Monday, April 14, 2014

How to win an Appeal of an Indiana Child Custody or Parenting Time Order

While every child custody and parenting time case is unique there are some universal truisms that apply to all. In this posting I am going to provide some thoughts on some of the broader considerations that must be made throughout the child custody litigation process and, more particularly, the appeals process. While I practice only with Indiana cases what I have to say here should be of general applicability across all jurisdictions. While I may make reference to Indiana case, rules, or law these citations should have corresponding counterparts in all states.

About two weeks ago I presented Indiana Appellate Attorney [Russell B. Cate] Incompetence can ruin your child custody case in which I used Mr. Cate as an example of the type of incompetence that parents can face when facilitating the use of an attorney. In that posting I cautioned parents that “When you employ an attorney to represent you then you have entrusted that attorney with the decision making authority that you relinquished.” If you have not read it already I encourage you to do so now.

Appeals and attorneys have been a frequent topic for me recently which shows no sign of waning. This year my efforts have been devoted mostly to working with parents appealing rulings in their cases while also reading a considerable amount of additional case law. Along with child custody and parenting time appeals I also specialize in high conflict parenting. I thoroughly enjoy the challenge of both although they are mentally taxing. The necessary mental acuity and endurance which is essential to confidently navigating the nuances of these facets of the child custody arena may be just what leads to the egregious shortcomings exhibited by some attorneys.

Analogous to the child custody arena I offer automobile maintenance. Visiting one of those quick-lube places or the dealership may be fine for regular service and ordinary maintenance. If you are experiencing unusual problems with performance such as slippage then you may want to avail yourself of the services of a shop particular to transmissions. This is considered due course in that situation and while your regular mechanic may be familiar with your car and may be quite competent in all previous interactions with said vehicle a transmission specialist dose not this make. Likewise, those years of apt service in the broad maintenance field or the more specialized transmission rebuilding does not qualify one to be a Formula 1 chief mechanic. Such are the relations between a general practice family law attorney, a high conflict parenting time coordinator attorney and a child custody appellate attorney.

Yet, while most people will readily accept and make the necessary distinctions between various specialties in the automotive mechanic field they fail to do so when it comes to child custody attorneys. This could be the most costly mistake as I intended to demonstrate today.

The first thought that I want to impart upon your consciousness is that any counsel you retain in your child custody case, be it an advisor such as myself, a therapist, or an attorney to represent you, is being entrusted with the outcome of your parent-child relationship. I want you to think of it with that level of gravity. While in a practical sense, neither I nor any other person can dictate the terms of your relationship with your child, it is the information that we present to you which may guide your actions and subsequently affect the relationship.

One of Indiana's leading family law judges once explained to me his perspective – I don't live with the child, I haven't known him for years, I am not the one who loves him. The parents do and they can make the best decision for their child -- on why he doesn't want to make child custody and parenting time decisions. It is much the same for attorneys although a few do take a personal interest. Just this past weekend though I received a divorce petition from an attorney who didn't even state the children's correct age nor other substantive issues related to the children. If this attorney isn't interested enough in these children to get these simple details correct imagine her level of commitment to the fine details of the factors related to a child custody decision. My most recent posting Is the relationship with your child worth following the Indiana Rules of Appellate Procedure? detailed some of the recent findings by the Indiana Court of Appeals in which the rules were not followed. Examples there included briefs of attorneys and pro se litigants. There was also Ney v Ney this month in which both parties were pro se.

This is the first point that I want to emphasize: A parent is more invested in the outcome of the proceedings than an attorney. The second is that if you choose to proceed using an attorney, choose an attorney or other advisor who is experienced and effective in the particular phase of the litigation in which you are using his or her services.

This is something to which I have previously addressed in Your attorney is YOU or How to select an attorney. So herein lies the conundrum: How does a parent ensure that he or she is getting effective assistance of counsel? In Selecting an Attorney who will Advocate for you I included that a parent should do some investigative research and ask questions of the prospective attorney. I also supply a prospective attorney questionnaire that should be used as a minimum basis of inquiry. One must also follow instinct. If the questions are answered satisfactorily then next is to intuit competency. While it is unusual for an attorney to be disciplined by the Disciplinary Commission of the Indiana Supreme Court their website does provide a means by which one can search the record of an attorney. Attorney efficacy is rarely a disciplinary matter.

Ineffective assistance of counsel caselaw in Indiana generally is centered around criminal cases. In civil litigation it can also be the basis for the reversal of a ruling. However, in criminal cases there are only two parties to the case, the state and the defendant. There an ineffective assistance of counsel claim is easily remedied - usually a new trial which may result in the defendant being set free or receiving a lighter sentence. Child custody cases involve a more vulnerable third party. It is the policy of the State of Indiana to not disturb child custody rulings[fn1]. This includes those in which the rights of a party may have been violated and if not for a due process violation a different disposition of the children would have occurred. In a particular case decided by the Indiana Supreme Court last year - In re adoption of CBM and CRM – the Justices found that the mother's termination of parental rights was the result of a due process violation and reversed the termination of her parental rights. In this case the court cannot now “unscramble the egg” because the children were placed with adoptive parents in the year 2008. While the termination ruling was under appeal the prudent action for the attorney to take would have been to file a motion to stay the judgment.

