Stuart Showalter is a child custody policy advisor to Indiana state policy makers as well as attorneys on child custody cases. For parents he offers child custody based life coaching to help them maintain control of their lives, increase their fitness as parents and manage their litigation so they can truly serve the best interest of their children. He provides this Law Blog as free opinion on various issues. Reader submissions of topics are welcomed. Send to Stuart@StuartShowalter.com
Domestic Violence [DV] isn’t bound by social or economic classes, race, education level, population density, or even gender. Rather, it appears to be a construct of a society that encourages and promotes the concept that “might is right” which then tolerates violence between parents.
Yet, we do have a framework of laws intended to punish those who perpetuate violence against a household family member or intimate partner and is intended to protect the targets of their violence. Targets of DV may obtain a Domestic Violence Protective Order [DVPO] which is intended to bring about a cessation of or the threat of violence. But as violence and intimidation continue this method of addressing DV must be questioned.
I question today whether DVPO’s protect or, worse, magnify the violence or threat of violence, and if those laws and court involvement are all just efforts, resources, and time wasted. I use a recent case in Lebanon, Indiana as an example.
A perpetrator follows the other parent to a location at the opposite side of town and initiates a physical attack. The target returns home. Subsequently a unit from the Lebanon Police Department arrives there and the target is again threatened but the perpetrator is restrained by the officer. The perpetrator is arrested and charged with numerous counts including domestic battery.
Contingent upon release from custody is the issuance of a No Contact Order on behalf of the attacked parent and the infant who was also battered by the perpetrator. The parental target also obtained a DVPO. Child Protective Services sought to establish and facilitate parenting time between the perpetrator and the attacked infant. The prosecutor objected but eventually supervised visitation was established. Upon returning the infant from the first visitation session - which was in August - the perpetrator left two handwritten notes directed to the other parent tucked in the diaper bag of the infant. The No Contact Order was still in effect at that time.
The perpetrator has since been observed following the targeted parent and screaming an obscenity at him. Also at one point was videotaped burglarizing the home of the targeted parent. Additionally, for the past month the perpetrator has repeatedly sent text messages to the phone of the targeted parent including at one point when the phone was physically in the hands of a law enforcement officer.
Complaints were made to the Lebanon Police Department and the Office of the Boone County Prosecutor. Yet the perpetrator remains free to further harass and torment the other parent and get to see the child.
Part of the stipulation of being released on the perpetrator’s own recognizance is the requirement to refrain from illicit drug use and to submit to drug tests. Yet the perpetrator has subsequently tested positive for methamphetamine and refused to submit to further screenings.
Finally, at one hearing in the Boone Circuit Court, which issued the DVPO, Magistrate Sally Berrish ordered the targeted parent to sit next to the perpetrator.
So the question becomes should one even bother obtaining a DVPO or is it just a waste of time?
To do or not to do; that is the question.
The outcome in a situation like this is easy to predict. It is basic psychology that we should not want to be our practice but others have incorporated with their children. The child breaks a rule and is threatened with punishment but the punishment never comes even as the rule is repeatedly observed being broken. From the child’s viewpoint there is no consequence to his unruly behaviour. Thus, it is likely to continue and increase in severity.
So what if a DVPO wasn’t issued? Again, we go back to children. The child who hasn’t been caught violating a rule may still do so but will likely do so cautiously. There may be trepidation from the feeling of “next time I may get caught”. Or the unruly behaviour may cease as a result of “I best quit while I’m ahead”. There is clearly a different dynamic at play in the mind of one who has been repeatedly caught but not faced any consequence and one who has repeatedly not been caught.
As the actions of the perpetrator become more hostile and brazen the targeted parent has expressed a fear of remaining in this town.
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.
Domestic Violence is a crime that falls into a special class based upon an uncommon dynamic between the perpetrator and target. Similarly, there are criminal or ethical violations which receive special consequences when the relationship is between a medical provider and patient or school teacher and student. This is because offenses within the confines of these relationships are a breach of trust and the parties have accepted responsibility of the relationship roles.
When a perpetrator targets or uses his or her child in a violent manner to achieve the ends of a Domestic Violence agenda then that crime should be dealt with in the harshest manner. Two Domestic Violence cases which occurred in Lebanon, Indiana in this month exemplify this point.
On 17 July 2017 Fox 59 News reported that a Lebanon man is facing two felony counts of domestic battery for allegedly striking his wife and son.
