15 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Representative Kubacki, Chair of the House Committee on Family, Children and Human Affairs, has introduced a bill that will allow minors down to the age of 14 years to file for an order of protection using the Indiana Civil Protection Order Act [IC 34-26-5].
The synopsis of the bill is:
Minors filing protective orders. Allows a minor who: (1) is
at least 14 years of age; and (2) is or has been a victim of domestic or
family violence; to file an order for protection. Allows the matter to be
transferred to a court with juvenile jurisdiction. Allows a court to
appoint a guardian ad litem for the minor.
The bill is very concise. The amendments to the current act are to;
34-26-5-2 which provides that the persons who may petition for a DVPO include including a minor who is at least fourteen (14) years of age, and
34-26-5-19 which adds the second class of people to whom a GAL may be assigned.
(1) child of one (1) or both parents; or
(2) a minor described in section 2(a) of this chapter who files an order for protection under section 2(a) of this chapter.
In October of last year I posted about the Societal Acceptance of Domestic Violence Against the Most Vulnerable in which I noted the high rates of acts of Domestic Violence committed against children and the lack of a societal or legal response to these crimes. I applaud Representative Kubacki for seeking to give these most innocent victims an opportunity to protect themselves against violence occurring within their homes.
While I expect to hear arguments against this bill based upon the sovereignty of the home and family I do not feel that these have any legitimate basis. Existing statute which has all been upheld allows for criminal prosecutions for acts of violence against children within the family unit.
This bill has been assigned to the House Judiciary Committee. I urge strong support for this bill.
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. 
Wednesday, January 15, 2014
Minors Filing for Domestic Violence Protective Orders - 2014 Indiana House Bill 1014
Tuesday, January 14, 2014
Protecting Parental Rights - 2014 Indiana Senate Bill 100
14 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Senator Kruse has introduced a bill to provide broad protection to the right of parents to direct the upbringing, education, and care of their children. Here is the synopsis of the bill;
Protecting parental rights. Specifies that the liberty of
parents to direct the upbringing, education, and care of their child is a
fundamental right. Prohibits a governmental entity from infringing on
that right without demonstrating that the governmental entity's
governmental interest as applied to the person is of the highest order
and not otherwise served. Establishes the application of these
provisions to laws, rules, and ordinances.
Referred to the Committee on Public Policy which is chaired by Senator Ron Alting.
This bill provides the following new section 31-13-4 to direct government entities in regards to protecting the rights of parents in matters of government intervention affecting their children. The content of the new section is as follows:
Chapter 4. Parental Rights Protected
Sec. 1. This chapter applies to any state or local law, rule, or ordinance and the implementation of that law, rule, or ordinance, whether:
(1) statutory or otherwise; and
(2) enacted, adopted, or effective before, on, or after July 1, 2014.
Sec. 2. The liberty of a parent to direct the upbringing, education, and care of the parent's child is a fundamental right.
Sec. 3. A governmental entity may not infringe on the right described under section 2 of this chapter without demonstrating that the governmental entity's governmental interest as applied to the person is of the highest order and not otherwise served.
Sec. 4. A statute enacted after July 1, 2014, is subject to this chapter unless the statute explicitly excludes the application by reference to this chapter.
Essentially this chapter requires that a government entity must refrain from imposing upon a parent's right “to direct the upbringing, education, and care of the parent's child” unless the government demonstrates that the government's interest supersedes that of the parent. This bill does not per se create a new burden of proof but rather establishes a new element to the government's burden.
I strongly support this legislation.
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.
Monday, January 13, 2014
Summary Dissolution of Marriage following Domestic Violence conviction - 2014 Indiana House Bill 1014
13 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Representative Kubacki has introduced a bill that would allow a court to grant a dissolution of marriage in under 60 days following the conviction of one of the parties for an act of Domestic Violence. The synopsis of the bill is;
Dissolution in cases of domestic violence. Allows a court,
in a dissolution of marriage case, to: (1) conduct a final hearing; or (2)
enter a summary dissolution decree; at any time after a petition or
counter petition for dissolution has been filed if a party to the action
has been convicted of a crime of domestic violence against the other
party or against any child living in the same household as a party.
