved better school results than children growing up in post-divorce sole care.[fn6]

Armed with this valuable information that children, in fact, do need both parents courts have done little to assuage the lack of father involvement in children's lives for the past 15 years. In data analyzed 15 years ago judges showed a strong preference for maternal custody and tended to oppose joint physical custody.[fn7] Still, in 5 out of every 6 instances the children are in the sole custody of their mothers. Often times this occurs even though the father had been the primary care-giver, wanted to maintain significant involvement in the child's life or had not been shown to be unfit.

A majority (81.7 percent) of the 6.4 million custodial parents due child support payments in 2007 had arrangements for joint child custody or visitation privileges with the noncustodial parent. Ironically, this is a decrease from 1993, when 85.6 percent of custodial parents due support had joint custody or visitation arrangements.[fn1] The level of Shared Parenting arrangements is actually decreasing.

We know that children raised in single-parent families are more likely than children raised in 2-parent families to do poorly in school, have emotional and behavioral problems, become teenage parents, commit crimes, smoke cigarettes, abuse drugs and alcohol, and have poverty-level incomes as adults.[fn8] It would then seem best to attempt to replicate that in fractured families. To do this children should be in the care of both parents on a nearly equal basis.

Although Indiana makes no presumption favouring either parent when determining custody following a dissolution of marriage[fn9] the custody arrangements in Indiana nearly equal those of the country as a whole.

The percentage of custodial mothers who had child support agreements or awards was 59.8 percent in 1994, reaching 64.2 percent in 2004. Since that time, the percentage has declined to 56.9 percent in 2008. The proportion of custodial fathers with child support agreements or awards has historically been lower than the proportion of custodial mothers and continued to be lower in 2008 (40.4 percent).[fn1] Courts still remain reticent to order mothers to pay money to fathers on behalf of the children to assist in providing for the care and support of the children.

Mother's are therefore more likely to provide in-kind support which is done in 2/3's of cases. At least one type of non-cash support, such as gifts or coverage of expenses, was received by 57.6 percent of all custodial parents on behalf of their children. The proportion of custodial mothers receiving non-cash support (55.8 percent) was lower than that of custodial fathers (66.6 percent).[fn1]

In-kind child support has been an indicator of greater non-custodial parent involvement in the child's life. Those parents who provide actual support[fn10] are more likely to also provide the positive physical, social, emotional, and mental development of their children.

From child-research in which children themselves are questioned on their preferences it becomes clear that children themselves also most prefer Shared Parenting and care from both their parents after separation.[fn11]

Joint custody couples reported less current conflict which is important because of the concern that joint custody can be harmful by exposing children to ongoing parental conflict. In fact, it was the sole-custody parents who reported higher levels of current conflict.[fn12] Conflict was highest at middle levels of parenting time such as guideline minimums and lower when father contact was very high as in equal physical custody.[fn13]

The absence of a father and the introduction of a mother's boyfriend can have alarming results. Children in step-families are at increased risk for experiencing physical, emotional, and sexual abuse.[fn14] Children, especially boys, growing up in single parent mother-headed families are at 2 to 2.5 times the risk of child sexual abuse, physical abuse, emotional and mental abuse and neglect by either the mother herself or her “new friend”, the so-called “stepparent”.[fn15] It is hypothesized that the sexual abuse of boys by a step-father is motivated from an effort to establish male-dominance in the household. This is much the same as prison rape which is not about sex but about establishing a hierarchy among the males.

