Monday, May 22, 2017

Financial motivation for Marijuana criminalization or legalization

The innocuous plant Marijuana or, more precisely, its derivative substance THC, has been criminalized through an insidious effort which sets upon children myriad harms. Those responsible for the criminalization and those who support it stand to benefit financially from that status. How nice it would be to turn the tables on them and make their deliberate harm to children and others cost them financially. In this rationation I propose a method to do just that.

Those who profit from criminalization may include testing labs, law enforcement officers, all court personnel, healthcare workers, attorneys, DCS workers, jailers, treatment centers, security companies, pharmaceutical companies, and gang members. Those involved in this scheme rationalize their behaviour through lies, misinformation, deceptions, and outright denial. In the following paragraphs I will logically tear these down and then tell you about what I am doing to combat these insidious actors.

Although he routinely violated the rules of criminal procedure I enjoyed watching Perry Mason present a surprise witness or reveal exculpatory evidence during trial which ultimately led to the acquittal of his client. Similarly, I like to present the gateway drug argument in a slightly surreptitious way. When speaking of psychotropic gateway drugs my layman forensics sparing partners and I are usually in agreement that alcohol and nicotine are such drugs. Then I will throw out there that they have likely introduced their children to mood affective drugs by giving them a psychotropic gateway drug, or maybe that their parents did this to them. Generally, they object to this proposition until I mention that caffeine is the most commonly pushed psychotropic gateway drug.

The support for labeling caffeine as the psychotropic gateway drug is growing as the ability to deny this truth is waning. According to DSM-IV's definition caffeine can Induce dependence. Patients with schizophrenia have high rates of consumption of this substance which they use to relieve dysphoria[fn1]. Adolescents using caffeine are more likely to use or abuse stronger psychotropic drugs, such as cocaine, as adults[fn2]. I have interviewed numerous users of scheduled narcotics, often in prison, and made two deductions. This being that many of them have compulsive behaviours and all had been users of caffeine prior to their illicit drug use. Thus, it appears that users and abusers of cocaine and similar drugs were put on that path through the introduction of caffeine, often by parents.

For over 10 years I have counseled parents engaged in child custody disputes. During that time I have been able to witness the direct impact upon children by the removal of a parent from their lives. I am well read on the literature and have done my own interviews of children across a range of ages about the impact of parental absence. Additionally, I have done in-home observations and interviews of parents who are marijuana users. From all of this I have been able to make some generally applicable conclusions that you have likely witnessed yourself and know from an intuitive sense. In short, children need their parents.

There are numerous ways in which marijuana criminalization removes parents from children. The most direct is when a parent is arrested and incarcerated. There is also the involvement of the Department of Child Services who may decide that parents' use of marijuana jeopardizes the welfare of the child and thus removes the child from the home.

Indirect ways include a previously stay-at-home parent entering the workforce to compensate for the loss of income of an arrested parent. The child effectively looses both parents. When a parent losses employment based solely upon a marijuana screen that parent may then have to work greater hours to achieve the same compensation. This may also reduce time with the child. The parent may not be able to find employment or earnings at the previous rate which may subject the child to living in poverty. These types of upheavals in daily life can lead to difficulties with mental well-being and produce heightened irritability in affected parents.

An interesting aspect of marijuana use that I have observed in users is a calming effect. Thus, parents experience reduced hostility in situations which otherwise may result in an abusive action against a child. This is the opposite effect of alcohol where I have witnessed users become more hostile and abusive while subject to its effects. Marijuana use by parents may reduce neglect or abuse of children while the criminalization clearly has numerous deleterious effects on the well-being of children.

The illicit marijuana trade is a beautiful market. Participants in this market apply the supply and demand dynamics to effectuate the free market price within the confines of artificially elevated range produced by government regulation. Due to the government regulation of marijuana, specifically criminalization of production, distribution, and possession, the product supply and distribution conduits are diminished while market demand is elevated which produces the artificially elevated prices.

The desire for on-demand delivery is substantially increased because possession itself is unlawful and end users want to be in possession of the product for as little time as possible. The production facilities are also limited due to the prospect of incarceration for the producers. Often facilities are located a great distance from end users which requires additional distribution personnel and expense. The pool of distributors is likewise reduced due to the threat of incarceration for periods much greater than for those of possession. All of these factors unite to artificially inflate a price for an herb, that would otherwise be priced about the same as parsley, to a factor many times higher.

