30 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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I hold no position on whether marriage should be defined as between a man and a woman. It is already in the Indiana Code so for me it is not a germane issue. But as it has been a hotly contested matter that is diverting attention away from legitimate child well-being issues I would like to see it disposed. As I engage in vigorous conversation with and attend informational events held by both proponents and opponents I am struck by the misconceptions, misstatements and blatant lies about HJR3 which come from both sides but moreso from what I see distributed by proponents. Particularly disturbing is the general characterizations that are being flipped on their heads with this issue.
I am not going to cite to authorities is this article. I have numerous years of experience in the field of child custody, marriage – or rather divorce – and advising state policy makers on matters pertaining to these.
The hallmark of conservatism is the protection of liberty. So I found it stunning when I received an email yesterday from a proponent of HJR3 attacking Indiana House members who voted to strip HJR3 of it's broad restrictive language. It was not the misunderstanding about conservatism that bothered me but, rather, it was the blatant lies.
American Family Association of Indiana
To me truth matters. I hold truth in such high regard that it is equaled by few other people. When my son was age 2 I told him that the Santa Claus stories perpetuated by our society are lies. I explained truth to him and the importance of being truthful. He understood. There is no one that I have a more trusting relationship than with my son. As someone who goes into courts across this state and provides expert opinion and testimony of observations the veracity of my statements is critical to the best interest of children. So when I hear these blatant lies it raises my ire. Especially when it is directed in a way to cause harm to children. This is why I am compelled to respond to the email from Micah Clark of the American Family Association. This is disturbing to me because I honestly believe that the AFA has made positive contributions towards childhood well-being following divorce.
The AFA states in regards to the House members who voted to amend HJR3, “Some even think that they are 'conservative,' but they are not.” I will address that opinion later after confronting the lies.
52 members voted for same-sex marriage and for keeping the government involved in this issue
NOWHERE in HJR3 as amended and passed is there any repeal of Ind. Code § 31-11-1-1 which prohibits same-sex marriage. The great contradiction here is that while opponents of HJR3 are trying to keep government out of the marriage business and let people decide the extent of their personal relationships not the government.
Every one [of the 52 House members] has tried to take away your right to vote on this issue and now has left the future of marriage in the hands of politicians and homosexual activists.
This is an absurd misstatement of the Indiana Constitution that goes against the basic tenants of our constitutional republic. There is no right of the people to vote on this issue or any other. Our law making process is constructed under a representative form that provides for voters to select other citizens to represent them as a law making body. In Indiana we have two house; a House of Representatives comprised of 100 members, and a Senate comprised of 50 members. These are the people who have a “right” to decide this issue as particularly described in Article 16 of the Indiana Constitution. Now I will move onto more about rights and the people deciding.
52 members of the Indiana House of Representatives ignored the will of 80% of Hoosiers who want to vote on the future of marriage.
I am thankful that we have legislators who are willing to ignore the will of 80% of Hoosiers. Ignore 100% or whatever it takes. Legislators took an oath to obey the Constitution and if upholding those principles conflicts with the will of the people then those representatives have done their job admirably.
Indiana was the first jurisdiction in the world to impose, by law, forced sterilization on citizens deemed to be unfit to procreate. This law formed the basis of the genocide legislation imposed onto certain Germans during the Third Reich. That legislation was supported by the majority.
That illustrates the tyranny of the majority. A simple analogy used by those of us who cherish liberty is that democracy is three wolves and one lamb voting on what to eat for dinner. Apparently the AFA wants the wolves to make the laws in Indiana. That is the immorality of pure democracy. It does not respect the rights of the individual.
[A] conservative respects the moral order of society.
What is moral does no harm. HJR3 as introduced would have led to harm. I have written about how it would invalidate Domestic Violence penalties and prevent victims from receiving services. It would also allow for a parent to terminate a child's relationship with the other parent by nullifying laws that would protect the child's right to that relationship.
[G]iving the people of Indiana the freedom to decide the matter once and for all.
This is the statement that shows the true desire of HJR3 proponents and how their claim over voter rights is fallacious. Another way to frame this sentence and give the same effect is to say, “Keep future voters and legislators from being able to have the ability to adapt statutes to the changing dynamics of society.” HJR3 is all about preventing people in the future from having a direct input into the government regulation of their lives. Imagine if one hundred years ago we had a constitutional amendment to define “biological parent” as “those parents who conceived their child through sexual intercourse.” Other parents would be adoptive parents. But then IVF came along and children were born to biological parents, as we know the term, who did not have intercourse.