(Current law prohibits a court from conducting a final hearing or
entering a summary dissolution decree earlier than 60 days after a
petition or counter petition has been filed.) Requires the court to: (1)
conduct the final hearing; or (2) enter a summary dissolution; as soon
as practicable. Allows a family law arbitrator to enter a summary
dissolution decree at any time after a petition for dissolution has been
filed if a party to the action has been convicted of a crime of domestic
violence against the other party or against any child living in the same
household as a party. (Current law prohibits a family law arbitrator
from entering a summary dissolution decree earlier than 60 days after
a petition has been filed.)
A new section, 31-15-2-13.5 would be added to dissolution statutory scheme
Sec. 13.5. If a party to an action for dissolution of marriage has been convicted of a crime of domestic violence against the other party or against a child living in the same household as a party to the action for dissolution of marriage, the court:
1) may:
(A) conduct a final hearing under section 10, 11, or 12 of this chapter; or
(B) enter a summary dissolution decree under section 13 of this chapter; at any time after a petition or counter petition for dissolution of marriage has been filed; and
(2) shall:
(A) conduct a final hearing under section 10, 11, or 12 of this chapter; or
(B) enter a summary dissolution decree under section 13 of this chapter; as soon as practicable after a petition or counter petition for dissolution of marriage has been filed.
I certainly agree with the overarching principle underlying this bill, extrication from a violent relationship, but also have a due process concern. That would be the finality of the conviction. A defendant has 30 days from the entry of judgment to file a notice of appeal. If one is filed then a decision would likely not come in under six months. There may need to be an amendment to address this due process matter.
Such an amendment could read;
If a party to an action for dissolution of marriage has been convicted of a crime of domestic violence against the other party or against a child living in the same household as a party to the action for dissolution of marriage, and the conviction has not been challenged, the court:
1) may:
(A) conduct a final hearing under section 10, 11, or 12 of this chapter; or
(B) enter a summary dissolution decree under section 13 of this chapter; at any time less than 60 days but not less than 30 days after a petition or counter petition for dissolution of marriage has been filed; and
(2) shall:
(A) conduct a final hearing under section 10, 11, or 12 of this chapter; or
(B) enter a summary dissolution decree under section 13 of this chapter; as soon as practicable but not less than 30 days after a petition or counter petition for dissolution of marriage has been filed.
There is currently a pending bill to amend IC 31-19-11-6 which provides that a court may not grant an adoption following a termination of parental rights if that determination is under appeal. This follows the ruling by the Indiana Supreme Court in C.A.B. v. J.D.M., 992 N.E.2d 687 (Ind. 2013) that the grant of adoption without parental consent was a due process violation. Consent was not needed following the TPR but when that TPR finding was reversed on appeal the adoption became voidable and the trial court should have set aside the adoption.
I see the potential for such legal ping-pong occurring here following the reversal of a Domestic Violence conviction. A court may be forced to declare a dissolution void and thus “remarry” the divorced parties.
Finally, I see a contradiction in section 1 which authorizes [may] a court to take action and section 2 which mandates [shall] a court to take action.
The bill has been referred to the Committee on the Judiciary.
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.
Friday, December 6, 2013
Indiana Commission on Improving the Status of Children to meet 11 December 2013
07 December 2013
The third meeting of the Indiana Commission on Improving the Status of Children is scheduled for 11 December 2013 from 10:00 A.M. - 2:00 P.M. At the Indiana Government Center South. Members of the public are invited to attend but it is not a public input session.
The multi-branch statewide Commission is aimed at improving the status of children in Indiana. In cooperation with other entities, members of the State Commission on Improving the Status of Children will study issues concerning vulnerable youth, review and make recommendations concerning pending legislation, and promote information sharing and best practices.
