Oh those contentious parents who make child rearing a battle ground. In one of the most vociferous battles that I have encountered as of late is that of Paula Rorer Hubbard and William Shane Rorer. Mother was found to be in contempt of Father's parenting time and appealed. The appellate panel rendered its decision on Monday 14 April 2014 in an unpublished opinion. The appeal arose under Mother's argument that she was found to be in contempt of court and sentenced to a term of confinement, suspended, based upon inadmissible evidence and an improperly imposed jail sentence. The case originated in the Warrick Circuit Court where the Honorable David O. Kelley, Judge, presided. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
Mother was found in contempt for her failure to facilitate parenting time between the parties' adolescent daughter and Father which had been recently reinstated following a three year lapse. Mother and Father had one daughter during their marriage which was dissolved in April 2003. After years of disputes between Mother and Father regarding custody and parenting time, the trial court suspended parenting time between Father and Daughter in September 2010. However, on 01 August 2013, the trial court ordered that Father was entitled to parenting time with Daughter who was then fourteen years of age.
Neither parent enters this latest fray with clean hands. The trial court observed that Parents have an “inability and refusal to co-parent effectively.” The disputes are deeply rooted and the duration of the battle appears to mystify Judge Kelley as noted:
The anger they share for each other and the desire to “get the best of the other” is much more important to each parent than meeting their responsibility to rear a child together in a responsible manner. There is plenty of blame to go around for each parent and a recitation of the offenses of each parent would serve no good purpose. Collectively, however, it is clear to the Court that the child and her overall welfare are secondary to the parents’ “personal war.” Given the number of years it has gone on one would think the parents would grow weary of combat but it appears to have worsened rather than improving.
The court has recognized daughter's manipulation of the parents' conflict:
[Daughter] has recognized this conflict and seized the opportunity to “drive the bus.” What teenager would pass on the opportunity to be in complete control of her life? It is clear to the Court that her rejection of her father is pleasing to her mother and continued rejection will guarantee a continued flow of favorable treatment from the mother.
Judge Kelley exemplifies the hopelessness in the predicament that judges face with these high conflict parents. As so many have similarly expressed to me, Judge Kelley articulated his feelings in this manner:
Numerous mental health professionals have not been able to address the parents’ issues and the Court has absolutely no expectation that it can make things work smoothly. The Court has considered drafting specific measures that would direct each parent how to be an effective parent but the Court doubts that either party would follow those directives and also it is not [the] Court’s responsibility to rear the child.
The order that went into effect on 01 August 2013 was initially breached at Mother's first opportunity. On 07 August 2013, Daughter initially refused to participate in parenting time with Father. Ultimately, however, she cooperated after the police arrived. On 09 August 2013, she again refused to participate in parenting time. On 12 August 2013, Father wasted no time in filing a petition for contempt against Mother. Father alleged that Mother “has done everything in her power to attempt to discourage [Daughter] from seeing” Father.
At hearing Father produced a police officer who had responded to the 07, 09, and 14 August parenting time exchanges. Mother objected to testimony and documentary evidence of the 14 August incident arguing that it fell outside of the allegations plead two days earlier. On its face to any experienced appellate litigator this is merely cumulative evidence that demonstrates a pattern. Thus it will not be held as a basis for reversal. Mother was clearly already on notice about these allegations. The Court so found stating that the Officer’s “testimony and Exhibit A were merely cumulative of the other evidence, and any error in the admission of the testimony and Exhibit A was harmless.” Thus the Court found that “[w]e disregard errors in the admission of evidence as harmless error unless they affect the substantial rights of a party.”[fn1]
In finding Mother in contempt the Court found “from the evidence that the Mother has failed to take a positive or active role in encouraging the child to engage in visitation and is allowing the child to decide if she wants to visit.” It has already been observed that children are not to be put in the position of or allowed to make decisions regarding participation in parenting time.
The Indiana Parenting Time Guidelines provide:
If a child is reluctant to participate in parenting time, each parent shall be responsible to ensure the child complies with the scheduled parenting time. In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.
Commentary:
In most cases, when a child hesitates to spend time with a parent, it is the result of naturally occurring changes in the life of a child. The child can be helped to overcome hesitation if the parents listen to the child, speak to each other and practically address the child’s needs.