This opportunity for huge profits to be made on the spread between plant growing costs and end user price has not gone unnoticed by numerous entrepreneurs. The most formidable of these have been the large drug gangs or cartels which are organizations comprised of individual members of this competitive market who are bound together by an unlawful non-compete agreement[fn3].

Drug gangs may use physical force to reduce or eliminate competition from non-members or other gangs within a protected territory. This is for the purpose of controlling supply distribution to keep prices high. When gang members engage competing gang members or individuals over territorial violations they often do so with deadly consequences. These battles may take place at the immediate location of distribution which result in harm or death to innocent bystanders. Additionally, disputes between buyers and sellers may result in violent actions affecting innocent bystanders.

This harm to the innocents is the direct result of the criminalization of marijuana. HERE I provide the mathematical equation that demonstrates how this harm was deliberately caused by those who prefer criminalization of marijuana. It is this phase which also produces another realm of profiteers. The MHPs who may treat the anxiety of residents affected by this street fighting. The pharmaceutical company who sell the drugs to treat anxiety. The security companies who may provide electronic or personal monitoring of property. The manufacturers who produce the hardware to protect against uninvited entry. The healthcare workers who treat the injured. People from all of these domains can be heard to rationalize support for marijuana criminalization in one way or another. But what they are really saying is I make a living this way and I don't want it to change. It is therefore up to those of us who value the lives of children and other innocents over their greed to force the change.

I have watched with interest and provided testimony and numerous reports to our legislature relating to the rights of individuals regarding sexual preferences and the legislation associated with such. It is from the effective measures used by the LGBTQ community that I have gleaned some ideas applicable to marijuana decriminalization.

So what am I doing financially to combat those forces who seek to harm children through marijuana criminalization? My first mode of attack is to boycott businesses who have a policy of dismissing employees who test positive for marijuana but not firing those who are positive for alcohol, nicotine or caffeine. They are clearly discriminating against people who choose a particular dopamine activator over another solely based upon a social parameter and not performance based observations. It is only slightly tedious to check websites or call and ask. I would like for someone to compose and publish a list of those nationally who engage in this discriminatory practice. If you know of one that exists please send a link to me.

The second thing I do is to financially reward those who have been punished by this insidious scheme or those who seek to end it. When I list something for sale such as my Craig's List postings I include the following message. "20% DISCOUNT if you provide a copy of your abstract of conviction for any marijuana related offense or a letter from a legislator acknowledging your support of ending marijuana criminalization. Just give it to me as you would cash." Similarly, I do the same for the various professional services I offer.

This is a way of hitting those who support marijuana criminalization financially which for them is what counts the most. I would like to see more individuals and businesses offering a similar financial incentive for those who have been the victims of unwarranted persecution by the profiteers or those who wish to end the discrimination. The windows of businesses should display messages about discounts to those convicted of marijuana offenses or decriminalization activists much the same as discounts are offered to senior citizens.

If you agree that this is a good approach to combating those who deliberately inflict harm through marijuana criminalization then please consider doing the same as I have done and also share this idea with others.

1] Fowler IL., Carr VJ., Carter NT., Lewin TJ. Patterns of current and lifetime substance use in schizophrenia. Schizophr Bull.1998;24:443–455. 
2] Wenk, Garl L. Ph.D., "Caffeine is a gateway drug to cocaine", Psychology Today, psychologytoday. com, February 13, 2015, retrieved 17 Ma7 2017.
3] The Sherman anti-Trust Act of 1890 "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . . " 15 U.S.C. § 2

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©2008, 2017 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Monday, May 15, 2017

Remarriage, step-parents, and the best interest of the child

The term "step-parent" appears to me to be ill-defined, loosely used, and often lacking consideration for the interest of the children. Words are impactful. Their proper use can provide clarity of meaning and understanding while their misuse can lead to confusion and myriad misgivings. The application of the term step-parent can bring forth all.

In the technical sense adoptive parents are the most appropriate example of step-parents. These people have taken upon the role of parents for a child in place of the child's birth parents for the presumed purpose of serving the child. In these instances each birth parent either didn't accept, lacked the opportunity, or relinquished the role of parent. This necessitated having a couple step into the role of parents for the child. For convenience adoptive parents are simply labeled as "parents". Alternatively, "step-parent" and "parent" are also used as labels for someone who may have adopted a parenting role of a child whose parent has not relinquished the parenting role.