The wife complained that on 10 July her husband struck the boy twice with a charging cord to an electronic device and then began hitting and kicking her when she intervened to protect the child. She said that this was the most recent event of her husband's physical abuse toward her and their son which has been ongoing for multiple years.
This incident was apparently prompted by the child, who is age 3, wanting to play with his tablet which was not charged. The boy was told that he couldn't because it was being charged. That is when he expressed his impatience by getting upset and pulling the charging cord from a wall.
This apparently enraged the husband who, according to court documents, “became angry and took the charger from (the boy’s) hands and then struck (the boy) twice,” as if it were a whip. He then directed his attack toward the wife by hitting and kicking her.
The wife indicated that she never contacted police because her husband threatened to take the child and leave for Mexico, and she would never see him again.
You likely didn't hear the story of a similar incident which occurred on 15 July 2017 which was allegedly perpetrated by a Lebanon woman.
That involved Elissa Summers, the embryonic host and birth parent to a boy who is eight months of age, allegedly attempting to physically attack the child's father in the child's presence at their home and harming the child during that attempt.
Her first attack of the day occurred away from the residence when she repeatedly struck Father in the back as witnesses looked on and encouraged her to stop the assault. The subsequent incident occurred at Father's house where he cohabited with Ms. Summers.
This happened as a Lebanon City Police Department officer was attempting to get a statement from her in regards to the earlier attack. When Father arrived home Ms. Summers became enraged and spewed forth a verbal tirade laced with obscenities toward Father and another resident. As witnesses looked on she tried to push her way past the officer.
According to witnesses I spoke with, as she was being restrained by the officer she threw the baby to the ground, apparently to divert the officer's attention by having him check on the welfare of the infant. As Ms. Summers attempted to again physically attack Father the officer attempted to restrain her. She then battered the officer who called for back-up and she was subsequently placed under arrest. This was not before she snatched the baby off the ground, fled into the house and proceeded to destroy items for use by the baby along with smashing jars of baby food against the walls.
At this time she is being held in the Boone County Jail without bond. A Domestic Violence Protective Order has been issued on behalf of Father. Additionally, the prosecutor has issued a No Contact Order against Ms. Summers on behalf of the baby and Father.
It was not uncommon for police to be at the residence as there had been three previous police responses in the recent past upon her request. There was an open CHiNS case at the time of this latest incident based upon an allegation Ms. Summers made against Father two weeks earlier. However, that allegation was determined to be unsubstantiated when a Lebanon City Police Department officer heard one of Ms. Summers older children make a statement contradicting what he said while in her presence. After further investigation it was determined that Ms. Summers had coached the children to lie.
The Boone County Department of Child Services has placed the boy with his father and is recommending that Ms. Summers parental rights be terminated along with the two older children she has by a different father. The Termination of Parental Rights proceedings will be quite familiar to her as she has already lost custody of four other children in four previous actions.
These incidents both convey the severity and trauma of Domestic Violence. Here, it is the use of children and infliction of physical harm toward them to coerce a trusting target into complying with the desired objectives of the perpetrators.
This is a crime that has victims. People are harmed both physically and psychologically. This is not a status offense such as those proscribed in the marijuana trade where no victim exists. Consequently, society would be better served by resources being devoted toward remediation of Domestic Violence offenders.
That young boy learned to defy his mother and yank the charging cord out of the outlet from someone near him. He also learned that when someone doesn't do as you wish then the appropriate response is to physically attack that person. In both incidents violence was directed toward small children. I have previously written about violent parents in Societal Acceptance of Domestic Violence Against the Most Vulnerable.
I am not an advocate of punishments. I find that case specific consequences are more effective that static punishments. In these cases both perpetrators should face jury trials. The common fare of plea bargains to probation is not appropriate. Society benefits by the jurors personal exposure as well as the potential media coverage. The perpetrators are forced to confront their actions and must attempt to defend against what has no defense.
If convicted they are under the coercive control of the court as well as Child Protective Services. They should be removed from the environment in which they caused the harm and the people whom they harmed. These restrictions should remain in place until such time, if ever, that they can demonstrate a high likelihood that a similar offense would not occur again. Violation of those conditions may warrant incarceration or termination of parental rights.
I have expressed these sentiments to our county prosecutor. The next step is up to him. These alleged offenders may face a jury or these alleged perpetrators can be told it's no worse than speeding; pay a little money to the state and all is well.
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.
When I encounter a parental archetype that relates to child custody, especially who not to be, I endeavor to share anecdotal accounts so you may contemplate the outcome of his or her experience. By not having to learn from personal experience but, instead, by example you and your children may benefit from those shortcomings of others.