Parents should inquire why a child is reluctant to spend time with a parent. If a parent believes that a child’s safety is compromised in the care of the other parent, that parent should take steps to protect the child, but must recognize the rights of the other parent. This situation must be promptly resolved by both parents. Family counseling may be appropriate. If the parents cannot resolve the situation, either parent may seek the assistance of the court.[fn2]
Mother failed in her duty to promote a positive parent-child relationship between Father and Daughter as well as failing to facilitate Father's parenting time. Evidence elicited at the hearing indicated that at the 07 August parenting time exchange, Mother engaged in the alienating tactic of crying and hugging Daughter when Daughter was ready to leave with Father. At the 09 August parenting time exchange, Mother would not get out of the vehicle and only cracked her window to talk to Father. A family friend testified that she never heard Mother say anything that encouraged Daughter to participate in the parenting time. Father presented evidence that Mother failed to ensure that Daughter complied with the scheduled parenting
Mother and Father have harmed their daughter to the point that when after three years of absence from the life of her Father she refused to see him. Social science research shows significant benefits to children when non-custodial fathers remain involved in their lives.[fn3] Yet, both parents allowed their ongoing disdain for each other to poison the well from which their daughter drinks. Rather than provide competent nurturing and guidance to their daughter they have instilled in her that she has no intrinsic value but, rather, is only a prize to be fought over and won. Both of these parents are abusive to their daughter.
As for the contempt citation, the primary objective of a civil contempt proceeding is not to punish the contemnor but to coerce action for the benefit of the aggrieved party.[fn4] A contempt order that neither coerces compliance with a court order nor compensates the aggrieved party for loss and does not offer an opportunity for the recalcitrant party to purge himself may not be imposed in a civil contempt proceeding. Thus, Mother holds the keys to her freedom by ensuring that she complies with the court order and facilitates Father's parenting time.
In nearly six years of working nearly exclusively on high conflict parenting child custody cases I have been able to observe a patter in these relationships. The hostile aggressive parent needs a partner in the conflict and ensuing battle. That partner is the other parent. This is not to say that both parents share equally in the blame or initiate the offending actions. It must be acknowledged though, as I have seen, that both parents play a role in perpetuating the conflict. This conflict is mitigated by creating a new concept of the parent-parent and parent-child relationships which ultimately benefit the child.
notes
1] Sibbing v. Cave, 922 N.E.2d 594, 598 (Ind. 2010)
2] Ind. Parenting Time Guideline § I(E)(3) (emphasis added).
3] E.g., Marcia J. Carlson & Katherine A. Magnuson, Low-Income Fathers’ Influence on Children, In re Matter of E.M. And El.M. (Ind. 2014) citing 635 Annals of Am. Acad. Pol. & Soc. Sci. 95, 107 (2011)
4] In re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct. App. 2011).
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. 
Tuesday, April 15, 2014
Contempt of Court Jail Sentence when Child Refuses Parenting Time Upheld - Indiana Court of Appeals
Tuesday, February 11, 2014
Mothers of Lost Children promoting policies of harm to children and gender discrimination in child custody cases to the US Congress
11 February 2014
notes * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
The arena of child custody battles can lead to some of the most vile, hostile, and divisive behaviours parents can express which can be detrimental to the well-being of children. When these offenders get organized and perpetuate their hate as a group the outcomes can be even more detrimental. One such hate-group is Mothers of Lost Children.
As an advocate for the well-being of children and knowing the needs that they have, especially when their parents are going through divorce, I am keenly aware of the necessity of maintaining gender neutrality in child custody laws and policies. Gender neutrality allows judges to make decisions that consider the needs of the children first. The danger with hate-groups like Mothers of Lost Children is that they are motivated to eliminate one gender of parents from the lives of children based solely upon their selfish interest. Creating state policies which discard adverse factors – that either gender may exhibit -- such as mental illness, Domestic Violence, neglect or abuse in favour of gender based considerations puts children into dangerous situations.
Gender neutrality is the only legitimate means by which to advocate for the best interest of children. I am usually reticent to embrace any organization that is gender specific for inclusion into the policy formulation forum. This is not to say that they can't have legitimacy, as presentation of perceptions or needs generally attributable to a specific gender should be recognized. Gender specificity is surely justifiable in support or a particular gender but not so in policy application. As previously mentioned mental illness, Domestic Violence, neglect or abuse are not gender specific. All are found to be attributable to mothers in greater frequency while generally in greater intensity among fathers. To effectively manage and mitigate these incidents they should be approached in a gender specific manner but not to the exclusion of a gender from acts adverse to children.