In post divorce situations a birth parent of a child may remarry. When this happens it has become perfunctory by society to label the parent's subsequent spouse as a step-parent. I contend, however, that such labeling can be flawed and misrepresents the role of the newly included adult.

Intuitively the label of step-parent has evoked some discomfort in my mind. My relationship to one particular family clarified my thoughts. After some years of the children being without a father the mother remarried. Her subsequent spouse was a man whom she knew from her youthful days. Although a fine person and an appropriate companion for the mother there was a missing element. The children still came to me with concerns appropriately addressed by a father. Although mother had remarried the children still appeared to lack a residential father figure.

It occurred to me that this man was the mother's partner. He was not a step-parent. Therein lies the crux of the dissonance which I have observed in many children in similar situations. The children observe the social norm of a parental partner being labeled as their new parent. The children may be instructed to call this person "mom" or "dad". Yet, the children still feel as though an existing birth parent substantially fills the role of mother or father, or that absent an engaged parent the new partner to the residential parent has not stepped into the parenting role.

In these scenarios the remarrying parent has not identified the subsequent spouse as not fulfilling a parental role of has obfuscated that need of the children. The parent has instead chosen a spouse to meet his or her immediate wants while not acknowledging the deficit.

Early this year I wrote Are you subjected to the language of societal scripts when objective assessments would provide better outcomes? where I explored the rote application of terms which are reinforced by society although the terms may be logically contradictory. As now, it was my intention then to encourage you to express ideas through meaning rather than rote recitations of common labels.

When it comes to the introduction of a new adult into the household objective language should be used to identify the role of that person. If the children demonstrate that the person fills the void of a parent then the "step-parent" and associated "mom" or "dad" labels may be appropriate. If, however, the children still have two existing people fulfilling the role of parent or the subsequent spouse is not fulfilling the parenting role then "partner" or a similarly appropriate term should be used.

All parties involved will be better served by accurately characterizing their relationship status. This reduces dissonance and conflict while facilitating a smoother transition through the changing family dynamic.

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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.

Thursday, May 11, 2017

Extensive litigation as a factor in reducing Indiana Child Support Payment obligation

An Indianapolis man had his weekly child support obligation reduced to zero dollars on Wednesday 10 May 2017 during combined hearings on child support contempt and modification of support obligation. This case has been extensively litigated. That protracted litigation was a factor in reducing the Father's support obligation.

While it is difficult to intertwine "briefly" into any aspect of this case I will attempt to briefly provide background as to support calculations. Parents divorced in 2009 and pursuant to an agreement in December of that year Father, who is self-employed, was to pay support in the amount of $100 per week. That amount exceed the ICSG worksheet computation. Parents were to share legal custody and parenting time on an equal basis. In Spring 2010 Mother filed for a modification of custody and parenting time.

Pursuant to that motion, in mid 2013 [yes it was litigated for nearly three years], the court imputed Father's income and set his support obligation at $143 weekly. Father appealed both the support and parenting time and custody decisions. The appellate court upheld the parenting time and custody decision but vacated the trial court's support order reasoning that income was wrongfully imputed to Father. Father sought rehearing and transfer of the parenting time and custody decision but was denied on both. The court subsequently reset Father's child support payment obligation to $83 per week.

In Fall 2013 Mother filed a Motion for Rule to Show Cause, alleging that Father was in arrears of his child support obligation, in which she sought jail time. At the onset of the hearing Father moved the Court to appoint pauper legal counsel to represent him in the hearing. The motion was denied, Father was found in contempt, ordered jailed but suspended upon compliance, and a compliance hearing date was set. Father appealed and the Indiana Court of Appeals vacated the contempt finding and remanded to the trial court to conduct an indigence hearing and appoint counsel if Father is found to be indigent.

In Fall 2016 the court rescheduled the contempt hearing and set a hearing to first determine if he was indigent. In the interim two years Father filed suit in a matter related to the case but that suit was ultimately dismissed after numerous hearings. Father appealed and again sought rehearing but it was denied.

During Father's hearing on contempt Father raised an objection. The prosecutor conceded the issue reasoning that if they proceed over his objection "we will be back here again" because he will appeal it and likely win. The hearing was rescheduled and Father was appointed counsel to represent him. Father then filed a Motion to Modify Child Support Payment Obligation. The Court set it to be heard concurrently with the contempt motion.