For this latest example it is helpful that you have a working understanding of the personality of this character. I will first provide an account of the encounter and then a situation that should encapsulate the psychological make-up of the parent.
Midday Friday I set up camp with a book buyer in the parking of a book distributor who was having a sale the next day. Of the thousands of people who attend we managed to be first in line. That evening we were joined by some of the ten other people he employs to assist him. That evening during the course of general conversation a man so employed mentioned something to the effect of gender bias in the application of Indiana's Civil Protection Order Act.[en1]
His claims ran the usual gamut of long ago dispelled notions. This included that the DVPO was unconstitutional, that it transferred property without hearing or due process, that the exclusion of an owner of property from the real property was the criminal act of conversion[en2] , that men are ordered to pay child support -- even if they go to prison -- and can't get out of it, that women never have to pay child support, and, of course, that parenting time should be 50/50 and deviations from that are an unconstitutional abrogation of a father's rights. The claim that the 13th Amendment was unconstitutional and we don't legally have to pay federal income tax was probably in there too.
My arguments to the contrary were met with broad disputations not on point to my claim but rather generalized to a constitutional argument such as the "general welfare" clause[en3] or that the "corrupt courts" were biased against fathers.
Two things occurred to me at this point. The first being that it was highly probable that he has not watched child custody or DVPO proceedings in at least 50 different courts throughout Indiana. Secondly, and more notably, this is the guy to which the book seller has occasionally mentioned over the past three or more years as a friend who is "going through a horrible custody battle" and could use my assistance.
At this point I should have painted a clear image in your head of this person. The one who broods about his situation, attributes fault to others, and may post on Facebook ad nausea about his case. It's a personality trait which is considered a deficiency in the wellness schema for fit parenting.
Here is how the book sale goes. We go into a pen that houses a grid of about 200 crates containing 500 or so books each. Our group spreads out in a preplanned course in pairs or trios. There is a picker, such as me, who decides which books to purchase. Then there is a packer who receives the books or is told to pull them from the bins. This person or another may act as a runner who takes the books to a check-out area and then returns with another empty packing box.
The particular parent who is the subject of this posting mostly acts as a picker but floats as needed. After accumulating about 2000 books [80 boxes] we were done and all proceeded to check-out. Well not quite all. One person wasn't there.
During the frantic rush as we pour over these books each of us comes across a few titles that we want for ourselves. For efficiency those get tossed in with the books for the book seller. Well, instead of being at check-out with the others, someone was off at a staging area sorting through about 10 boxes which had not been taken to checkout to be tabulated.
While nine employees stood by idly the book seller complained to me that he needs to get those 10 boxes to check-out and we will sort through them at the shop. So I go tell our dear protagonist to get the boxes to check-out so we can get going. Further, that he will be able to retrieve his titles at the shop when we sort them there.
The response to me was simply put, "No, I am not going to do that. That doesn't work for me. You can just wait, I am going to get my books out here." The result is that the book seller is paying 10 employees an hourly wage for the time this guy picks out his books.
Well, I have never been to a hearing involving this guy. I have never seen the custody order, the petitions, or the CCS. I don't even know who the mother is or anything about her. I haven't been contacted by him for his necessary counseling.
But there is one thing I do know about the case. That this custody case, which began in the womb, continues to this day because he insists that it do so.
At this point, if you have observed my previous admonitions, you can imagine the proceedings and identify the major contributing factor to the ongoing high conflict. This man is a child parading as a parent who when he doesn't get his way is going to take his toys and go home. But the "toy" in this case is a child under the jurisdiction of the court. What that means is that court procedure is applied and done so [or supposed to be] according to statute and applicable case law.
It is the absence of a judicial officer conducting the proceedings according to statute and applicable case law -- as is supposed to be the case -- which perpetuates the conflict. That is the perception of this father as I have observed. However, his position that the general welfare clause is applicable to protection orders and that he hadn't heard of Lambert v Lambert[en4] relating to child support payments being reduced for incarcerated parents demonstrates his misapplication, misunderstanding or ignorance of law.
What doesn't go over well in these proceedings is the proposition that the judicial officer is a conspirator in a vast anti-father scheme, that there is a constitutional mandate to order 50/50 parenting time, that the court acts criminally, and that this is not a matter for a court to decide. All made without supporting evidence or historic reference.
The reason I long ago expanded from providing just trial strategy assistance and appellate preservation to providing cognitive behavioural therapy directed toward child custody proceedings in because underlying perceptions direct behaviour. That is, you act according to your thoughts.