I long ago seemed to catch the ire of father's rights groups by my inconsonance with their agenda when I proclaimed that most NCP – which are overwhelmingly fathers -- are deserving of that status. Like most of those boisterous and hostile leaders of father's rights groups, Mothers of Lost Children are just as likely NCP's because of their behaviours. Some of which are aptly demonstrated in their actions of attacking the character of any person who recommends that they not be the primary custodians. This behaviour is identical to what I saw in some of the most veracious and vindictive father's rights groups. Blaming society, corruption and, fathers for the damage these mothers have cause to their own parent-child relationships supports the rulings against them. These behaviours reflect their failure to accept responsibility. The hallmark of my child custody based life coaching – usually of NCPs – is that parents accept responsibility for their predicament.
Mothers of Lost Children recently sent out an announcement about their efforts to spread their message of bigotry. There they stated: “Many thanks to Andrew Willis of Stop Abuse Campaign for his crucial help in getting us a Congressional Briefing on October 2! We now have the issue of Protecting Abused Children of Divorce and Separation deep into the halls of Congress.” They go on to say “[f]our brave mothers filed a joint complaint on November 6, 2013 in the United States District Court, District of Massachusetts, against a variety of judges, court professionals and other officials in Rhode Island and Massachusetts.”[fn1] This is one of the tactics they use – attacking anyone who doesn't make a gender based decision siding with them – to intimidate those people who would seek to protect children from abusive mothers.
Their overwhelming bias and lack of concern for protecting children from all harmful parents is apparent in their request for parents to join in their judicial and legislative efforts. Specifically they say that “mothers from other states can join” and then they ask for the identity of the “partner/husband.” The evidentiary information they seek is only that which would be detrimental towards fathers;
“Criminal record (arrests and convictions)”,
“Reports of physical or sexual assault/battery and/or incest”, and
“Intimidation against you that deterred you from reporting”.
They then ask for information about who was responsible for the “Removal of child(ren) from you after you reported criminal physical or sexual assault/battery and/or incest.” Not surprising is that nowhere do they ask for court findings that substantiate their allegations or why they did not get custody of their children. Neither of those factors could support their agenda.
Mothers of Lost Children encourages the use of filing petitions for Domestic Violence Protective Orders as a means of absconding with the children and severing a parent-child relationship even when no act of or threat of Domestic Violence is alleged. An obviously bigoted and deceitful approach to child custody decisions should not be tolerated and Mothers of Lost Children should be ignored but they aren't. Those who do not join in their crusade to harm children are targeted for acts of intimidation and being publicly rebuked. After I was requested to make a presentation to the Indiana General Assembly on the subject of false allegations of Domestic Violence in child custody cases and my efforts to bring about gender neutrality and truth in DV cases I was personally vilified by the hate-group Mothers of Lost Children.
It is always my goal to promote healthy parent-child relationships in child custody cases. Yesterday I presented a Report to the Indiana Senate on the effect that banning civil unions would have on child custody. I am currently working with some legislators on crafting a bill that will provide opportunities for people involved in Domestic Violence to be entitled to assistance in breaking free from that. Included in my legislative proposal for Assessment-Treatment Confidentiality for Perpetrators of Domestic Violence I provide a copy of a Petition for an Order of Protection that did not include an allegation of abuse [page 12, paragraph 7].
That Petition was written by Angie Warnock. Particularly when I wrote about the murder of Angie Warnock and revealed how the alienation tactics she used which included filing that Petition I was again vilified by these hate-mongers. Interestingly when I wrote that posting I knew nothing about the case other than what I had read in the brief newspaper account which is included at the beginning of that posting. Instead I relied upon my years of experience in the field where I have identified traits that are common to particular personality dysfunctions such as parental alienation.
It should be the goal of all responsible parents to eliminate harms to their children. Unfortunately when one group of mentally ill unfit parents get together and collectively support each others' delusions it has the effect of perpetuating harm against their own children.
Being blinded to the reality of one's own behaviour because of an allegiance to one's demographic classification and clear expressions of their mental illness is the formula which allows the rational judicial officers to make the proper decisions which protect the children. We should be thankful for the “variety of judges, court professionals and other officials in Rhode Island and Massachusetts” who are standing up against these hateful parents who try to alienate the children.
