Thursday, April 30, 2015

Winning a Child Custody and Support Appeal Requires a Proper Trial Court Foundation

I begin with two foundations for this bit of advice. My credo: Child custody decisions are not about the law, but are judgments based upon parenting skills an behaviours. Appeal [v]: to ask for aid, support, mercy, sympathy, or the like; make an earnest entreaty.

Anyone experienced with trial work or appellate procedure knows the cardinal maxim; failure to object at the trial court level establishes waiver of the issue.[en1] Today however, I examine an appeal from the perspective of that overarching principle of mine which is that child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours. I emphasize behaviour because it is the actions that you take which are critical to legally establishing your parenting role.

Parents, especially those who have their parenting role diminished in the legal context, often lament the judicial process and the discretion afforded to judicial officers. This discretion will not be disturbed save for an abuse of that discretion.[en2] In an appeal the appellant has the burden of establishing that an objective violation -- a misapplication of the law -- or that a subjective violation -- decision was inconsistent with the evidence -- occurred.

I have previously written admonitions to attorneys and parents in my numerous monographs on appeals as that is my legal specialty. I continue to implore parents and practitioners to focus on the pleading basis of the appeal which I want you to think of not in the legal definition but common parlance. That is, to posture in a manner that humbly asks the court to find in your favour. Ideally, this posturing for an effective appeal begins prior to entering the trial court for the first time.

Here I examine the decision in Cody Boruff v Tiffany Boruff, decided 22 April 2015. The underlying cause was heard by the Honorable Lynn Murray, Judge Howard Circuit Court. Cody Boruff holds the quintessential posture which befalls those who chide decision makers into deciding against them.

Cody presented four issues to the Court which all challenged Judge Murray’s findings. These were a denial of his motion to continue the final hearing; his child support obligation calculation; the division of the marital estate; and, the order for him to pay some of Tiffany’s attorney’s fees. The Indiana Court of Appeals [“Court”] upheld Judge Murray on all issued and, as is all too often common, admonished Cody’s appellate counsel.[en3]

Cody and Tiffany were married in May 2012, and one child, K.B., was born of the marriage in July 2012. On 06 August 2013, in an apparent rush to undo that presumed oath for a matrimonial life, Cody filed a petition for dissolution of the marriage. Pursuant to the provisional order, Tiffany had custody of K.B., and Cody exercised parenting time and was obligated to pay child support in the amount of $77 per week. But Cody did not comply with the child support order.

In December 2013, Cody’s attorney withdrew his representation of Cody. On 18 February 2014 Tiffany requested a final hearing on the dissolution petition, as well as a hearing on her affidavit for citation alleging that Cody was in contempt of court for failure to pay child support. The trial court set a hearing on both matters for 27 March 2014 and it ordered Cody “to complete the program and file [the] completion certificate with the Court prior to the hearing.” In other words, get it done within five weeks which clearly is achievable. You’ll see that this wasn’t Cody’s first opportunity. The trial court had originally ordered the parties to complete that program in August 2013, and Tiffany had filed her completion certificate with the trial court on August 26, 2013. Tiffany got it done and filed in under 26 days, some six months earlier.

On 24 March 2014, only three days before the hearing, Cody filed a motion to continue the hearing in order to obtain new counsel to replace counsel who withdrew three months earlier. The trial court granted that motion and rescheduled the hearing for 08 May 2014. On 07 May, being prompt as always, Cody had a new attorney filed her appearance with the trial court on his behalf. That attorney then requested another continuance. The trial court granted that continuance and rescheduled the hearing for 07 August.

Cutting even closer now, on 06 August 2014 Cody moved to continue the hearing scheduled for the next day, 07 August 2014. The trial court granted that motion but stated that “[n]o further continuances will be granted.” The trial court scheduled the hearing for 08 October 2014. The hearing had now been rescheduled to over six months later.

And just as Cody was granted another of his requests to delay the outcome, on 18 August 2014 his attorney filed a motion to withdraw, which the trial court granted. On 06 October, this time an astonishly well in advance and promptly addressed act Cody filed a motion to continue. This was two days before the scheduled hearing and about 6 weeks after his latest attorney withdrew. Rightfully, Tiffany objected and Judge Murray denied that motion as she had previously indicated that she would.

On 08 October the court conducted the final hearing on the dissolution decree and on Tiffany’s affidavit for citation. At the conclusion of the hearing, the trial court asked the parties to submit child support worksheets and proposed orders. Cody did not submit either a child support worksheet or a proposed order to the trial court. While on the subject of Cody’s omissions, guess who still hadn’t complete the activities? On 03 November 2014 the trial court entered the final decree which included; “Petitioner shall complete the [] workshop within seven (7) days of the date of this Decree and submit proof thereof to the Court[] or risk further proceedings for contempt of the Court’s Order.” Cody’s ardent refusal to comply with the order to complete the activities clearly exhibited a behaviour indicating that his is not concerned about the welfare of the child. Additionally, in blunt terms, he was also telling Judge Murray to piss off.

