Friday, May 9, 2014

Parental Alienation and Judges who get it by modifying Indiana child custody orders

By specializing in high conflict parenting case and Indiana child custody appeals I have invited into my life the stories of and experiences with high conflict parents who often engage in parental alienation. The emotionally taxing anecdotes and observations of abuse of children by these parents is only ameliorated through knowing that my assistance may mitigate that harm. It is an exhaustive undertaking to challenge the order or ruling of a trial court that unbinds the hands of an abusive parent and gags the mouth of the targeted parent. It is refreshing when a court gets it and the Indiana Court of Appeals upholds the trial court judge who appears pansophical. Such was the case when The Honorable Steven King, Sr. of the Laporte Superior Court made the following finding and conclusion in Paternity of J.T. and I.T.;
It has been established by a preponderance of the evidence that there has been a substantial change in the interrelationship of [Mother] vis-à-vis [Father], to wit: she so despises and distrusts him that she has exhausted her limited coping skills and, as a result, acted in complete defiance of the existing parenting time orders over an extended period of time. Her repetitive failure to permit visitation is the product of a mindset not likely to change, given her demeanor, testimony and past failure to honor her assurances – in the face of prior contempt petitions – that she would abide by the parenting time order.
As a consequence it is in the best interests of the three children that the existing custody order be modified; otherwise, the children will be denied a meaningful relationship with their father.

Here it appears that Judge King has complied with his mandate as the abitrator of a child custody dispute. “A trial court has a duty to determine whether a custody arrangement—legal or physical—is in the best interests of the children before it.”[fn1] However, it is a greater challenge when children are subjected to the vile onslaught of two parents who mutually engage in an abusive vitriol in the presence of the children. Such was so in a case where the majority of the panel on appeal stated;
“Awarding sole physical custody to one party or the other will do nothing to solve the underlying problem—the venomous relationship between Jane and James and the way in which they convey their disgust for the other to their children. No court can be present behind closed doors to act as a referee when Jane makes a biting comment about James in front of the children, and vice versa. That, by necessity, is left to the consciences of the parents involved, and it is clear that Jane and James have cavernous spaces on top of their shoulders where Jiminy Cricket should be perched.”[fn2]

The difficulty that the judiciary faces when confronted with these parents who exhibit “obstreperous, disrespectful, and distasteful behavior” is solidified in the dissent;
“Every day in our State, trial courts engage in the fact-finding process of determining which of two parents—oftentimes, both parents who have behaved poorly—is the better choice to serve as a primary physical custodian. All too often, this involves determining who between two parents is the lesser of two evils—which parent is least likely to poison the children and alienate them from their other parent. The majority’s opinion permits sidestepping this process and allows the trial court to “split the baby.” I would reverse on this issue and remand to the trial court with instructions that it award sole legal and physical custody of the children either to James or Jane and grant the other parent parenting time scheduled in a manner that is conducive to the best interests of the children.[fn3]

Recently a client of mine who is engaged in a dissolution action was contacted by a stranger that had his children. Unknown to Father this stranger had been providing supervision and care to the children during much of Mother's parenting time. This person was going to call CPS to take custody of the children but decided to find Father instead as doubts were arising as to whether Mother was actually escaping an “abusive relationship.” Here is some of the allegation from the affidavit provided by this stranger which was attached to the emergency motion for custody;
“[Mother] considered giving [Children] full time to [Father] but decided to first drive them to [me] for care. . . . It is our opinion that [Mother] exhibits many anti-social (sociopathic?) behaviors and can be a very self-centered individual that uses people (including her own children) for her benefit. She appears to be a “taker” that gives little to nothing in return. It is our hope that the children get settled in a secure and loving environment with their father and that [Mother] can get the help she needs to become the kind of mother her children need.”

This parent was not providing care to the children and instead left them with a stranger whom she had only met two weeks earlier rather that utilize the other parent who was ready, willing, and able to provide care for the children. The sole reason for doing so was to prevent the children from enhancing their relationship with their Father. In addition to being potentially detrimental to the children that action also violates the Indiana Parenting Time Guidelines.[fn4]

Similarly, I had another high conflict case come on for hearing last week. These parents have been embattled for years and are continuing a battle that is motivated by conflicting positions as to what is best for the children. Such position underlies many high conflict parenting cases: whose parenting methods are best for the children. The reality is often that neither is best and while one would be better than the other, actually reducing the conflict by accepting either method through toss of a coin is better. But, of course, judicial officers may not simply toss a coin to determine custody as there are statutorily enumerated factors that must be considered.[fn5] Thus, these conflicts continue. In this case I would like for the court to order the parents into mediation with me so their conflict can be put to rest. Otherwise these two risk having a child who will hold them accountable in the future for their combative actions now.

1] See In re Paternity of T.G.T., 803 N.E.2d 1225, 1228 (Ind. Ct. App. 2004), reh’g denied,trans. denied.
2] Wieren v. Van Wieren, 858 N.E.2d 216, 223 (Ind. Ct. App. 2006)
3] Wieren v. Van Wieren, 858 N.E.2d 216 (Ind. Ct. App. 2006) dissent
4] ICSG Section I(C)(3) Opportunity for Additional Parenting Time. When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences. The other parent is under no obligation to provide the child care. If the other parent elects to provide this care, it shall be done at no cost and without affecting child support. The parent exercising additional parenting time shall provide the necessary transportation unless the parties otherwise agree.
5] Indiana Code 31-17-2-8 [dissolution], IC 31-14-13-2 [paternity]
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) 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.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

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