If an argument is to be made in court regarding the custody or parenting time of a child then it should be valid and comport to established procedure and law. Courts are a venue for logic and law to be applied. Thinking otherwise is the foundation for behaviours destructive to a case. Philosophical arguments to the contrary should be saved for another venue like the legislature, academia or less formal popular culture. And while on the subject of philosophy our protagonist may be well advised to examine Heidegger's proposition that we are engaged in the world.
notes
1] IC 24-26-5 et seq
2] IC 35-43-4-3 A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.
3] Article I, section 8 of the U. S. Constitution grants Congress the power to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States."
4] Lambert v. Lambert,. 801 N.E. 2d 1176, 1180 (IN. 2007) Prior to Lambert, Indiana was one of the states that held the position that commission of a crime was a voluntary act which resulted in imprisonment and as such was voluntary underemployment. Thus, support payment orders should not be modified to reflect the reduced earnings during incarceration. The Lambert decision held that the decision to commit a crime was so far removed from intent to get child support reduced that it was therefore improper to base child support payments on anything other than current incarceration income.
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.
I have been accused of blaming a murder victim for her own murder!!!
While various ghouls and goblins make their rounds tonight seeking to fright there will be those who cower within their own homes for fear of the specter of Domestic Violence. On this day, the last in Domestic Violence Awareness Month, I present a proposal that I have sent to members of the Indiana General Assembly recently for consideration in the 2014 legislative session.
In 2012 I was contacted by Joseph Warnock, a prisoner at the Wabash Valley Correctional Facility serving a term for murder. The murder was that of his estranged wife, Angie, on 22 June 2009. This came after a period of time in which Mr Warnock felt like the “whole world was coming crashing down around me.” The trigger was the 18 June 2009 DVPO which forbade him from having contact with his children although nowhere in the DVPO petition that Angie filed did she allege that he had committed or threatened to commit any act of DV.
For Joseph the murder was the result of culminating feelings of frustration and helplessness. Likely, each of us has faced a moment of frustration where we say something hurtful to someone or destroy the object of our frustration. Be it an automobile, electronic gadget or some other manifestation of our technologically advanced society it seems that even when we are doing exactly as supposed to, and more often when we are rushed, these devices fail to perform in some way. We know that smashing them to bits would be therapeutic but would align us no better to our end goal than walking away. Even the most ardent won't-stop-and-ask-for-directions souls will break down at some point and place a call halfway around the world for tech support or just drop off the instigator of their frustration to a repair shop.
Imagine now that your estranged spouse is surreptitiously planning to relocate your children to Hawaii. You discover this through freight charges applied to your credit card. That on the Thursday preceding Mother's Day or Father's Day a judge orders that you are barred from contact with your children through a Domestic Violence Protection Order [DVPO]. To exacerbate your frustration and feeling of hopelessness you receive a text message that reads, “Face the music, you're not going to see the kids.”
In our criminal code we do acknowledge that while we are responsible for our actions and are to be held accountable there can be triggers that provoke us into these actions. Our legislature, aware of the disastrous effects that provoking someone can have, has added “provocation” [IC 35-42-2-3] to our criminal code. This does not provide an underlying offender with a mitigating factor for sentencing but is a separate offense, oft applied to the “victim” for instigating the underlying attack. Thus our legislature was aware that "victims" do induce an attack on themselves.
Joseph Warnock has stated to me, “I hate to say it but if [the judge] would have vacated the order that day, I could have seen and been with my kids that Father's Day, it probably would have prevented what happened.” This is not an effort on his part to diffuse blame as he also said, “I take and accept responsibility, it didn't matter what my wife was doing, I had lawyers, courts and judges I could have dealt with.” He has been contrite but also acknowledges the reality of the situation in saying, “I'm very sorry for what I did. It's all my fault, I definitely think the DVPO was influential in contributing to the murder.”
Joseph mentioned some resources that he could have accessed to help allay his frustration, but all are judicial in nature. When faced with the taunt of “you're not going to see the kids” coming just before Father's Day and knowing that their belongings have already been shipped to Hawaii the availability of the judicial process, slow as it is, is of no comfort. Instead an immediate outlet for frustration is needed. There needs to be a comforting ear that can listen to a parent's despair and help channel the frustration in an appropriate manner.