Throughout the period in which a final hearing was pending an income withholding order had been entered against Cody who was not paying any child support. He then voluntarily quit two jobs and sued the first former employer and apparently joined the second in the suit. This must have accounted for him not having time to complete the activities. Just like not complying with the on-line parenting advice, by not paying >b>any child support Cody was again, in blunt terms, telling Judge Murray to piss off.

As to child custody and parenting time -
“Finding from the totality of the evidence presented that such an arrangement is in the best interests of the minor child, the Court places physical custody of the minor child [K.B.] with [Tiffany].”

As to child support -
The court found that Cody testified that he was unemployed from sometime in June 2014, to sometime in August, 2014 although his Facebook page indicated that he obtained the second job sometime in June 2014. [Social Networking sites making their way into the Courtroom] Cody testified that he “just obtained a job” in an undetermined position, for an undetermined wage, for an undetermined duration, and on an undetermined schedule. “The Court does not find such representation, as made, to be credible.” Tiffany tendered a check showing Cody’s regular income at the time of the filing. Cody testified that his “take-home” wage was “a couple of hundred dollars higher than that evidenced by the [check].”

However, despite having received discovery, multiple requests for compliance, an Order Compelling Compliance, and finally a Sanctions Order from the Court, Cody still failed to provide any proof as to the actual extent of his previous wages. His refusal to comply with the rules governing discovery and the Court’s prior Order(s) do not form a basis for relief from the Court’s valuation of his gross income in the absence of evidence to the contrary. Thus, Judge Murray imputed income to him at well under the “couple of hundred dollars higher” that he testified that it was. This may be beating a dead horse but by not complying with discovery orders Cody was, in blunt terms, telling Judge Murray to piss off.

As for division of marital property -
The parties were to follow a relatively standard division of property which is keep what you have in your possession and pay your own debts. Cody’s car had already been repossessed before the dissolution filing so no issue with that although at the time of the final hearing he did have Tiffany’s car which he said was not in operating condition. Tiffany didn’t want the wreck returned. Tiffany specifically got to keep the “55 [inch] LED TV, Xbox, Xbox Kinect, Xbox controllers, Blue Ray [SIC] 3D DVD Player, and all associated accessories for each of those items” which were in her possession. Tiffany was also to pay the outstanding debt on those items as well as credit card debts. Cody was to pay the xfinity claim, unpaid apartment rent, utilities and other incidental debts for which he was being sued. The court considered the contributions of the parties to the marital assets and debts and believe the distribution to be equitable.

As for the contempt citation for child support -
“[T]o the date of the final hearing [Cody] had paid six hundred sixty-two dollars ($662.00) of the four thousand three hundred eighty-nine dollars ($4,389.00) owed—an amount less than twenty percent (20%). [Cody] admitted that he was substantially delinquent and that he had been gainfully employed during the majority of the pendency, but stated that he could not pay the child support because he had “many other debts to pay.” As noted by the Court previously, [Cody] was not paying any of the parties’ joint debts. [Cody] further admitted that since the separation he has been residing in his mother’s home, where [he] is provided with shelter, maintenance and a vehicle—all at no cost to him.”

“The Court finds that [Cody] did intentionally and willfully refuse to pay court-ordered child support when he had the ability to do so. The Court finds [Cody] in indirect contempt of court as a consequence.”

The Opinion

I am not going to go into details of the opinion as there was little, if any, merit to any of Cody’s claims. So inadequate were his arguments that Tiffany did not even waste any effort by filing an Appellee’s brief. Under the reduced standard of review[en4] the Court still upheld Judge Murray’s discretion throughout.

Cody contends that, “[w]ithout legal counsel, [he] was unprepared and ill[-] equipped to represent himself at the contested final hearing.” Thus, he maintained that the trial court abused its discretion when it denied his motion to continue. The Court said, “[w]e cannot agree.”

Next comes, “[b]ut Father ignores the fact that he did not comply with discovery orders regarding proof of his income, and, more importantly, he did not submit a child support worksheet to the trial court.”

Further the Court expresses that Cody’s “sole contention on appeal is, in effect, that the trial court did not properly consider the parties’ economic circumstances at the time of the final hearing. But, again, Father did not comply with discovery or otherwise present evidence regarding his income at the time of the final hearing, and the undisputed evidence showed that he lived with his mother rent-free. [Cody’s] bald assertion that he cannot afford to pay the debts assigned to him, without more, fails to demonstrate that the division of property, including the debts of the marriage, is unjust or unreasonable. The trial court did not abuse its discretion when it divided the marital estate.”

And just more of the same follows with, “because Father was in contempt for failure to pay child support, the trial court did not abuse its discretion when it awarded . . . attorney’s fees.”


Cody Boruff has engaged in what those of us who are familiar with contentious litigation call ‘gaming the system.’ Cody has demonstrated complete contempt for the court whom he invited to resolve the dissolution of his marriage. While he managed to contribute to the creation of his child he seems to have abandoned any desire to fulfill his parenting obligations in place of maintaining an adversarial position against the mother of his child through costly and protracted litigation.