To be found in contempt of court for non payment of a child support obligation a four prong test is applied; 1] That a lawful order was issued; 2] that the alleged contemnor was aware of the order; 3] that the alleged contemnor had the ability to comply with the order; and 4] that the alleged non compliance was willful.

It was Father's position that his income was insufficient to meet the child support payment obligation and therefor his non-compliance was not willful. Additionally, Father reasoned that if he couldn't meet the obligation then the amount ordered to be paid should be modified lower because it was unreasonable.

Father's basis for claiming that his income had been reduced to a point to where he was unable to pay any support was the extensive and protracted litigation that he had endured over the past seven years. Throughout over 90% of the proceedings Father was self-represented. Father tendered summaries of the time he had spent on researching law, preparing documents, and attending hearings. In some of the years this was nearly 1000 hours.

While some of the litigation was initiated by Father most of that was invited by Mother who on one occasion was found to be in contempt of the court's custody order by changing which school the children would attend after being specifically instructed by the court to not do so.

At one hearing Mother revealed that she had lived with her mother for awhile so she could build up a $20,000 war chest in which to fight against Father in court for full custody of the children. Mother also complained that she had spent that money, wanted a new car, and wanted Father's support obligation doubled so she could buy a current year car and have more money to pay her attorney.

The matters came on for hearing on Wednesday 10 May 2017. Father was represented by pauper counsel for the contempt portion of the hearing.

Another point to make before getting to the details of the hearing is that although the parents were ordered to share in the costs of extra-curricular activities of the children, Father has solely bore these costs and been the parent facilitating the activities.

During the modification portion of the hearing, which the judge chose to hold first, Father proceeded to argue to impute Mother's income. Mother had been a school teacher but chose to quit that job and instead is working year-round for about two-thirds the pay with substantially less benefits. When asked if she quit or was fired she replied that she voluntarily left teaching. When asked why she barked, "I am not going back into teaching." Father posited that Mother was voluntarily underemployed and her income should be imputed to her former earnings level. The judge chose to not impute income to Mother.

At first blush this appears to be a setback for Father but it actually provided valuable support for him. The ICSG state that parents should not be forced to base earnings decisions on maximizing child support obligations.

In a prior hearing on support contempt a different judge told Father that he should quit working for himself because that obviously wasn't producing enough income to enable him to pay the ordered support amount.

During the immediate hearing Father made a two-prong argument for basing his earnings level at what he actually reported to the Internal Revenue Service. First, was that his current trade was the same as it had been during the entire time following divorce and it was during the time from about mid-point of the marriage until that ended. Thus, unlike Mother, he did not voluntarily reduce his income but rather, partially due to market fluctuations he had experienced a reduction in income for some years but that had reversed. The second, and more significant, basis was that the extent to which Mother has been litigating significantly impinges upon his availability to work.

As most of Father's business overhead costs are static there is a steady break even point -- about 700 hours per year -- that once passed produces almost entire profit from his billable time. In recent years his potential earning time has been cut nearly in half by litigation. Much of the time spent was due to Father's initiation of actions, particularly the appeals. But these were at Mother's invitation. The imputed support which was reversed by the Indiana Court of Appeals was copied verbatim from Mother's proposed findings of facts and conclusions of law. The separate lawsuit related to the case could have been preempted had Mother not chosen to acquiesce the offense. The contempt hearing in which Mother requested jail time proceeded at her request even though Father's right to counsel had been unlawfully denied. Mother had also been found in contempt of the custody order. Mother also engaged in other dilatory tactics which were again exposed at the immediate hearing when she acknowledged that she had not provided a financial declaration to Father even though he sent an email to her requesting such. By losing half of his available employment time to litigation Father didn't lose half his income but, because of the static overhead costs, it was about 75%.

The judge found that Father was not voluntarily unemployed but that his underemployment was due to the protracted litigation. The judge then calculated support based solely upon Father's tax returns and reported business income and Mother's current employment income. This resulted in a negative eighteen dollars for Father. The judge said he was deviating from the guidelines and ordered zero dollars retroactive to the date of filing for modification. They then proceeded to the next portion of the hearing.