I have a meeting with a Commission member prior to the session but will be available during the lunch break to anyone who would like to converse.
If you would like to assist in advancing child well-being legislation then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
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More information about my child custody and well-being policy efforts may be found on my LinkedIn page.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Wednesday, November 20, 2013
2014 Indiana Child Custody Bills to be considered
20 November 2013
Yesterday was Organization Day at the Indiana State House. Members of the General Assembly convened to set agendas and, as the name implies, organize themselves for the upcoming legislative session set to begin on 06 January and end on 14 March of 2014. Members have until that first week to get bills submitted. Getting an idea submitted as a bill was as easy as asking.
The four pieces of legislation that I am primarily seeking are;
~ Virtual Visitation - Provides for courts to order various electronic means to facilitate the parent-child bond in addition to in-person parenting time. Provides penalties for interference with the court's order.
~ Joint Custody Presumption - Parents in dissolution actions should be presumed to have been equal contributors to the wellness of their children. Requires a judge to issue findings as to why joint custody is not in the best interest of the child.
~ Domestic Violence Protection Orders - All parties to a DVPO should receive notice of and opportunities to receive related services. Mandates that an issuing court list county level support services on the order.
~ Civil Union Adoptions - This would amend the adoption laws to allow an unmarried household partner to the biological parent of a child to adopt that child.
Getting an idea introduced as a bill is a rather simple procedure. This is just the first step in the legislative process. For today it was arranging to meet with legislators and presenting my child custody proposals. The first meeting resulted in a senator saying he will introduce the bill. The day closed with a senator wanting to engage in further discussions. I was quite humbled by his statement that the Indiana General Assembly is fortunate to have me presenting such relevant child well-being issues.
I am not going to present specific details at this point but, thus far, one bill is going to be introduced. I have legislators in each house looking at another. I have meetings scheduled with legislators in each house for another. I need to get meetings scheduled for a fourth.
I want for you to understand the ease and importance of meeting with legislators. When I am there I am representing thousands of Hoosier parents and children. It is partially a product of mathematics. The total population divided by the number of people who show up to speak about the issue. Showing up at the state house is key. Legislators repeatedly tell me that appearing in-person carries the greatest weight followed by mailing a letter then making a phone call. Personalized e-mails are appreciated more so than form letter e-mails. Petitions carry little weight while on-line versions carry almost no weight. This is why some unscrupulous advocates promote on-line petitions opposed to their agenda – they carry almost no weight and prompt signers into complacency – having felt as though they have already contributed to the effort and then doing no more.
As the session approaches start forming your talking points and collecting your evidence in support of these legislative proposals. I will keep you updated on the progress.
If you would like to assist in advancing child well-being legislation or have ideas you want presented then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
Subscribe to this blawg.
More information about my child custody and well-being policy efforts may be found on my LinkedIn page.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Thursday, November 14, 2013
November 19, 2013 is Indiana General Assembly Organization Day for the 2014 Session
14 November 2013
Tuesday 19 November 2013 will be Organization Day at the Indiana State House for the 119th session of the Indiana General Assembly. The date and duties of Organization Day for the second regular session are proscribed by statute as follows.
IC 2-2.1-1-3 Sec. 3. (a) The second regular session of each term of the general assembly shall convene on the third Tuesday after the first Monday of November of each odd-numbered year. The general assembly shall then adjourn until a day:
(1) certain fixed by a concurrent resolution; or
(2) when the gavel of each house falls in the presence of a quorum whether or not a day certain to reconvene in session has been fixed.
Organization Day is an opportunity for members to meet in caucus and set their agenda for the forthcoming legislative session that begins in January 2014 and by statute is set to end no later than 14 March.
What is likely to be the most hotly contested issue will be the second offering of HJR6 which is the bill to amend the Indiana Constitution to define marriage as between a man and a woman. The bill passed in the 2013 session but must also be passed in a subsequent session before a public referendum. Other key issues may be:
~ Addressing funding and sentencing issues following the overhaul of the state’s criminal code passed during 2013 which left those two major issues open. Those are likely to be issues that should not produce much controversy.