His contempt is not only against the court but his child. He first consented to Tiffany having primary physical custody of their child while he was to exercise minimum parenting time. He also agreed to pay some support to her although she had the higher income. After being subject to an income withholding order he quit two jobs and the court found him to be not credible in his assertions about employment. He continually refused to comply with court orders that he complete the activities at although Tiffany did so nearly immediately. Throughout the time that the final hearing was pending he sought delays for the purpose of costing Tiffany additional attorney fees. Finally, although claiming to have not had money to pay child support he readily paid for an attorney, transcript and filing fee for a frivolous appeal. Fortunately, Tiffany saw its worthlessness and didn’t fall into the trap of defending against it.

I have great respect for Judge Murray because in our conversations it is obvious that she is patient with pro se parents, gives due consideration to everything presented to her, and is substantially concerned with ensuring that her orders truly meet the best interest of the children. She was more patient with Cody than I would have been. I have completed the activities more than him during the same time even though my case is over. I do try to maintain my familiarity with that site as I feel it is the best online activity at reducing parental conflict. I would have ordered Cody jailed on the condition that he be provided access to a computer to complete the activities which would be the “key to his release.”

Cody postured himself as a recalcitrant parent who was engaged in a manipulation of the judicial system in an effort to frustrate Tiffany. He demonstrated a complete lack of dedication to the betterment of his child. It is with this background that he then asks Judge Murray and, subsequently, the Indiana Court of Appeals to rule in his favour. Well, Judge Murray used her broad discretion to rule against Cody’s wishes in a manner that I believe was demonstratively objective. The Court, which will defer to the discretion of the trial court unless such discretion is abused, upheld Murray in all respects. Cody has no valid argument before the Court. For the sake of argument let me explain how Cody would lose even if he had a meritorious claim.

As stated, the Court will uphold the trial court judge unless the conclusions are against the logic and effect of the evidence brought before it. The Court defers to the trial court because the judge is in the best position to assess witness demeanor and credibility.[en5] Judges do make errors or borderline calls that could be reversed on appeal.

Keep in mind that appealing is pleading, begging, asking one for a favour. It is done through legal argument. But, when that argument results in a close call there is a deciding factor which is ultimately the behaviour of the parties. This comes about through an unconscious bias.

Bias and non-legal decisions shouldn’t play into a judicial decision, but they do and here is your reward for reading this far as I explain how. The appellate panel is not the first to read the briefs. The clerks who work for each judge do this. Judges generally do well at maintaining the mandated[en6] neutral stance and will not consciously, at least, let a bias weight for or against a litigant. This is especially true of those who have ascended to the appellate level. But the clerks are students or rather inexperienced lawyers. They have not sat in judgment practicing the role of an unbiased arbiter.

Three clerks each examine the briefs, do the legal research, and then present their opinions to each other. They usually settle upon a unified opinion to present to the panel. They have each developed an opinion of the parties such as Mr. Cody Boruff which was likely that he was menacing the court and filing a frivolous appeal. With an underlying feeling that a parent is being disingenuous at the trial court level it is then tougher to find in favour of that litigant in an equally weighted argument or even when that litigant’s claim may have greater weight. Thus, when a bias is established in the background of the case reviewing the claims becomes rather perfunctory. This is why I open my appeals with the strongest argument so the bias that I am correct is established immediately, thus giving greater weight to my less solid arguments.

It is critical to establish your credibility early on with the court and posture in a manner that demonstrates respect for the court but more importantly that you can rise above the discord with the other parent and behave in a manner consistent with the best interest of the children.

Cody may no effort to appeal to Judge Murray to do anything in his favour. He demonstrated clear contempt for her. Thus, he did nothing for the justices’ clerks or the justices on the panel to find him appealing. Cody Boruff is the paragon of a failure to appeal to the court and will rightfully pay for his disdain of Tiffany, Judge Murray, and the future well-being of his child.

1] We note that a “party generally waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court.” GKC Ind. Theatres, Inc., v. Elk Retail Investors, LLC, 764 N.E.2d 647, 652 (Ind. Ct. App. 2002).
See In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014) (“[T]he ‘[f]ailure to object to the admission of evidence at trial normally results in waiver and precludes appellate review.’”) (quoting Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011)).
See also; Reinhardt v. Reinhardt, 938 N.E.2d 788, 791 (Ind. Ct. App. 2010) (stating that “[u]nder the invited error doctrine, a party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct “).

2] On appeal, we will reverse a trial court’s decision only upon a showing of an abuse of discretion, which occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances. Haley v. Haley, 771 N.E.2d 743, 747 (Ind. Ct. App. 2002).

3] “In fact, Father’s appendix is woefully deficient . . . We remind Father’s counsel to abide by Appellate Rule 50(A)(2) in the future.”

4] When an appellee fails to submit a brief, we do not undertake the burden of developing the appellee’s arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006).

5] Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)

6] The role of the trial judge is to serve as a neutral and passive arbiter. See Owens v. State, 750 N.E.2d 403, 409 (Ind. Ct. App. 2001); see also Branham v. Varble, 952 N.E.2d 744, 747 (Ind. 2011) (recognizing trial judge role as neutral arbiter).