The contempt portion of the hearing was unexpectedly brief. As the Mother and State were the moving parties it was their obligation to proceed first. The zero dollar support order presents the interesting fallacy of the alleged violation of paying nothing. However, the alleged contempt covered an additional two years preceding the modification. Father's proposition would be that his income was insufficient to meet the child support payment obligation and therefor his non-compliance could not be willful. As support had been set to zero based upon Father's earnings during the alleged contempt period then this was a de facto preemptive finding that Father couldn't meet the obligation. The prosecutor realized this and essentially opened by saying I guess the matter is moot at this point. That ended the contempt portion and closed the hearing.

Two interesting side notes are worth mentioning because of a potential psychological effect they may have on the judge which are related to my most recent posting about creating bias in the mind of the judge through little things -- Preparation, Experts, Trial Procedure and Risking your Parent-Child Relationship in a Custody Hearing. Father initially referred to the prosecutor as "madam prosecutor" and was told by the judge that calling her by name would be fine. Father responded that he did not know her name because no appearance had been entered by the prosecutor. The judge asked if he was sure and he responded that he never received one in the mail so he checked the CCS online to see if he could see from the entry the name of the person who filed it but there was no entry for it. The judge seemed disturbed by this and queried the prosecutor who snipped, "we are understaffed and overworked .. we really don't have the time for that." The second housekeeping or technical issue was when Father was asked what he proposed as a support amount. He responded that he had not completed a Child Support Obligation Worksheet because Mother had never provided a financial declaration to him. The judge responded that the proceeding could be halted and continued to a future date after Father has had time to review the document and make any inquiries as may be necessary. However, both Mother and the prosecutor already had copies. Father stated that he did not want Mother to have to take another vacation day from work to come back nor did he want everyone else to have to return. After a few moments of review by Father the hearing resumed.

In both scenarios Father demonstrated that he was prepared, reasonable, and accommodating. These are the types of traits which create favourable bias in the mind of judicial officers. This is why my primary focus with clients is cognitive behavioural therapy. I have seen strong cases crumble because the parents presenting them behaved like asses in the courtroom. Judges have wide discretion in making their rulings and when it can legally go either way bias will likely play into the decision. Attitude counts in support or custody hearings.

When it comes to modification of the child support payment obligation Indiana Code 31-16-8-2 provides access in two ways. The first, "upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable" is often neglected by attorneys. Alternatively, attorneys who are attentive to it may reject this mode when the argument is that the amount is unreasonable for whatever reason but the circumstances have not changed substantially. However, this burden can be overcome. This is because the ICSG are rules of court. As they are quasi-procedural in nature then they become law because it is a function delegated to the Indiana Supreme Court by the Indiana General Assembly. Thus, any resulting conflict which exists between the ICSG and the statutory law fall in favour of the ICSG.

The ICSG provide myriad factors which judicial officers should consider when making calculations and give particular note about calculating the income of a self-employed parent. The guidelines also stipulate that parents should not be forced to make employment decisions based upon maximizing income. In the immediate case this judge accepted the argument that no income should be imputed to Father because doing so would be forcing Father to work to his maximum earning potential in lieu of pursuing his constitutional right to pursue redress of the errors made in previous court hearings. This included one in which he was unlawfully sentenced to a jail term.

In conclusion, this case accomplished what numerous attorneys have claimed can't be done; getting a modification without meeting the statutory requirements. Father's income has been significantly diminished over the preceding seven years due to protracted litigation. That has not changed. Father's income has instead been imputed to what he would likely have earned if working full-time or, at one point, to an arbitrary point that had no basis in evidence. What did change is the application of judicial discretion. This judge accepted that time spent involved in litigation can legitimately be deducted from employment time without imputing earnings. This judge also followed the ICSG, which trump statutory law, by not requiring Father to work to his full potential.

While this ruling cannot be used as precedent it should be viewed as a valid novel approach to overcoming unjust child support payment obligation orders when income has been imputed. It should also be a reminder that there are self-represented litigants who continually outperform the well trained attorneys. Finally, it reinforces a point which I have advanced to clients, including this one, ad nausea which is that attitude and behaviour matter because they can affect judicial bias.

This is a ruling that will clearly benefit the children because Mother has already demonstrated that she won't contribute financially to the children beyond meeting basic needs while Father has demonstrate that supporting the children beyond basic needs is a priority even after losing 75% of his income.

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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.