Children are in desperate need of child custody reform that will result in more Shared Parenting orders and agreements. The level of post-marriage or separation custody arrangements in which the mother is granted sole custody has remained steady at about 5 out of 6 cases over the past 15 years. At the same time incidents of child-maltreatment, abuse and neglect in these situations remains stubbornly high.

fn1 - US Census Bureau - Custodial Mothers and Fathers and Their Child Support: 2007, Timothy S Grall, 11/2009.
fn2 - Newsweek figures from January 2006.
fn3 - Indiana Parenting Time Guidelines - Preamble, As amended Sep. 10, 2007, effective Jan. 1, 2008.
fn4 - Planning for Parenting Time: Arizona's Guide for Parents Living Apart - Message to Parents, 2009.
fn5 - Responsible Father and Healthy Families Act of 2009 - Finding 3.
fn6 - From a Harvard study on 517 separation families over a period of 4 years (Buchanan, MacCoby, Dornbusch, 1996.
fn7 - Stamps, Kunen, & Rock-Facheux, 1997.
fn8 - Responsible Father and Healthy Families Act of 2009 - Finding 11.
fn9 - IC 31-17-2-8 The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent.
fn10 - IC 35-46-1-1(a) defines "support" as food, clothing, shelter and medical care.
fn11 - Fabricius, 2003.
fn12 - Gunnoe & Braver, 2001.
fn13 - King and Heard, 1999.
fn14 - Daly, M., & Wilson, M., 1985. Child abuse and other risks of not living with both parents. Ethnology and Socio-Biology, 6, 197-210.
fn15 - Holmes, 2007; AMK, 1999, 2000, 2001.

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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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Sunday, January 23, 2011

Indiana Senate Bil 564 Domestic Violence Classes for NCP

Senate Bill 564 was read first time and referred to the Senate Committee on Judiciary on January 20, 2011. The synopsis of this bill is as follows;
"Provides that a county domestic violence fatality review team shall review cases in which a person who committed suicide was a victim of an act of domestic violence. Permits a court to require a noncustodial parent who has been convicted of certain crimes of domestic violence to require the parent to attend a batterer's intervention program certified by the Indiana coalition against domestic violence as a condition of receiving unsupervised visitation time. Adds additional crimes to the definition of a "crime involving domestic or family violence", and makes a person convicted of a Class D felony that is a crime involving domestic or family violence ineligible for alternative misdemeanor sentencing. Requires that a batterer's intervention program to which a court may order a person to attend must be certified by the Indiana coalition against domestic violence."

This bill is sponsored by Senators Vanessa Becker, Joe Zakas and John Broden.
I have two concerns about this bill. First, it specifically names the Indiana Coalition Against Domestic Violence [ICADV], a private non-profit corporation, as the deciding authority for the batterer's intervention program.

If this organization changed names or ceased to exist at some point in the future the law would effectively become a nullity. Also, although adult victims of Domestic Violence [DV] or Intimate Partner Violence [IPV] are nearly equally represented by both genders this organization is directed entirely by women and states "We believe patriarchal values and attitudes support and perpetuate violence" while at the same time claiming "ICADV is committed to the elimination of domestic violence".

Their failure to acknowledge nearly half of the crime victims and implement strategies targeting all perpetrators will not achieve the stated desired goal. I believe this failure in policy and pervasive public attitude that men are the perpetrators and not victims of DV creates a power imbalance wherein men may feel they have no institutional support. This could actually induce further acts of DV by perpetrators who feel they have no power outside of physical aggression.

It only took until the next day for an opinion of a panel of the Indiana Court of Appeals involving DV to be issued. In the unpublished opinion of Paternity of B.W., D.W. v T.P. (In Ct App 2011) Father appealed the modification of joint legal and physical custody of the parties child in favour of Mother.

Father obtained an ex parte civil order for protection against Mother on August 21, 2007. No hearing was held on the protective order, but the evidence presented at a later hearing established that Father sought the protective order after an altercation that occurred at his apartment when Mother came to pick up a child support check.

During the hearing Mother denied attacking Father. Mother testified that she did not call the police because she did not want Father to get into trouble. Father, however, did contact the police and ultimately obtained a protective order, which Mother did not contest.