~ Implementation of the Common Core Standards will likely be the subject of multiple bills. This has been and is likely to be a hotly contested issue as proponents and opponents battle over whether Indiana should advance an educational plan or a training plan.
~ Funding for a Central Indiana mass transit expansion may be an issue that could include a public referendum on proposed light rail service from downtown Indianapolis to the NE suburbs.
~ The Children's Policy and Law initiative is seeking to introduce legislation to interrupt the school to prison pipeline. The school to prison pipeline is a loosely formed system designed for schools to guide certain youth into the criminal justice system and ultimately prison.
~ Services for Hoosier veterans will likely be the subject of multiple pieces of legislation.
~ In 2013 there were numerous laws enacted relating to oversight or initiatives to increase child well-being including the creation of the The Indiana Commission on Improving the Status of Children
Fort Wayne attorney Casey B. Cox will be sworn in as representative for House District 85. Cox will fill the seat previously held by the late Phyllis Pond.
Members generally start arriving to the Indiana State House around 10:00am. The House will meet in session at 1:00pm while the Senate will meet at 1:30pm. The day general concludes around 4:00-5:00pm.
While not in session or caucus members are free to tend to their own business or meet with constituents.
Members of the public are invited to attend Organization Day so I encourage you to do so. If you are interested in affecting child well-being legislation and would like to meet your legislator please call me at 317.474.3143 or contact me by email.
If you would like to assist in advancing child well-being legislation then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
Subscribe to this blawg.
More information about my child custody and well-being policy efforts may be found on my LinkedIn page.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Thursday, October 31, 2013
Indiana Civil Protection Order reform - DVPO notice IC 34-26-5
31 October 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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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.
Saturday, April 20, 2013
Determining the Best interest of the Child: Domestic Violence Restraining Orders and Settlement Agreements
This is the second in a three part series of articles about the 2006 Published opinion in re: The Marriage of J.M. v N.M. There are three distinct issues that are covered in this case that will be of benefit to anyone experiencing contested child custody. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The first segment was about the use of third-party evaluators and mental health professionals in shaping child custody decisions. Today I continue with the use of Domestic Violence Restraining Orders [DVRO] in shaping child custody settlement agreements.
From the outset I again note that this is not a case where there have been unjust attributions to parental fitness. This is the type of case where the appointment of a GAL / CASA is a good thing. It is not so much that there is a conflict between the parents over parenting time, but rather, it is the potential endangerment to the child's physical and emotional well-being that is at issue. Of concern is whether the use of a DVPO is being used to achieve a modification of the child custody and parenting time order. I am currently looking for interview subjects who have been involved in cases alleging Domestic Violence.
Three months after preliminary reaching agreement to custody, parenting time and the appointment of a Guardian ad Litem the mother filed a verified petition for a protective order and a verified petition to modify parenting time. In the DVPO petition she alleged instances in which Father appeared to have consumed alcohol and forcibly, over Mother’s objection, took the child from the marital residence; berated the child after a soccer practice – severely affecting him; and displayed an explosion of rage in the kitchen of the marital residence. I have not seen the petition and am not aware of whether there were additional factual allegations.
Ten days later the parties presented the trial court with an agreed order for modification of parenting time. Signed by both parties, the order provided that Father’s parenting time would be supervised by Choices, “in a manner approved of by” the GAL, and that the parties would “follow the recommendations and requests of Choices and the” GAL regarding parenting time issues. The order also stated that Father denied the allegations in Mother’s DVPO petition, and Mother maintained that it was accurate, but that “in exchange for” Father’s agreement not to enter the marital residence unless invited by Mother and to “supervised parenting time at Choices,” Mother would dismiss her petition.