Tuesday, May 9, 2017

Preparation, Experts, Trial Procedure and Risking your Parent-Child Relationship in a Custody Hearing

This past weekend as I took a respite from outdoor activities while the temperature plunged toward the freezing mark I watched the movie The Judge which I had received a day prior. A scene in this movie stimulated my thoughts as to the potential negative repercussions of not preparing one's self and becoming informed before advancing a position. Particularly as I have seen it played out in child custody cases.

The movie centers upon a sitting judge [Robert Duvall] who, apparently unbeknownst to him, strikes a cyclist with his vehicle while driving home one rainy evening. When he is discovered as the perpetrator of the homicide he is charged with a criminal offense. He is released from custody and soon appears for a preliminary hearing in which it is determined that there exists probable cause for the charge and the matter is set for trial. At the conclusion of the hearing the judge states that, "The Court finds probable cause to hold this over for trial. Jury selection will begin one week from today." I resisted the urge to remove the disc and toss it in the trash. I suppose I can look upon it the same way as one simultaneously hears and sees the explosion of the Death Star in Star Wars which itself has two problems[fn1]. Still, it is a huge blunder to see trial procedure so grossly misrepresented.

Before I analyze trial procedure let me inject this information. Screenwriters or movie producers often gather background information for a movie by observing real-life scenarios related to the subject of the movie or they hire an expert to advise on the subject. In a movie about a surgeon a former surgeon may be hired to advise on the medical procedures as well as names of the implements, design of the operating room and who would likely be in the operating room during the procedure. This gives the movie authenticity because it accurately portrays what which would occur had the fictionalized account been actual.

An objective in movie producing is to draw the viewer into the film. Ultimately, it is to relieve the viewer from consciously knowing 'I am viewing a movie' to that of a casual observer. This is why some directors choose to not have opening credits or may delay them until minutes into the movie. The films in which a viewer has a visceral response have achieved bringing the viewer to a participant level.

In viewing a movie about a fictionalized murder trial I rely upon my experiences of attending trials to weigh the accuracy of the movie. I have attended three murder trials of people I know but will use a felony trial of mine for analysis as I am more familiar with the time-line there.

Nearly immediately following arrest was the bail hearing. That was followed by the arraignment which included an opportunity for a preliminary hearing: a hearing to determine whether there was enough evidence to require a trial. This is often waived as was by me. Please, take me to trial. A trial date was set which was about four months out. Prior to that an omnibus hearing[fn2] was set.

We were given deadlines by which our requests for discovery, exchange of witness and exhibit lists, and pretrial motions must be made. I filed a motion in limine[fn3] which did not require a hearing.

As I had demanded a jury trial the court summoned a jury pool by sending notices to potential jurors about a month in advance of the trial. The list was provided to the prosecutor and me a week before trial so we could initiate any background investigations we wished to do.

As the trial week approached I publicly distributed notices inviting the populace to attend my trial in which corruption by the prosecutor and judge[fn4] would be exposed. When the prosecutor got a copy he gave it to the judge who immediately canceled the trial and rescheduled it to eight months out.

In the intervening time the prosecutor filed a motion for a hearing on the evidence as I had 33 witnesses and 600 documentary exhibits. That hearing lasted eight hours which resulted in some of my exhibits being reduced to summaries as they were similar. This would keep the jurors from having to read all 600 exhibits. This hearing also served as another omnibus hearing. It was determined that due to the number of witnesses and issues presented that the trial would likely last between three and five days. A fourth trial date was then scheduled to accommodate the anticipated length of the trial.

Two years after my arrest the then current prosecutor[fn5] on the case filed a Motion to Dismiss which the judge granted without hearing. I countered with a Motion to Reinstate in which I alleged that the prosecutor's motion was structurally deficient, did not comport to the Indiana Rules of Criminal Procedure, should be denied in its entirety, and that the charge should be reinstated and a jury trial date set. My motion was denied.

My case is an aberration due to some complexities that do not occur in most trials. However, murder trials often follow a similar chronology including the omnibus hearing, pretrial hearings, motion deadlines, and jury notification. A jury trial in a murder case does not occur a week following an arraignment. Not in Indiana for sure. I have participated in trials in about 20 counties and never have I encountered a court that could schedule a murder trial within two months of an arraignment. The screenwriter missed it big time in this movie.

This brought to my mind the nuances of child custody cases. As I repeatedly state -- which is on my business card -- "Child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours." Parents are being judged on their whole as a person.