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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, 2015 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Monday, April 27, 2015

Drunkenness, Improper Driving and being a Lebanon City Council Member

A year ago I wrote County Prosecutor Disciplined by the Indiana Supreme Court for Drunk Driving is a Candidate for Judge of an Indiana Superior Court where I opened with;
Being a cyclist and advisor on the well-being of children I have no tolerance for the terrorist element known as ‘drunk drivers,’ people who randomly target the general population for their deadly assaults. Over the weekend I was provided with some documents that demonstrate that a current judicial candidate has a drunk driving offense conviction. Typically I like to expose the positive attributes of candidates, for 'mud-slinging' debases the legitimacy of the election process. I have no personal ax to grind with the candidate here but feel so strongly about this issue that I am compelled to put it forth.”

That was about a drunk driving conviction from about 20 years earlier of Boone Superior Court Judge Bruce Petit who was then the chief juvenile prosecutor for the Office of the Boone County Prosecutor.

Last week I received an email from Aaron Smith detailing the numerous alcohol related convictions and driving offenses by current Lebanon City Council member Jeremy Lamar who is a current candidate for an at-large seat.

Although Bruce Petit’s offense was decades old, and that I feel he is well intentioned toward the welfare of children, I was still unable to in good conscience vote for him because of that conviction. He and I talked about it and he was understanding and appreciative of my position.

Jeremy Lamar, however, stands in stark contrast to Judge Petit. Jeremy’s latest of three alcohol related criminal offenses is a 2015 conviction. He has nine total offenses relating to alcohol and/or driving. Not only should voters not give their tacit support to the killing of innocent people by drunk drivers through a vote for Lamar but Lamar should withdraw himself as a candidate.

These were not “errors in judgment” or “mistakes” as the apologists and enablers would lead you to believe. What these flagrant and ongoing offenses demonstrate is a pattern of contempt for Law and an unwillingness to accept responsibility to abide by the social strictures that are intended to facilitate a safe environment for all members of our community. Yet he has been granted the authority and sits in a position to create conditions or impose upon people mandates and prohibitions that affect their health and welfare. I believe as Aaron Smith who titled his email "Sad situation" that this is extremely unfortunate because Jeremy has always been friendly to me and willing to hear any concerns. I feel that those are two essential attributes of being a public servant. However, those cannot excuse the contempt that he has demonstrated for our moral code.

In Death Penalty for Drunk Driving I rationated why drunk driving is a greater offense against the public order and safety than ‘cop killers’ who strike when a warrant is being served on them. In arguing why drunk driving should be a death penalty offense if cop killing is I made an analogy between drunk drivers and, among other terrorists, the cop killers backed into a corner;
There is a distinction between the "cat backed into a corner" offender and the drunk driver. The drunk driver who kills did not set his sights upon a particular individual; a former spouse, a rival gang member or someone threatening his or her liberty. The drunk driver kills randomly and does it 5000 times a year. Every child at a school bus stop. Every parent walking his or her children along the sidewalk. Every driver on the road. All of these people are at risk of being the next victim much like being at the mercy of a sniper perched on a rooftop shooting randomly.

This is the way it is with drunk drivers. We don't know what location will be next. We don't know when it will happen. We don't know who the target will be. The only thing we know is that somewhere today a drunk driver will strike and kill using a vehicle and that it will happen multiple times. This is terrorism.

In El Salvador the penalty for the first drunk driving offense is death by firing squad. In Bulgaria a second offense can bring about the death penalty. California was the first state to convict a drunken driver of murder - in 1984. In North Carolina drunk driving killers have been convicted of murder for driving in a manner that showed wanton disregard for human life.

I find no logical consistency in legalized alcohol consumption and an age demarcation for such while marijuana is scheduled by our federal government as one of the most dangerous drugs, more so than cocaine. Many more people die from excess consumption of water than do from marijuana overdose. These contradictions cannot withstand a casuistry challenge. To balance liberty with responsibility along a moral or ethical continuum, substance laws should be based upon competency. That is, an applicant for a permit to purchase or consume any substance should be required to pass a basic test of knowledge of the substance, it’s risks, benefits, responsible use, and penalties for misuse. Clearly some people over the age of 21 years cannot responsibly consume alcohol as Jeremy Lamar has aptly demonstrated. There are others like my son who at 18 years has been exposed to and allowed to consume alcohol since grade school but just doesn’t. He doesn’t see much sense in it but may have a glass of wine once a year if that often.

Age does not make one competent when it comes to substance use. Responsible use can not be mandated either. But as long as the courts treat drunk driving as a peccadillo then offenders will continue to abuse their right to be among the population. Considering the historical context of the death penalty in that it is to forever remove the most dangerous persons from our midst then clearly it should be applied to the most deadly terrorist element we have; the drunk driver. But it won’t. Drunk drivers are the only criminal class who operate in the legal market and contribute significantly to the automobile production, maintenance, and repair markets at a rate greater than the average. They also are often elected to occupy positions of authority as Judge Petit, Judge Hughes in Hamilton County, Jeremy Lamar and an ad nauseum list of legislators, judges and other public officials have been.