It is not always an appeal where attorneys can sacrifice a parent-child relationship or even strategy in court. In How to lose parenting time – Have an attorney that doesn't know Indiana child custody law I examined an appeal in which the parent claimed that the attorney never mentioned that the IPTG provided that extended summer parenting time was to be split in half rather than only two weeks for the non-custodial parent.

This brings me back to Mr. Cate and my recent posting about incompetent attorneys. In that I wrote, “The crux of Cate's support for his motion is that the petitioner failed to file an Appearance with the Indiana Court of Appeals pursuant to Rule 3.1 of the Indiana Rules of Trial Procedure.” There I supplied his motion which you may read. While the trial court is not divested of jurisdiction until the Clerk of the Courts has compiled the Clerk's Record and noted such in the CCS[fn2] it is the Appellate Rules that control, not the Indiana Rules of Trial Procedure. Mr. Cate does not understand this simple appellate concept. Does one need inquire further whether to use Mr. Cate to perfect an appeal? I contend that the answer is NO! The proof is here


In his Motion to Dismiss based upon his perception that the Appellant failed to file a necessary Appearance and was precluded from filing her Notice of Appeal pro se as she was represented by counsel at the time, he made the following claims;
1] Petitioner was represented by counsel at the time she filed her notice of appeal and Petitioner is represented by counsel as of the date of this petition.
2] In the event that the court declines to strike Petitioner's pleading, Respondent would argue in the alternative that Petitioner has failed to comply with the Indiana Rules of Trial Procedure.
3] Petitioner has failed to comply with the Indiana Rule of Trial Procedure 3.1 which states that “if not represented by an attorney” the initiating party “shall file with the clerk of the court an appearance form” that sets forth the information contained within the rule.” The Petitioner has neglected to do so. Indiana Rules Civil Procedure 3.1[fn3] (emphasis added)
4] It has long been held in the state of Indiana that “pro se litigants are held to the same standard as are licensed lawyers” Hess v Hess 679 N.E.2d 153, 155 (Ind. Ct. App. 1997)
5] Respondent has incurred attorney fees in the amount of $500 as a result of having to respond to Petitioner's improper filing and requests the Court order Petitioner to reimburse him for the same within thirty days.

Cate first complains that the “Petitioner”[fn4] was represented by counsel at the time she filed her Notice of Appeal. The glaring omission is that she was not represented by counsel in the appeal which is initiated by the filing of a Notice of Appeal.[fn5] That although the notice is provided to the trial court and parties of record in the trial court it is properly served upon the Clerk of the Indiana Court of Appeals.[fn6]

Cate's confusion is expounded in his next claim which is that Petitioner's Notice of Appeal should be stricken because she was purportedly required to file an appearance[fn7] “if not represented by an attorney.” But which is it? Cate had just complained that she was represented and, at the time of his filing, is represented by an attorney but claims that she violated a rule applicable to parties “not represented by an attorney.”

Cate's complete ineptness in regards to appeals of Indiana child custody and parenting time matters culminates in his ignorance of the applicable rules. Cate would bring the rules for checkers to a game of chess and then throw a fit when his pawn jumps three of your players and you don't “King” him. If it wasn't for Cate's absolute disregard for the outcomes of children involved here this would be comical. The more I ruminate on this matter the more irritated I become that a person like this is allowed to practice law.

After reading Cate's petition, the court's response, and my analysis – if he may be so fortunate as to find it – then Respondent Erik Akiwumi should be wondering, first; Is this the type of frivolous filing the standard to which pro se litigants are to be held? Secondly; Was I defrauded out of $500 by an incompetent and unscrupulous attorney? and finally; Can anyone refer me to a good appellate attorney?

My other overarching thought that I want to impart upon you is not to allow yourself to be confused by title and ability. I have previously raised this thought in the realm of child sexual exploitation and abuse. My ire is always raised when I hear that “you can go online and find out where the child molesters in your neighborhood live” I always have to respond, “NO YOU CAN'T!” The title imposed upon a person by a court as directed by entry of conviction for an offense does not make it so. Not only have many “rapists” been set free following their convictions at jury trial when later DNA evidence exculpated them but hordes of “convicts” have plead guilty to offenses which they did not commit just to avoid a possible lengthy prison term. Likewise, the lack of a conviction does not reflect the truth of the matter. Particularly in child molestations it is usually the clumsy and obvious that get convicted. Those who are most adept and practicing their abuse of children and escaping detection are not convicted. This is evident in the high rate of female perpetrated sexual abuse[fn8] but the low rate of conviction.

Similarly, the relationships between many parents and their children have been fractured and, in some cases, the children have been harmed because of this prejudicial view. These parents are not guilty of a crime from which they can later be exculpated and later restore their character. Instead they are guilty of prejudice. There are numerous ways in which the hazard of prejudice manifests itself.