I propose that Indiana Code 34-26-5-3 be amended to include a requirement that courts attach a list of resource to the DVPO that could be accessed by the Petitioner or Respondent at anytime. This would include mental health counselors, police, legal aid and voluntary incarceration with all assistance being confidential and no payment or payment arrangement being required at the time of service. I sent the proposal to Mr Warnock who replied, “I certainly agree and love the idea of there being a resource list attached to the DVPO. What a tremendous idea, and that very possibly may have prevented me doing what I did. If I would have had in front of me places to call, places to help me deal with the stress that was involved with the situation, places to vent, etc. that very well may have made the difference.” It may even be better to require that a counselor at the county mental health department or an agency that serves the jurisdiction immediately contact the parties to open dialogue.
I don't want anyone to be subjected to the terrors of Domestic Violence. I especially don't want someone to be killed. The Warnock situation is most tragic in that on 22 June 2009 Angie and Joseph's daughters lost both parents to the effects of a hostile child custody battle.
Amazingly, I was personally vilified [which I am sure will continue] for my attempts to reduce acts of DV by addressing the matter in an open and honest way regardless of political ideology or financial motivations. In the Summer of 2009 I had never heard of Angie or Joseph Warnock. Two days after the murder, having only reading a newspaper account of the incident and relying upon my accumulated wealth of knowledge in the field, I made the following observation in a blawg posting: Often times children are withheld from the other parent as punishment for a perceived wrong. This is commonly done through restraining orders which in the majority of cases do not even involve an allegation of violence.
This is another case that demonstrates that a Protective Order does not protect and may actually lead to the death of a parent who was otherwise not threatened. In child custody cases every effort should be made to ensure that the children maintain healthy relationships with both parents. Not doing so cannot only damage the children but, as in this case, cost the alienator her life.
This is very strong language which I firmly stood upon and still hold to. This is not an effort to boast about my behavioural and personality intuition but, instead, is to note the well established relationship patterns between divorcing parents. It had been during the previous session of the Indiana General Assembly that I had been asked to give a presentation on false allegations of abuse and the affect on child custody proceedings. Thus these patterns were fresh in my mind.
Joseph has told me that he felt that Angie was using control of the children to punish him for a perceived wrong. In this case there was no allegation by Angie that Joseph had been violent or was a threat to her. [see page 12 of this document]. Joseph has repeatedly said that he is responsible but acknowledges that the DVPO was a contributor – “I'm responsible, but I think our system failed.” I referred to Angie as an 'alienator' – someone that tries to sabotage the children's relationship with the other parent. If getting a DVPO without cause – no allegation of abuse – then beginning the process of secretly relocating the children to what is effectively a foreign land, and finally sending the taunting message “you're not going to see the kids” is not alienation then I have misapplied the term.
Some will argue that Joseph Warnock must have been a violent abuser based upon the ultimate outcome. The more enlightened realize the power of self-fulfilling prophecy. This has been scientifically demonstrated through numerous experiments like the one by Rosenthal [1966]. In that, 18 school teachers among various grades were given a roster of their students along with corresponding IQ test results. There existed a statistically relevant correlation between the students' IQ and their subsequent testing results at the end of the year for all levels. However, researchers had randomly assigned IQ scores to the students. The performance of the students became consistent with the premise of their intelligence. This became known as the expectancy effect. The same outcome is often seen in juvenile justice. Children who are told that they are bad or criminals have a higher recidivism rate than those who are told they have value, are still learning, and simply made an error in judgment – condemning the behaviour not the person. Can a person be conditioned to reflect a particular level of intelligence, criminal behaviour or turn violent? Yes. Take a man who has not behaved violently, tell him that his is violent, remove him from his children and taunt him with threats that he will never see his children again and don't be surprised if the result is violence.
Divorce and contentious child custody litigation already produces enough stress and emotionally taxes the parents without inducing the additional feelings of betrayal and hopelessness that an unfounded DVPO can initiate. Parents in this situation don't need to be isolated to allow their subconscious to fulfill a script but instead need to be embraced by a system and community that shows that it cares about children.
Please contact your legislator and request that he or she support legislation to provide resources to parties subject to a DVPO.
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.
As a child custody policy advisor I have written and had child custody related legislation passed into law. My counseling of lawyers and appearances as an expert witness have helped them achieve more favorable results for their clients including winning appeals, gaining parenting time, reducing conflict, and mediating agreements. Additionally I made important contributions to the amended Indiana Parenting Time Guidelines that went into effect March 2013 and am currently formulating recommendations for the Indiana Child Support Guidelines which are to be amended this year. For parents I offer child custody based life coaching to help them maintain control of their lives and increase their fitness as parents so they can truly serve the best interest of their children.