Jeremy Lamar has said, “[i]t is my intention to leave this up to Lebanon voters to decide if they would like me to continue in office.” We will soon know whether Lebanon voters have chosen to give their support to the member of a class of people who participates in the random slaughter and disfigurement of innocent children.

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Tuesday, April 21, 2015

The World’s Worst Parent - Becoming a Better Parent

Upon reading the title of this posting an image appeared in your head instantly of who you perceive to be the world’s worst parent. If you can consciously hold onto or retrieve that vision do so. If the world’s worst parent you envisioned has not yet appeared visually to you then try to bring that image to your conscious awareness now. Become transfixed by this paragon of parenting shame.

Many of my readers may hold a familiarity bias which portrays their partner in creating a child as a paradigm of the world’s worst parent. If such a nemesis who engaged in a vicious custody battle appears try to again conjure an image of what you objectively feel is the world’s worst parent. This can be a fictional representation. It can be that same person, but more likely, the person with whom you disagree so vehemently and who holds such contempt for you has not plummeted to the depths of the parenting abyss.

Now take a moment to note the measurable objective qualities which earns this person the title of World’s Worst Parent. Although making an objective determination as to the worst parent may seem to contradict the opinion of who has the worst behaviour it nonetheless is calculable.

I am taking the philosophical position that parenting is not an act in itself -- an ends -- but that it is a step in the process of facilitating the healthy development of a child. It’s akin to cooking and feeding; where cooking, which is merely the preparation of the selected foods, is the ends. Feeding however involves selecting the foods, cooking and ensuring delivery which will properly nourish the body. So, as feeding is to properly nourishing the body, parenting is to facilitating the healthy development of a child.

The visage of the world’s worst parent which appears in my mind comes from the movie Dead Poet’s Society.

Kurtwood Smith stands in the role of father to Neil, played by Robert Sean Leonard, a young man at an all boys cult based preparatory school. Robin Williams is the literature teacher who encourages the young men to explore their passions and develop their essence individually. In short, he is their guide to becoming whole people.

Early in the story Neil evinces that he exist under the proscriptions of his father who has been described as “a killer of emotions.”[en1] When Neil takes an interest in acting and earns the lead role in a play he conceals this from his father. Soon his father unexpectedly appears in Neil’s dormitory room awaiting his return. Neil observes the scowl on his father’s face and attempts to proffer his justification for the deception. The father responds, “Don’t dare talk back to me.” He continues to derogate Neil saying, “It’s bad enough that you’ve wasted your time with this absurd acting business” which impugns Neil’s motives and character. As Neil attempts to justify his participation in the play, explaining that he maintains all A’s in his classes he is met with “How did you expect to get away with this?” by his father. The implicit message here is that Neil has made a moral transgression by acting in a play.

The father exposes his motive for the visit relaying that a family friend revealed to him that her niece is also in the play with Neil to which he responded, “No, no, no, you must be mistaken, my son is not in a play.” He then shouts at Neil, “You made a liar out of me Neil. Tomorrow you go to them and you tell them that you are quitting.”

After the stricture concludes and the father is leaving the room he pauses to expound; “I made a great many sacrifices to get you here Neil. And you will not let me down.” The messages here are clear -- Neil is indebted to his father and the only purpose his father has for him is to be a monument to the father’s achievements.

In the scene that follows Neil laments to Williams, “He’s planning the rest of my life for me and he’s never asked me what I want.” Williams responds, “You are not an indentured servant.” After additional discussion about how Neil must confront his father Neil closes with, “I’m trapped.” As I note below an Indiana child felt the same way and solemnly revealed, "I just want to kill myself."

Neil participates in the play the following evening and although his father was supposedly away on business and unable to attend he does arrive, late. After the play the father whisks Neil home where he reveals that Neil will be withdrawn from the preparatory school and enrolled in a military academy. The father exclaims, “We are not going to let you ruin your life” while the mother stands in the corner terrified displaying the emotion of someone witnessing the life in her child being extinguished in much the way she has obviously experienced.

“You’re going to Harvard and you’re going to be a doctor,” proclaims the father. “You have opportunities that I never even dreamt of and I am not going to let you waste them.” Neil, as he previously proclaimed to Williams, has yet to be asked by his father about his desires, ambitions, dreams, or wants. It does come, superficially, in this same scene. “Tell me what you feel. Is it more of this acting business because you can forget that” Neils father queries. But his inquisitiveness as to Neil’s feelings is disingenuous at best and in reality is more mocking or sarcastic in its delivery.

As the parents retire to bed the camera pans away and a slight crying gasp is heard from the mother, who realizes that the father has just delivered the death knell to their son, to which he then responds, “it’s going to be alright.”