Clear your mind of any negative association that you may apply to the term prejudice. The word itself carries a strictly neutral value although it connotes a negative bias. In law we see this in prejudicial where the term is applied to a harm caused by an act or omission. Now I want you to apply prejudice to the presentation of your child custody case.

When working with parents to reconcile conflict in their lives, build their character and confidence, and improve their interpersonal relationships I expound the manners in which they have been defeating themselves. Prejudice is one.

Take the prejudicial statement, “I need an attorney.” By analyzing some corollary statements I will expose the underlying meaning of that phrase. A need represents a deficiency. Thus, “I am deficient in attorney.” Awkward but conveys the same intent. What does “attorney” represent in this phrase? Think in a non prejudicial manner. I will use the words of the Indiana Court of Appeals – trained legal counsel[fn9]. Now the sentence becomes “I am deficient in trained legal counsel.” Ponder that statement for a moment. You should realize that it is innocuous, carries no bias but is just a statement of fact. Yet, think of the connotation of “I need an attorney.” Does that statement induce thoughts like “I can't do this without help” or “I don't know how to do this court stuff” which reflect a degree of your incapacity? That is your prejudice showing. Without applying facts you have already presupposed that an attorney will more competently maneuver your case than you will.

Mr. Cate, Mr. Little, and Mr. Deenik – all trained legal counsel – have aptly demonstrated that there is no direct link between being “trained legal counsel” and competence. Their arguments on appeal have been shown to be without merit, denied, or resulted in the dismissal of the appeal.

I didn't earn the credits to graduate high school, I haven't been trained in any college degree, and I haven't passed a bar exam nor is it likely that I could if I took it today. I have never had a client have an issue waiver or appeal dismissed for lack of cogent argument or procedural compliance. I have had the ACLU of Indiana credit me with providing the legal basis that resulted in the reunification of children with their parent, a top appellate attorney recommend me to a client of his, and numerous attorneys use my legal strategies including one in which a jury acquitted the defendant although the attorney was insistent that the defendant “will lose if you go to trial.” In addition to my lack of credentials I have observed another distinction between the attorneys and I - I have met the children in each of these cases and they are the ones I am thinking of and care about when I am helping their parents.

In summary, keep in mind that you and your child have the most at stake in your appeal, competence of an attorney in trial court is not commensurate with appellate competence, and you may be able to perfect an appeal better than “trained legal counsel.”

1] We apply this stricter standard to petitions to modify custody agreements because permanence and stability are considered best for the child’s welfare and happiness. Lamb v. Wenning, 600 N.E.2d 96, 97 (Ind. 1992).
2] Rule 8. Acquisition Of Jurisdiction The Court on Appeal acquires jurisdiction on the date the Notice of Completion of Clerk's Record is noted in the Chronological Case Summary. Before that date, the Court on Appeal may, whenever necessary, exercise limited jurisdiction in aid of its appellate jurisdiction, such as motions under Rules 18 and 39.
3] While Indiana does have Rules of Criminal Procedure and the Rules of Trial Procedure there are no Indiana Rules Civil Procedure.
4] Although Cate uses the term “petitioner” throughout his petition, the party initiating an appeal is correctly referred to as the “appellant.” see Indiana Rule of Appellate Procedure 9(E) “Payment of Filing Fee. The appellant shall pay to the Clerk the filing fee of $250.”
5] Rule 9(A)(1). Initiation Of The Appeal - Procedure for Filing the Notice of Appeal with the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court. Appeals from Final Judgments. A party initiates an appeal by filing a Notice of Appeal with the Clerk (as defined in Rule 2(D)) within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary. However, if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court's ruling on such motion is noted in the Chronological Case Summary or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first.
6] Rule 24(A). Service Of Documents - Required Service.
(1) Notice of Appeal. A party filing a Notice of Appeal shall contemporaneously serve a copy upon:
(a) all parties of record in the trial court or Administrative Agency;
(b) the clerk of the trial court or Administrative Agency;
(c) the court reporter;
(d) any persons identified in Rule 14.1, if applicable;
(e) the Attorney General in all Criminal Appeals and any appeals from a final judgment declaring a state statute unconstitutional in whole or in part;
(f) the judge of the trial court or hearing officer of an Administrative Agency before whom the case was heard; and,
(g) any other persons required by statute to be served.
7] Rule 16(A). Appearances - Initiating Parties. The filing of a Notice of Appeal pursuant to Rule 9 or Notice of Expedited Appeal pursuant to Rule 14.1 satisfies the requirement to file an appearance.
8] While women account for 20% of sexual abuse of children they are estimated to be the perpetrator in 50% of the cases when children who are not auditory – those who can't “tell” -- are targeted.
9] A pro se litigant “cannot take refuge in the sanctuary of his amateur status.” Peters v. Perry, 873 N.E.2d 676, 677 (Ind. Ct. App. 2007). “As we have noted many times before, a litigant who chooses to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of his action.” Id. at 678.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.


Alex said...

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Unknown said...

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