Mother was also charged with criminal mischief and battery arising out of the same incident. She eventually pleaded guilty to criminal mischief, and the battery charge was dismissed thereby avoiding a DV conviction and the statistical support that demonstrates that women do commit DV crimes. Prosecutors often do not charge women with DV crimes because of the public perception that women are victims only or that the man deserved it which makes obtaining a conviction more difficult. This is why the reporting and conviction rates cannot be relied upon to accurately measure acts of DV.

If, as she testified, that she did not attack Father and then admitted to the elements of criminal mischief she may have technically avoided conflicting testimony but it becomes clear that she did commit an act of DV.

So, it is established that women do commit acts of DV. I do not see the connection between "patriarchal values and attitudes" that caused this woman to physically attack their child's father. She took property belonging to him, he demanded its returned and her response was to physically attack him. I simply do not see demanding the return of stolen property as a gender issue and certainly not "patriarchal values and attitudes".

I am extremely reticent to support any legislation that will allow a private organization to determine state policy. Especially when that organization directs fault for all acts of a particular crime against a single gender. The gender of which none of their directors represents.

Instead, I would suggest that the language be changed from "certified by the Indiana coalition against domestic violence" to "approved by the court" and leave it to the discretion of the court.

My second concern is purely a technical issue related to this section of the bill.
13 FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 1. (a) A victim shall
14 provide to and maintain with the agency that is responsible for
15 providing notice to the victim a request for notice on a form that is
16 provided by that agency. The form must include a telephone number,
17 electronic mail address, and mailing address for the victim. If the
18 victim fails to keep the victim's telephone number and address current,
19 the agency may withdraw the victim's request for notice.
20 (b) A victim may restore a request for notice of subsequent
21 proceedings by filing, on a request form provided by an agency, the
22 victim's current telephone number electronic mail address, and
23 mailing address.

For continuity I suggest adding "contact information including," after 'include' on line 16 then striking "telephone number and address" from line 18 and inserting "contact information" in its place. The same could be done for lines 22-23.

I do believe the intent of the legislation is well-founded. However, allowing a private entity to dictate state policy is a very disturbing prospect. I would no more want the Indiana Custodial Rights Advocates being the authoritative body to certify the Indiana Parenting Time Guidelines or the Indiana Libertarian Party being the authoritative body to certify the Indiana procedures on election advertising.

My son and I were both victims of DV while I was married. Many times I was threatened with a gun and was helpless to protect my son or myself. She would point the gun at our son and threaten to kill him as a means of ensuring that I would succumb to her demands, using my love for my son as a means to force me to act against my own will.

My efforts at getting police assistance were fruitless. I will never forget the words from the officer's mouth when I asked if there was anyone who could help us. I was told, "Come on, you're a man" in a tone that I perceived as though I should take care of it myself and not let a woman push me around.

I am always in favour of any efforts which will help reduce or eliminate all acts of DV but not ones that seek to create a further gender power imbalance. I don't believe this legislation, as written, will reduce DV and may, because of the clear bias against fathers, increase acts of DV.

Please feel free to contact me if you have any comments to make about this legislation or would like to testify if it gets set for hearing.

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Saturday, January 22, 2011

When it's time to Appeal, Appeal!

When a court issues an order there is usually someone who doesn't like it. This is because the charge of the court is generally to decide on conflicts and declare a winner and loser. The losing party often feels that he or she was unjustly sanctioned or denied the requested relief. This shouldn't be surprising though, it is those very feelings that often led to court action in the beginning.

I recently came across the unpublished opinion in Ables v Ables [In Ct App 2011] which clearly proscribes the process one must take when seeking to correct an order he or she believes was in error. It also provides another glowing example of why having a qualified attorney is essential.

In Ables the father was ordered to pay $190 per week in child support retroactive to one week prior to the mother's petition to modify. Father did not timely file a Notice of Appeal although it is clearly established in case law that an order to pay child support cannot be modified retroactively preceding the date of a petition to modify. It was clear error for the court to do so and Father should have filed a Motion to Correct Error pursuant to Indiana Trial Rule 59.