Over the years I have served numerous parents who endured ongoing hostile parent-parent relationships. By facilitating acceptance of the parent's responsibility for his or her custodial situation and recognition of the responsibility of the judicial officers parents can progress toward an understanding of the dynamics the lead to better outcomes for children. These outcomes are not a result of policies favouring one gender over the other but in parents, regardless of gender, recognizing that it their behaviours and their responsibility to ensure the best outcomes for their children.
If you care for the well-being of children and believe that child custody decisions should be made based upon the facts of the case and the behaviours of the parents rather than a mandated award of custody based upon gender then please call or write your congressional representative and tell him or her so.
[1] retrieved from Equal Access Advocates, http://www.equalaccessadvocates.com/2013/11/24/ca-protective-parents-association/ 27 November 2013
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 22, 2014
How to get a 28 year Protective Order lodged against you and then waste time appealing it
22 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
The Indiana Court of Appeals delivered an opinion in A.N. v K.G. Yesterday which it chose to publish. [A published opinion is one that can be used as precedent and usually reflects an important legal decision or a change to prior decisions] The matter was originally heard in the trial court by Barbara Crawford, Judge Marion County Superior Court.
On May 18, 2010, K.G. filed an ex parte motion for a protective order against A.N., which the trial court granted the same day. On June 11, 2010, following a hearing, the trial court granted him a protective order for two years. The protective order prohibited A.N. from acts of violence, stalking, and “harassing, annoying, telephoning, contacting or directly or indirectly communicating with” K.G. and three other persons.
Over the course of two years K.G. filed multiple information for contempt alleging that A.N. had in addition to making “non-stop” phone calls to his home phone and his ex-wife’s phone, A.N. had “spray painted [his] knew [sic] house.” Upon the first hearing, April 5, 2011, the trial court found A.N. in contempt. She received a suspended sentence of 120 days in the Marion County Jail and was ordered to complete 80 hours of community service and pay a fine. K.G. later claimed that A.N. had made numerous calls to his home and that he possessed a picture of his home phone that recorded the telephone number A.N. used. K.G. alleged that on one occasion, he spoke to A.N., who said, “I’m back[.] [Y]ou better watch your ass.” When reminded by K.G. that a protective order was in place, A.N. allegedly responded, “F*** that protective order[.] I can do what I want.” Apparently so but that can come with consequences. The trial court found that A.N. violated the protective order and ordered her 120 day sentence executed and placed her on home detention. The trial court thereafter extended the protective order to November 29, 2040, for a total of 28 years.
I won't go into a detailed legal analysis of A. N.'s appeal as most of it was without merit. However, the one issue that deserves attention was her claim that the judge acted as an advocate. This is something that it often brought to me as a concern by potential clients when the judge asked questions during the proceeding or made sua sponte [on the judge's own motion] objections. The Court of Appeals addressed it in this manner;
The record shows that the trial court’s questions were neutral, served to clarify K.G.’s testimony, and did not discredit A.N. or her defense. Although A.N. alleges prejudice since the trial court cited the photograph when explaining its rationale for finding A.N. in contempt, A.N. was not prejudiced because she cross-examined K.G. on the photograph. We therefore conclude that the trial court did not act as an advocate by asking K.G. foundational questions regarding the photograph. See Trotter, 733 N.E.2d at 532.
A trial court has a duty to remain impartial and refrain from making unnecessary comments or remarks. Cook v. State, 734 N.E.2d 563, 566 (Ind. 2000), reh’g denied. However, not all untoward remarks by a judge constitute reversible error. Id. at 567. The remarks must harm the complaining party or interfere with the right to a fair trial. Id. Further, the court does not engage in improper advocacy by stopping improper cross-examination on its own motion. Id.
The record reveals that each time the trial court interrupted A.N.’s cross-examination, the questions posed either mischaracterized K.G.’s testimony or were argumentative. However, the critical question here is whether the trial court’s remarks harmed A.N. or denied her a fair trial. See id. They did not. In the first instance, A.N. simply rephrased the question and proceeded with cross-examination. After intervening in the three instances of argumentative questioning, the trial court sought to move the proceedings forward, for example, by instructing A.N.’s counsel to “stick with the facts of these contempt petitions.” Consequently, A.N. has not shown that the trial court’s remarks constituted improper advocacy or interfered with her right to a fair trial. See Cook, 734 N.E.2d at 566.