The father is awakened by a gunshot which is inaudible to the viewer . He explores the house to find that Neil is in the study and has suffered a fatal self-inflicted gunshot wound. Kurtwood Smith in just one moment acts brilliantly by displaying in demeanor, grace, and expression the intense grief he feels at the loss of the object to which he could claim success for building, the disdain and hatred for his son for depriving him of that glory, and the anger over realizing that he will be seen as a failure for having a son who killed himself.

When told “Neil is dead” a classmate responds, “It was his father, his father did it.”

So what makes Smith’s character the World’s Worst Parent? He is not like Susan Smith, the Texas mother who plunged her car into a lake with the two small children in the back. He is not one of the many parents who savagely beat their children. He is not like the mothers who prostitute their infant daughters.[en2] He is far worse than all combined.

In Teaching your Children about Santa Claus, or; Why it's best to Beat your Child with a Stick I was addressing the harmful effects of violating a child’s trust by lying to him and how deceptions are disrespectful. In deriding parents who do not invest time in providing knowledge to children and instead emotionally abuse them by relying upon fairy tales of reward and punishments I said, “Instead children are told what to do, when to do it and how to feel about. ’I told you to do that now and you'll be happy about it.’ But that robs children of a voice, a sense of belonging, and respect.”

In National Childrens Mental Health Awareness Day I impart the long term harms to children’s emotional well-being by neglectful parents who, again, are not willing to invest time in their children because they are too selfish. There I wrote about how to facilitating positive emotional development.

Not just in parental relations but in all aspects of life children need a voice. The concept of 'children should be seen and not heard' is abuse. Giving children a voice does NOT mean letting them decide. It means hearing them. Giving children a voice is asking not telling. Their 'voice' comes in many forms including sitting in silence – that is saying something. It may be through athletic interest, artistic expression [drawing especially for the youngest] clothing selections or the way in which their bedroom is kept or decorated. Ask what the expression means to them or represents. Asking why is the boy in the drawing blue is stifling the child's expression. Instead stay 'tell me about this figure'. You may find out that the 'monster' is blue cause he is sad that no one plays with him. That boy representing a monster says loads, don't ignore it.”

In The Subtle Art of Communication I expounded more on the subject of emotional neglect of children.

Children thrive when they have two of the emotional needs related to communication met. First, they want to be heard in the sense of listening. It is a mixed blessing for me that when I get around some youngsters that they immediately attach themselves to me and start telling a story or recite their experiences for the past week. They know I will divert my attention to them and listen. It often demonstrates that no one else listens to them. Second, they need to have the feeling that they are not powerless.

Children need to be heard and have a feeling of power. I instilled into my son at an early age -- around two years -- that he would be heard and had power. As we would peruse the grocery store aisles I would tell him to grab whatever he wants or to tell me. Items continued to flow in and out of the cart. He had the power to choose what he wanted while I retained authority to limit what he acquired. He was able to express his desires and those guided our conversation about healthy foods, well-being and the influence of marketing.

The command question -- "You want to go to the park today" -- is damaging in two ways. First, it tells the child that not only does he or she not have a say in his or her outcome -- which can be quite reasonable -- but that his or her "want" or opinion will not be considered. The child is not heard. To compound the problem, the child is also told that you do not own your thoughts. That ownership is critical to well-being for a child. The child is not only commanded that he or she will be going to the park -- reasonable in and of itself -- but additionally that the parent owns his or her thoughts because even though the child may desire the contrary the parent has declared what the child wants.

In Why Judicial Officers must Understand the Elements of Child Abuse I concentrated on a case where a judge focused on the physical abuse of a child rather than the more prominent psychological torture.

As to the injuries these are not “minor” except when strictly limited in scope to the physical impact upon the boy's body. The serious injuries to this child are to his emotional well-being and his character and consciousness which are forming at this age.

While the physical wounds which [Judge] Palmer refers to as “minor” will readily heal while the child is properly nourished the psychological scars will run much deeper and greater in duration. It will take the assistance of many people to mitigate this damage and give this boy the zest for life that most hold and forever let the days be in the past in which he says "I just want to kill myself."

The child abuse and neglect treatment and advocacy community has largely ignored the emotional neglect of children which I have long lamented and sought to be elevated in status as a priority concern. The emotional abuse of children is worse than the physical or sexual abuse that children have faced. This is what makes the Kurtwood Smith character the World’s Worst Parent. That character and parents like him who psychologically abuse their children by depriving the children of ownership of their own feelings, wants, desires, and outcomes are creating situations that are far worse than any physical abuse would have inflicted.

The American Psychological Association on 08 October 2014[en3] finally recognized that, as I have contended, psychological torture of children is more harmful than physical or sexual abuse.

Children who are emotionally abused and neglected face similar and sometimes worse mental health problems as children who are physically or sexually abused, yet psychological abuse is rarely addressed in prevention programs or in treating victims, according to a new study published by the American Psychological Association.

“Given the prevalence of childhood psychological abuse and the severity of harm to young victims, it should be at the forefront of mental health and social service training,” said study lead author Joseph Spinazzola, PhD, of The Trauma Center at Justice Resource Institute, Brookline, Massachusetts.