Instead Father filed a Motion for Relief from Judgment pursuant to Indiana Trial Rule 60(B). Father argued that a relief from judgment under Trial Rule 60(B) should be granted because the trial court had improperly imputed to him a higher wage than he earned, and “there are things that were never brought up at the hearing that if they had been, that the outcome might have been different.”

Father has completely missed the point of having a hearing which is an opportunity to be heard and present evidence. If he didn't do so then his argument is waived. There is a savings clause in Rule 60(B) though. The relevant parts of Rule 60(B) are;

(1) mistake, surprise, or excusable neglect;
(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for those reasons: The motion must be filed within one year.

The Indiana Court of Appeals has held;
Any matter which was known to or discoverable by a party within the period when a timely motion to correct errors could have been filed must be raised in a motion to correct errors under T.R. 59 and made the subject of a proper and timely appeal if appellate review is to be had. Any such issue[,] which was raised by, or could have been raised by a timely motion to correct errors and a timely direct appeal may not be the subject of a motion for relief from judgment under T.R. 60.
Mathis v. Morehouse, 433 N.E.2d 814, 816 (Ind. Ct. App. 1982), overruled on other grounds by Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind. 1983).

In Ables the matters about which Father complained—the amount of the support ordered, the evidentiary basis for such order and its retroactive application were all known to him at the time he filed his T.R.60(B) Motion. They could and should have been raised in a motion to correct error. He did not do so, and the issues are waived. The trial court did not abuse its discretion in denying his request for relief from judgment.

To get around this Father tried to argue that the Trial Rule 60(B) motion was actually an incorrectly labeled Trial Rule 59 motion. The panel was not impressed. To the contrary, Father's counsel never referenced Indiana Trial Rule 59, never moved to amend the motion for relief from judgment to invoke Trial Rule 59, and specifically argued that the Support Order should be set aside “due to (B)(1) mistake, surprise, or excusable neglect.”

We note that generally a trial court has wide discretion to correct errors and we will reverse only for an abuse of that discretion. Paulsen v. Malone, 880 N.E.2d 312, 313 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial court‟s action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom, or is based on impermissible reasons or considerations. Id.
Trial Rule 53.3(A) provides:
In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.
This rule is self-activating upon the passage of the thirty days. Demmond v. Demmond, 706 N.E.2d 566 (Ind. Ct. App. 1999), trans. denied. Once the motion to correct error is deemed denied, the trial court‟s power to rule on the motion is extinguished. Id. (citing Rose v. Denman, 676 N.E.2d 777, 781 (Ind. Ct. App. 1997)). Any subsequent ruling is therefore a nullity. Id.

Ables was represented by an attorney at both the trial court level and during the appeal.

I will explain concisely here what I have said so often.
1) Get competent legal counsel or do it yourself.
2) Present evidence at trial. If you do not then you may not later argue a denial of due process because you chose not to present the evidence.
3) If the court makes a final ruling that is in error then make a Motion to Correct Error pursuant to Indiana Trial Rule 59. For interlocutory orders you must ask the court does to certify the order for appeal. This is a requirement before seeking appellate review.
4) If new evidence, proof of a mistake, or that the judgment was procured through fraud is discovered, then file a Motion to Set Aside Judgment pursuant to Indiana Trial Rule 60(B).
5) If you have a final judgment that you feel you have a substantial belief is the result of an abuse of discretion or is an error of law then file your Notice of Appeal within 30 days of receiving the order.

Law is about process. Regardless of how correct your position may be if you do not follow the process then don't expect to get the relief you deserve. When it is time to get an attorney, get a competent one. When it is time to present evidence, present evidence. When it is time to have an error corrected, file a Motion to Correct Error. When it is time to have a judgment set aside, file a Motion to Set Aside Judgment. Finally, when it is time to appeal, appeal!!!