Legal analysis of the proceedings aside, the important fact to take away from this is that violation of a Protective Order or a No Contact Order can result in a civil order of confinement. It can also lead to a separate criminal charge. As in this case A.N. is going to be burdened with being required to comply with this order until the year 2040. She seems to demonstrate a clear unwillingness to comply for the first three years, even after incarceration, and if it doesn't cease a criminal charge will likely follow.
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 20, 2014
Domestic Violence advocate for victims in civil proceedings - 2014 Indiana Senate Bill 138
20 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
Senator Vaneta Becker has introduced a bill relating to Domestic Violence advocates and service providers in civil proceedings.
Here is the synopsis of the bill;
Victim advocates in civil proceedings. Removes restrictions
on grants from the victim services division of the Indiana criminal
justice institute for certain entities to enter into a contract with the
domestic violence prevention and treatment council. Provides that a
court may allow a victim advocate to attend a civil proceeding and
confer with a victim as necessary. Specifies that a victim advocate is
not considered to be practicing law when performing certain services.
The following language would be stricken from the current statute;
[strike] However, the division may not grant more than seventy-five percent (75%) of the money necessary for the establishment or maintenance of a domestic violence prevention and treatment center during a specified time. The amount granted by the division for use by a single domestic violence and prevention treatment center may not exceed one hundred thousand dollars ($100,000) each year. [close]
This is replaced by three lengthy section that define “victim,” “victim advocate,” and “victim service provider.” Each includes a provision that services relate to someone who “is not accused of committing an act of domestic or family violence” and other related offenses.
The fourth, and final, section is as follows;
(a) In any civil proceeding, a court may allow a victim advocate to attend the proceeding, sit with the victim, and confer with the victim as necessary.
(b) A victim advocate is not considered to be practicing law when performing the services described in this section.
What I do like about this bill is that it provides clear definitions and allows for advocates to become more involved in the judicial process in an effort to mitigate acts of Domestic Violence. However, unless I have missed it elsewhere I strongly oppose the unilateral approach that it takes towards Domestic Violence - essentially that Domestic Violence is the result of the “victim” not receiving services. The existing language ion the statute provides that services are to include “domestic violence prevention and treatment.” While prevention can be based upon avoiding perpetrators it should also include preventing perpetrators from committing the acts or having the desire to do so. This should include treatments such as anger management, effective communication skills, and cognitive behavioural therapy.
For illustrative purposes I will use shoplifting as an example. This phenomena can be attacked from two perspectives; 1] store based preventative measures [locked display cases, RFID tags, personnel selection], and 2] offender treatment [incarceration, CBT, employment opportunities]. It would seem logical to try this dual attack approach. Providing increased knowledge and security measures to stores but also providing services to the offenders to get at the root of what is sometimes simply an underlying compulsion to steal although one is sufficiently financially able to pay. To deny services to offenders would essentially proclaim the problem to be one that is victim based and incidents would likely increase.
Domestic Violence is a phenomena that can be attributed to a cycle. That is it is primarily a learned behaviour from parents. Perpetrators say or experienced Domestic Violence as a children as a means of exertion of control. In our society and similarly in Germany it is still widely acceptable to teach children, by example, that the reinforcing stimulus to achieve compliance with one's commands is violence. Similarly, “victims” have been taught that violence is the result of a violation of rules and that it is deserved. Both assessments are wrong.
Violence as a means of exerting control is wrong and both “victims” and perpetrators need to hear that message and be able to receive services that can help convey that message.
Proposed amendments -
NEW SECTION
As used in this chapter, “alleged perpetrator” means:
(1) an individual against whom an act of:
(A) domestic or family violence;
(B) dating violence;
(C) sexual assault (as defined in IC 5-26.5-1-8);
(D) human and sexual trafficking (IC 35-42-3.5); or
(E) stalking (IC 35-45-10-5);
has been alleged or substantiated.
AMENDED Sec. 4. (a) In any civil proceeding, a court may allow a victim advocate to attend the proceeding, sit with the victim, and confer with the victim [insert]or alleged perpetrator[close] as necessary.
This bill has been referred to the Senate Judiciary Committee. It is scheduled for a Committee hearing on Wednesday 22 January 2014 in Room 130 of the Indiana State House at 0900.
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
15 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
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.
Monday, January 13, 2014
Summary Dissolution of Marriage following Domestic Violence conviction - 2014 Indiana House Bill 1014
13 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
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.