The character Neil did not kill himself but rather, I contend, that he was murdered by his father in a form of generational suicide. That is, the father killed off his own bloodline by inducing his child to take the action of terminating his corporeal life in an effort to establish congruence with the spiritual life that the father had already extinguished.

In both the Dead Poet’s Society and the case Judge Palmer presided over these children had fathers who hated them for not being what the father wanted, for demonstrating a will to express their own essence. Similar to other parent’s who deprive children of ownership of their own feelings -- like parents who force a child to ‘say you’re sorry’ -- these parents inflicts the most painful and long lasting harm upon their children. That is what makes each of them the World’s Worst Parent.

[1] Tim Lammers, Obtained from on 20 April 2015
[2] Parents Who Pimp Their Children -
Shaniya Davis, 5, sold into prostitution by her own mother hunted by U.S. police -
Mom Prostitutes Daughters, Key Witness Speaks -
[3] Childhood Psychological Abuse as Harmful as Sexual or Physical Abuse - Children who had been psychologically abused suffered from anxiety, depression, low self-esteem, symptoms of post-traumatic stress and suicidality at the same rate and, in some cases, at a greater rate than children who were physically or sexually abused. Obtained from on 20 April 2015

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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, 2015 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Monday, April 20, 2015

Understanding the Liberty Mutual Insurance Company fallacy and how this misattribution affects contested child custody cases

When helping people regain or gain control over their lives and subsequently their relationships surrounding their child custody cases I find it necessary to get to the root of the hindrances to their independence. The scripts, norms, and ethos that influence us as individuals are often developed by those who are likely to experience the greatest gain from our greatest loss. The purveyors of these contradictions are usually marketers representing some commercial interest. I have previously exposed ways in which perceptions are tainted by advertising and continue with such today as I target Liberty Mutual Insurance Company.

Incidentally, this is not my first disputation against Liberty Mutual. Previously this company has raised my ire over their portrayal of fathers and promoting a cultural bias favouring custody of children in their mothers.

Recently, Liberty Mutual has been running a series of commercials related to indemnity coverage that is typically provided by insurers. The commercials show purported drivers who had recently purchased a new vehicle and were soon thereafter involved in a collision in which their vehicle was totaled by another driver who was at-fault. They are then portrayed as being disgruntled about the compensation received for their vehicle and then pose these two queries; how can a car be worth thousands of dollars less than sticker price before it has had its first oil change, and; why do insurance companies “punish” drivers for getting in a wreck that was not their fault.

In this monograph I provide the simple and logical answers to these questions that will also be beneficial in helping you better identify paralogisms, particularly those related to child custody matters.

Consequences to a voluntary action with a known range of potential results and corresponding probabilities, or rather acceptance of risk, is not punishing someone as Liberty Mutual implies. Punishing is that which is very demanding either physically or emotionally. To punish someone, as Liberty Mutual contends the act of not compensating someone for the purchase price of a vehicle destroyed soon after, is to subject somebody to a penalty for doing something wrong. Doing something wrong is to contravene the ethos or morality of a community or people.

First thing first, is that these querulous people should be grateful that the collision which totaled their vehicles apparently left them unscathed emotionally and physically. In 25 Years Ago Today I Died I wrote about the vehicular collision which took me nearly 20 years from which to physically recover yet I remain positive in my mental perceptions of that event. Beyond being ingrates, the characters in the Liberty Mutual campaign with their splenetic attitudes possess some misconceptions about risks, responsibility, and the aspects of what constitutes living.

In child custody disputes I encounter parents who display similar indignation or hold like beliefs as the Liberty Mutual characters about what is owed to them. Life involves risks, responsibilities, adversities and rewards among other aspects. Life is neither equal for similarly situated people nor is it equitable. You may get in a collision wherein another driver is legally culpable. Conversely, you or someone else in the same circumstance may not. It could be nothing more than one potential driver coincidentally looking directly at the oncoming wreckless driver and avoiding him while the other potential driver peers down the opposite direction of the cross street and gets struck. If you get struck in your relatively new vehicle -- less than one month/one thousand miles -- the insurance carrier will pay market value for the vehicle. That is not enough to replace that vehicle because the only replacement vehicles are dealer new. To answer the query of the Liberty Mutual character about why the replacement value isn’t paid it is necessary to understand the market.

Inclusive in the new price of a car is the implicit or explicit guarantees of the dealer not found with used vehicles sold either privately or through a dealer. If you were able to find a vehicle with less than 1000 miles for sale which had a previous owner you would likely wonder why. Why had it been ditched so soon? That doubt has a cost in the market. Thus a car’s depreciation is much more rapid relative to its use initially. This had been the purpose of the down payment which was the equivalent of the immediate depreciation upon sale. When operating a vehicle on the public roadways you are accepting the terms of the agreement with your insurance carrier as well as the statutes and established case law relating to motor vehicle torts. These include receiving ‘fair market value’ for your loss.