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Friday, January 21, 2011

Indiana House Bill 1119 Joint Legal Custody

Representative Phyllis Pond has introduced House Bill 1119 to the 117th session of the Indiana General Assembly. Here is the synopsis of the bill:
Establishes a rebuttable presumption that an award of joint legal custody is in the best interest of a child. Requires a court, if a party seeks to rebut the presumption, to consider: (1) the fitness and suitability of each of the persons awarded joint legal custody; (2) the ability of the parents to communicate and advance the child's welfare; and (3) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody. Repeals a provision containing language that is relocated within the Indiana Code. Repeals a provision providing that a custodial parent may determine the child's upbringing.

Joint legal custody means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care and religious training. [see I.C. 31-9-2-67] This is maintaining the standard enjoyed by married parents which has served children well.

There is a common misconception that joint legal custody is only appropriate when the parents agree on the child's education, health care and religious training. It is not so simple as that. The best interest of the child standard is to be applied when determining whether joint legal custody is appropriate.

The presumption of joint legal custody does not require that a court order joint legal custody to the parents. To help provide an understanding I will make a comparison to criminal law.

We should all be familiar with the presumption of innocence. That doesn't mean that a judge or jury must find the defendant not guilty, it is just to be assumed from the start unless evidence is presented that confirms guilt beyond a reasonable doubt.

There is also the assignment of felony cases to jury trial. This is an opt-out provision. The defendant may choose not to have a jury trial but is not required to do anything to request a jury trial. Similarly, a parent is not required to make a showing that it is in the best interest of the child that the parents share joint legal custody. Instead, a parent who does not want joint legal custody must make a showing why it is not in the best interest of the child. A judge may also make the decision sua sponte, without being requested to do so.

Educational issues cover a wide range. Some parents have a preference for their child to achieve mastery of grades in school while others encourage and promote full comprehension and understanding of a subject matter. The difference is training versus learning.

I flunked plenty of classes in high school. In senior year English I had an overall grade of less than 20% but did have the highest score on the final exam. This was because I placed a higher priority on understanding the concept rather than demonstrating an ability to complete homework assignments. In short I spent my time taking in information rather than writing it down for someone else. I chose to fulfill my needs.

I tell my son that I could care less about his grades. I want him to study and understand those subjects which interest him but to never place schooling above his health and well-being. Therein lies a conflict on education between his mother and I. But it is not so great as whether I want him placed in a public school or to receive my personal one-on-one educational experience that we had agreed to before he was born. That is a situation where a definite decision must be made and allowing one parent to dedicate his time and efforts to the child while the other dumps him off in a school could have adverse results.

A very thought provoking educational case is Higginbotham v Higginbotham [In Ct App 2004] where the parties joint legal custody was terminated as was the child's midweek parenting time with Father. Father sought appellate review. The judgment of the trial court was upheld.

The parties had agreed to continue joint legal custody and such was recommended to the court in a custody evaluation that was performed by Dr. John C. Ehrmann, Jr., who also recommended the appointment of a parenting time coordinator.

At hearing Mother raised concerns about child returning from her Wednesday night visitations with Father with homework that is incomplete or that needs to be redone, and she does not get assistance at Father’s home with her homework. The child’s most recent report card 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.

The trial court gave full physical and legal custody of the child to Mother, eliminating the child's midweek parenting time and conditioning its resumption upon the child showing a “vast improvement in her scholastics.” Apparently Judge Matthew G. Hanson felt that Father had such a profound impact on the child's educational demonstration through four weekly hours that her ability to pass ISTEP or her classes hinged solely upon Wednesday night homework assignments. A claim I find spurious at best.

Most disturbing about this ruling though is that it appears to be punishing the child for her failing grades by denying to her time with her father. In its ruling though the court found that that the parties agreement and Dr Ehrmann's recommendation aside it was in the child's best interest to be in the sole custody of Mother based on the child's educational performance. Something about that just strikes me as illogical though.

I think of a corollary to malnutrition. If the child was failing to meet certain health standards and appeared to be suffering from malnutrition I would look more to the parent who had the child the vast majority of the time versus the one with only four hours during the weekday week.