The American Bar Association in it's guidelines for judges making child custody decisions claims that “[c]ustody disputes can be a litigation tactic that allows the battered woman to be revictimized. A father may threaten to sue for custody, seek modification, or oppose relocation as a bargaining tool. He may discover that his wife may be willing to forego rights to child support and alimony in exchange for custody. For example, one study indicated that women reduced their requests for resources during negotiations when they were afraid that they might lose custody.”[fn1-emphasis added] It is not clear whether the original authors supported the ABA's proposition that only fathers could use litigation tactics in custody disputes but I think logic tells us that it is a gender neutral reality. I also find it interesting that the ABA's concluding statement in that paragraph makes no attribution to alleged Domestic Violence by the Father but, just as criminals are willing to forgo some freedom and plead guilty to a lesser offense, some women are willing to reduce demands for whatever reason.
The concern I have in this matter as it relates to the DVPO is that a person agreeing not to perform a legal obligation -- IPTG already says a parent is not to enter the other parent's home unless invited[fn2] – and accepting restrictions on parenting time does not make a true abuser less of a threat. In other cases, divorce attorneys have been known to offer to drop the allegation of abuse in exchange for financial concessions.[fn3] I consider mutual concessions in contested DVPO case agreements that do not involve some type of intervention effort for the alleged perpetrator to reveal either a non-meritorious DV claim or to be neglecting the welfare of the child. It's the equivalent of an agreement with a landlord to drop a health department complaint for leaking plumbing and mold if you get a covered parking spot and new carpeting of your colour choice. The agreement is not germane to the complaint: so how could the complaint be genuine? I caution judicial officers to look for these types of inconsistencies and to reject these agreements and, instead, hold an evidentiary hearing on the DV petition. To do less is to allow judicial economy – the settling of issues by the parties – to supersede the best interest of the child which is contrary to statute.[fn4]
I am deeply disturbed by this trend and concerned by the ramifications. I had one judge tell me that the prosecutor's office usually helps petitioners complete the DVPO petition. When she gets one involving a child custody case and it has not been obtained through the prosecutor's office the she doubts its' veracity. This type of bias, which arises as a result of concocted claims that are really just part of a trial or settlement strategy, cast the shadow of doubt on legitimate complaints. Judges may become dismissive of allegations that truly merit court interdiction.
Bias is aptly demonstrated in one such court hearing where the alleged victim brought photographs of injuries, medical documentation of the emergency room visit, and a copy of the police report. The judge’s explanation for denying the DVPO petition: “Well, you have to expect one knock-down drag-out fight per divorce.”[fn5]
The misuse a DVPO as a trial strategy tool cause those who truly need intervention or protection to find it increasingly difficult to get help. It is incumbent upon judicial officers, practitioners and parents to be vigilante towards recognizing false allegations and ensuring that settlements and the negotiation process are undertaken in good faith. Doing so should better meet the best interest of the children and result in parents abiding by agreements that were entered voluntarily rather than coerced through by the threat of a court imposed power imbalance.
Notes
[1] Lou Brown, Francois Dubau, & Merritt Mckeon, Stop Domestic Violence: An Action Plan For Saving Lives 109 (St. Martin’s Griffin 1997).
[2] IPTG § Sec I(B)(4) Privacy of Residence. A parent may not enter the residence of the other, except by express permission of the other parent, regardless of whether a parent retains a property interest in the residence of the other. Accordingly, the child shall be picked up at the front entrance of the appropriate residence unless the parents agree otherwise. The person delivering the child shall not leave until the child is safely inside.
[3] Cited in Young C. Hitting below the belt. Salon.com, October 25, 1999. http://www.salon.com/mwt/feature/1999/10/25/restraining_orders/
[4] Indiana Code § 31-17-2-8 and 31-14-13-2: The court shall determine custody and enter a custody order in accordance with the best interests of the child.
[5] Cook P. Abused Men: The Hidden Side of Domestic Violence. Westport, CT: Praeger, 1997. pp. 83–84.
In the finally posting I will caution you about the reliance upon attorneys to advocate for your parent-child relationship.
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.