The other query is why am I being punished? No one who receives compensation from an insurance company, regardless of whether it is sufficient to replace the vehicle, is being punished. But Liberty Mutual is attempting to alter viewers perceptions of what is a punishment. Underlying this attempt to instill a new perception of consequence is the greater scheme of eliminating risk. But as any investor knows risk produces the greatest rewards. Liberty Mutual along with a consortium of other commercial enterprises seek to capture the rewards for themselves that consumers relinquish by spending more money for guarantees.

This commercial uses the framing of assuming there will not be a loss [no one should experience adversity] if you are in a collision. In this scenario people will make a higher payment to secure the full value of the asset. If it is framed as an expected loss if a collision occurs [that’s life] then people will assume a proportional risk by paying a lower premium.

To arrive at how framing affects the decision making process assume these two scenarios as absolutes.
Scenario A is Liberty Mutual’s policy in which policyholders assume they will never have a loss. In this scenario the amount that Liberty Mutual pays for the depreciation of all vehicles totaled in collisions will be exactly equal to the money received from the higher premiums paid on all policies.
Scenario B is other insurers policies in which policyholders assume they will have some loss from depreciation. In this scenario the amount that policyholders pay for the depreciation of all vehicles totaled in collisions will be exactly equal to the money saved by paying the lower premiums on all policies.

In a study of framing effects[en1] the respondents would have chosen Liberty Mutual’s policy by 78% to 22% if it was presented as no one should experience a financial loss from a collision. When framed as though a loss from depreciation is just part of life then the results were nearly reversed with only 28% in favour of Liberty Mutual and 72% in favour of traditional coverage. Thus, Liberty Mutual must reframe your expectations to effectively sell their service. That is they must convince you that life should not involve risk and therefore you are better off by subjecting yourself to greater costs to guarantee this elimination of risk.

Pecuniary matters are not my greatest concern here though. The greater harm from this shift from accepting risk is the corresponding change in attitude that Liberty Mutual attempts to perpetuate. Liberty Mutual’s characters belie the psychological effect. In essence it is not the financial compensation that is at issue, although that is the method used, but the perception of what is deserved. These characters are demanding that their situation be restored to such that they were in prior to the collision. They insist that they deserve this because they were not at fault. And they are willing to pay more to do so.

It is this attitude that pervades high conflict child custody disputes for which there is a corresponding cost. Divorce or separation usually involves mutually instigated destructive action, more than most parents are willing to admit. Even in cases where one parent was overwhelmingly at fault this does not entitle the other parent to any special considerations. Underlying many disputes is perceived financial deficiencies or the control over financial matters. In cases or divorce both parents will experience a financial loss and reduced standard of living. It simply cost more to operate and maintain two households as opposed to one. The Liberty Mutual characters are of the mindset that the parent who is not at fault should have his or her lifestyle completely maintained as it was with costs imposed upon the at-fault parent. Such is not reality though. Getting married to or being a cohabitant with another which one has a child in common is taking a risk. Having a child is taking a risk. Living involves risks. Risk sometimes results in great cost.

Now indulge me as I present financial costs in a different context. Free enterprise or free markets are an extension of liberty. That is people are allowed to have the freedom to purchase the goods and services which they desire. Taxes and other fees which are usurped from the individual and dedicated to a purpose which he has no direct say in is a deprivation of liberty. The more one pays in taxes the less liberty he has. Likewise, the same can be said of necessary expenses. There is a certain amount of resources that although we can direct the manner of spending still are dedicated toward spending. That is, we can choose which grocery store or what food but we still need to eat. The result is that we have two types of spending; discretionary and non-discretionary. Our discretionary spending is our liberty. Thus, by dedicating a greater amount to non-discretionary expenses we deprive ourselves of some liberty.

Demanding guarantees and surety against the costly adversities that are typical of living comes at a cost which is liberty. Carrying this attitude into child custody proceedings will perpetuate conflict. Those who have done it know of the financial toll. They have also experienced the loss of liberty as judges are forced to craft plans for custody and parenting time that are less convenient and more expensive to both parents than if they had made an agreement themselves. A Liberty Mutual policyholder is the type of person who will perpetuate a custody battle on principle, the principle of rightness and that he or she does not deserve to be saddled with any of the costs associated with the risk of divorce or separation. The risk of the relationship is that it may end.

Conversely though risk sometimes produces wonderful rewards. Those rewards include the children as well as the financial benefits of cohabiting. If you have experienced divorce or separation then frame it as the elimination of the benefits of the relationship rather than a loss associated with the demise of the relationship. By doing so you should experience less dissonance and conflict. Those who want to entrap themselves in the abyss of perceived guarantees can enslave themselves to the costs of satisfying their desires and submit to a phlegmatic mind devoid of the excitement that life can offer. People with greater felicitous behaviour enjoy life more.

So if you already have a policy with Liberty Mutual I suggest dumping it in favour of a company that is more scrupulous, has intelligent people behind it, and embodies the principles that effectuate better parent-parent and parent-child relationships.

[1] Kahneman, D., & Tverksy, A. (1984). "Choices, values, and frames". American Psychologist 39: 341–350.

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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.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

View Stuart Showalter's profile on LinkedIn

Subscribe to my child custody updates

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©2008, 2015 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.