Next is health care. Parents may disagree as to when a child should be taken to a doctor for non-emergencies. This could be level of fever, cuts and scrapes or degree of the common seasonal sicknesses. I am not one to medicate at first opportunity while my son's mother is. I believe fever serves a purpose and unless it exceeds 103-104 degrees area should not be medicated. These are differences that we will not agree on. I am never ill and taking a day off because of it. My body easily combats infectious germs on its own. On the opposite spectrum is her drug dependency and regular and expected days off for her and my son every winter when they are sick.

An area of contention that would require a clear demarcation is on issues such as vaccinations. This is not a temporary situation. This is injecting a child with a potentially disabling or deadly toxin in hopes of avoiding the potential for a disabling or deadly infection. Parents have strong convictions on this issue. If there are enough disagreements such as this then joint legal custody would not be appropriate.

There is also the health care issue of spiritual healing versus commercial medicine. Courts have intervened in both dissolution case and CHINS cases where a parent or parents may have chosen spiritual healing for a child with life threatening illnesses.

It would be appropriate for a court to issue a sole custody order where the parents disagree so much as to the child's health care where one may be refusing to facilitate treatments for a debilitating disease.

Finally, there is Religion. The case of Finnerty v Clutter [In Ct App 2009] is most instructive and shows how progressive our Court of Appeals has been in just five years. Both parents shared joint legal custody but an issue arose concerning the religious training of the children. Mother was the primary physical custodian. Father sought to modify the custody order to have additional parenting time.

In Finnerty Mother appealed asking the panel to determine whether the trial court abused its discretion by failing to order Father to take the children to church on Sunday during his parenting time or alternatively, by failing to adjust Father’s parenting time so that Mother could take the children to church.

The parties had two children and during their marriage Mother and Father began attending a Catholic church with the children. Following the dissolution, Mother continued to attend a Catholic church, enrolled one child in a Catholic elementary school, and took the other to Wednesday evening religious education classes. She also wanted to take the children to Sunday evening mass during Father's parenting time.

Mother argued, through legal counsel, that since she was the primary physical custodian that she was entitled to make the legal decisions for the children including their religious training. However, “Physical custody and legal custody are not equivalent.” Reno v. Haler, 743 N.E.2d 1139, 1141 (Ind. Ct. App. 2001). Thus, Mother's argument fails. It is then left to the panel to determine whether the trial court abused it's discretion in not ordering Father to take the children to church or modifying parenting time to allow her to do so.

The panel concluded that since "Father and Mother’s shared authority and responsibility for decisions regarding the children’s religious training, we cannot say that the trial court abused its discretion here."

What is important to take from this case is that the parents share authority and responsibility not that they agree, nor that they follow the same practices. There is currently a similar case before a different panel of the Court of Appeals.

In Scarberry v Scarberry the issue involves whether the trial court was in error by dissolving the parents joint legal custody agreement because "Father was agnostic". Commissioner George C Pancol found that because Mother continued to profess that she is Christian while Father has changed his practices to being agnostic that joint legal custody was not in the best interest of the children. I previously wrote about how Pancol Misstates the Law and an Examination of the Order in Scarberry v Scarberry  which demonstrate the appropriate standard for joint legal custody.

More recently in the Scarberry case the Mother, Christine Porcaro, has discontinued medical treatment of Cerebral Palsy for their youngest child. Although the doctors maintain that it is a clear need and Father, Craig Scarberry, wants to continue the treatments he is no longer able to legally do so.

A presumption does not require that the parties be awarded or forever maintain joint legal custody. It does, however, require a judge to find why joint legal custody is not in the best interest of the child if sole custody is awarded.

Consider the value of a second opinion, having two parents available to make these decisions, and the harm that can come from a parent who gains sole custody and then decides to hurt the other parent by harming the child. It then makes sense that a presumption of joint legal custody is in the best interest of children and should be law.
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©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.