If this screenwriter had been involved in the custody case of a child who has a learning disability and would best be served by one-on-one education by a parent he could easily become the non-custodial parent.

I will use an example where the mother works full-time outside the home, father presents no adverse parenting qualities, and father is a screenwriter at home. Based upon these few criteria it seems that this man would best serve the child's needs. But, instead of a movie about the trial of a judge who caused the death of a man riding a bicycle, let's have him present a movie in which he portrays himself as the parent best suited to provide the intensive home schooling that could best serve his child. In his movie when it comes to the subject of education he portrays a scenario of him setting up how he could educate his child.

The pre-adolescent child has already been identified as having ADHD and a emotional developmental disability. Additionally, the child has been problematic and failing in school. The father's movie shows him preparing a den as a school room. It has a desk for the child, a stool for himself, a small chalkboard, a bookshelf with textbooks, and a daily schedule posted on the wall. Actors then portray father's education of the child. The child immediately starts fidgeting while seated at the desk and gets up a few minutes later much as has been described in reports by the school. The father is then shown wrapping duct tape around the child's ankles and the desk's legs and then chiding the child for getting behind schedule. Instructing the child then resumes and at the end of the day the child is shown demonstrating his newly learned knowledge and being congratulated by the father.

Anyone familiar with educating children who have these types of conditions can see the problem with father's movie which is so absurd that it even goes against the common sense of the layman. The message to the judge is that father didn't do his homework.

Mother then testifies that she has a room with a couch, bean bag chair, and a cushioned bench which the child may choose to use. She also scheduled a professional screening for language development of the child. Her curriculum schedule gives broad objectives for the day or week rather than hourly as father had done.

So what are the consequences of these opposing approaches by the parents in the mind of the judge as it comes to bias? It would be similar to that which I experienced about the screenwriter of The Judge. He doesn't know his subject nor what should be obvious to the layperson. Apparently, he was too lazy to briefly research the subject. Or it could be that he was too cheap to hire an expert adviser. But, maybe he isn't lazy or cheap but lacks the competence to identify the need for research or advice. If this guy makes such a blatant error early on then I am going to view anything he puts forth following that as being dubious or unreliable? As for mother she is seen as being prepared, adaptable and willing to accommodate the child's expected fluctuations in mood. Psychologically the underlying bias becomes that she cares for the child and will find a way to modify her schedule to meet the child's needs. Thus, although her time is more limited she would be best suited to educate the child and may ultimately be designated as the custodial parent.

In the ensuing custody hearing there may have been presented evidence that mother had been abusive in some way, she had no college education, and she had been previously treated for a mental disorder. Father presented his list of educational certifications, prior employment accolades, and numerous witnesses recounting pleasing experiences between he and the child including participating in events at the child's school. This may all be for naught if the judge has already developed a bias the father is naive or too rigid in his thinking for the child.

The overall message I want to convey today is that when preparing for a child custody hearing that it is more important to focus on what you don't know rather than what you do know. Child custody decisions are more prospective than reflective. That is, a judge is placed in the position of deciding who is more likely to be most beneficial to the child in the future rather than reflecting what has been done in the past.

In and of itself the mistake of saying in a movie that a murder trial will commence with jury selection a week after the arraignment may seem like an innocuous oversight. However, such a fault early on in a child custody proceeding though can have dire consequences. It is important to be able to identify what you need to know and when to do your research or consult with the experts.

When it comes to the movie The Judge I don't see the screenwriter as being invested in his story. Don't let a judge see you as not being invested in your child just because you make one technical blunder.

1] Sound travels through room temperature dry air at a speed of 343 meters per second while light travels at a speed of around 300,000,000 meters per second. The difference in these stimulus reaching us is easily perceived at any distance greater than 100 meters. The second problem is that unlike light, sound waves must travel through a medium that impacts the ear drum. The vacuum of space does not contain a medium that can transmit sound.
2] An omnibus hearing is a pretrial hearing. It is usually soon after a defendant's arraignment. The main purpose of the hearing is to determine the evidence and the course of the trial The prosecutor and the defendant attend the hearing to discuss pretrial matters pertaining to the case. This may include setting a time table for discovery and exchange of witness and exhibit lists.
3] A motion in limine is a motion filed by a party to a trial which asks the court for an order or ruling limiting or preventing certain evidence from being presented by the other side at the trial of the case. Generally, this motion is filed in advance of the trial, but a motion may be entertained by the court during a trial, before the evidence in question is offered. The purpose of this motion is to prevent the interjection of matters which are irrelevant, inadmissible or prejudicial.
4] Justice Steve David of the Indiana Supreme Court who sat as judge of the Boone Superior Court for this case.
5] My case was considered a hot potato which was prosecuted initially by a deputy prosecutor and then the elected prosecutor in Boone County, then a special prosecutor from Clinton County was assigned who withdrew after the hearing on the evidence and then it was assigned to the elected prosecutor in Hendricks County who filed the motion to dismiss.

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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.

Friday, May 5, 2017

Why some Parents Should be Non Custodial Parents

On my business card is the statement, "Child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours." This is the axiom to which I hold and is why I provide behavioural therapy designed to strengthen the parent-child relationship, mitigate conflict between parents, and demonstrate parental fitness to judicial officers.

In over ten years of doing this I have had the opportunity to encounter many parents and serve the needs of quite a few. As the motivations of parents seeking my help are quite broad and the requests far exceed my availability I first require the completion of an application for services. On the application I ask for the contact information of a person making a referral. I do this so that an attorney, other MHP, or professional who has had an opportunity to interact with this parent can attest to his or her credibility. This is followed by an extensive questionnaire and then an initial interview. Few people make it past the application process.

The most common basis for not providing services is a parent's failure to complete the application process. Then there are those who are not motivated to serve the best interest of their child but are instead seeking an additional resource whom can assist in their war with the other parent. Some are so hostile and self-centered that they clearly should not be a custodial parent and supervised parenting time may be appropriate. It is this type of person which is my focus in this posting.

The Indiana Code[fn1] provides that judicial officers consider what is commonly referred to as "the eight factors" when making child custody decisions. Those are;
(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.
In addition to these factors there is another which I have found through my discussions with them that most judges include. This is the general demeanor or personality of a parent.

Parents who demonstrate hostility in any forum, contemptuousness for the court or its processes, score keeping, or a generally negative attitude are viewed with disfavour by the court. What I intend in saying score keeping is those parents who measure financial outlays, transgressions, and calculate parenting time methodically without giving consideration to the welfare of the child.

In one case I saw a parent come into court after filing a Motion for Rule to Show Cause alleging among other things that the custodial parent had failed to provide clothing with the child[fn2] when sending the child for parenting time with the NCP. The judge was not pleased and did not find the custodial parent in contempt. While technically a violation of the Indiana Parenting Time Guidelines and subsequently the court's order when incorporated it amounted to petty score keeping.

In another instance a parent filed for a modification of custody based nearly entirely upon unfavourable behaviours by the custodial parent. Inclusive in the motion were allegations relating back to marital infidelity and other acts violating societal norms. What this father failed to do was demonstrate what had changed since the last custody order was issued and, more importantly, what he had done to improve himself and the opportunities he could provide for the child. What she did bad didn't make him better and again that type of attack is looked upon with disfavour.

As for an example of hostility I have the resource of my Facebook page and the contributions from Tami Sensmeier. Her comments were left under posts which I had made. Here they are;

Tami Sensmeier who gives a shit you two faces bastard

Tami Sensmeier yeah, ur full of shit, thatks for calling me back asshole

And from 04 May 2017 - Tami Sensmeier shut the fuck up shitbag, thanks for NEVER CALLING ME after ive left your sorry ass 15,000 messages

These comments are available to the public. I have no privacy restrictions on my page and my friends list is largely populated by parents involved in child custody cases. Sometimes both parents access my page.

Now doubt those are the ravings of a hostile person. I never received an application from her. Thus, there was no basis for me to call. Imaging having this person as a parent. What does the child of this person endure when he or she doesn't perform a task when requested. Imagine what a judge would think when he or she sees it. In a child custody proceeding it is relevant [see factor 6]. I long ago wrote about Social Networking sites making their way into the Courtroom and cautioned parents about what they post.

Whether a behaviour is directed to or involves the child is of no moment when a judicial officer is developing an opinion about the personality of a parent and the impact it may have upon a child. A judge seeing the words of Tami Sensmeier would rightfully conclude that this is a parent who is likely to berate a child and have a negative impact upon the child's emotional development and well-being. So I say it again; Child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours.

1] Indiana Code - Paternity 31-14-13-2; Divorce 31-17-2-8
2] IPTG Section I(B)(3)

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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

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