What You Need to Know about Marriage
I received a pamphlet produced by Alliance Defending Freedom, Family Research Council, Focus on the Family, National Organization for Marriage, and The Heritage Foundation.
Let me begin by saying from a public policy standpoint [a position taken that is based upon statistical generalities] that a marriage between a man and a woman is best for raising children. I strongly advocate for presumptions that children are most well-adjusted when they have a meaningful and regular relationship with their mothers and fathers. This is acknowledged in the Indiana Parenting Time Guidelines and numerous published opinions of the Indiana Court of Appeals and decisions of the Indiana Supreme Court.
This pamphlet correctly acknowledges that “children need a mother and a father.” In advocating their public policy position on marriage these organization make what I believe to be some spurious claims. These include that marriage “brings together sexually complimentary spouses, in a monogamous relationship,” that “marriage is about the needs of children,” and that “Marriage ensures the well-being of children.” These statements on their face seem plausible from the standpoint of a policy advisor who works in the child custody arena I take issue with each.
Empirical data and my observations or interviews reveal that a substantial percentage of marriages are not monogamous. Further, that a high percentage of same-sex marriages are monogamous and are co-habitating unmarried parents.
While much of the claims of proponents rest on the presumptions about the historical perspectives a traditional marriage their current claim do not bear such congruence. “Marriage is about the needs of children” is a new concept. Marriage has long been a method of securing relationships between families for political or business purposes. Marriages were often arranged by parents. Black's Law Dictionary defines marriage to include “A contract, according to the form prescribed by law, by which a man and woman capable of entering into such contract, mutually engage with each other to live their whole lives (or until divorced) together in a state of union which ought to exist between a husband and wife.” That sounds vaguely like a civil union. Likewise to the business or political contractual application, marriages often served as a means of support for a woman and subsequently upon the bearing of children as a means of securing labour for the agrarian man. It was not until post-industrial revolution that a marked shift began to occur in which marriage became more focused on children's needs including the adoption of laws to protect children from being indentured into labour by their parents. To this day, in Indiana, there still exist a statute requiring adult children to financially support their parents. Thus, marriage or rather child rearing in general, is not entirely about providing for the needs of children but is a financial security blanket for parents under threat of imprisonment.
Then there is the well-being of children claim. If marriage does ensure the “well-being of children” then why are children in married households being abused and neglected? Why I am always involved in at least one court case involving allegations of domestic abuse between married parents?
Much of the information cited for opposing gay marriage or civil unions is that married mothers and fathers produce the best outcomes for children. Again, I emphatically say this is true. However, these authors juxtapose this data to same-gender civil unions. This is misplaced as the researchers generally are comparing married parents to unwed parents or single parents where one parent has abandoned the child. After traditionally married parents a civil union among monogamous same-sex “parents” is best.
One interesting claim I found was that “no one has the right to redefine marriage for all of us.” I almost find this bizarre. Allow same-sex civil unions would do nothing to restrict marriages as they currently exist between mixed gender adults. However, HJR3 would bar the government from recognizing same-gender relationships similar to marriage including allowing grant money to be used to supply Domestic Violence service to victims of same-sex abuse.
I will close on this statement. Marriage is “a permanent and exclusive union of a man and woman for childbearing and rearing.” Based upon that limitation then sterile persons should be barred from marriage. This also ignores the numerous cases I have seen where same-gender “parents” solidified their relationship through a ceremony for the purpose of being parents to the child or anticipated child of one of the partners.
Regardless of the position one holds on this issue the debate should not be tainted by misinformation, omissions, or lies.
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. 
Thursday, January 30, 2014
Objective truths about HJR3 the Indiana Marriage Amendment: Breaking down proponent's scare tactics
Tuesday, January 28, 2014
HJR3 Marriage Amendment to the Indiana Constitution would have encouraged more Domestic Violence had it not been amended in a 52-43 vote
28 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Here is the complete text of the proposed Article 38 to the Indiana Constitution;
Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
The first sentence is already in Indiana Code § 31-11-1-1(a)
“Only a female may marry a male. Only a male may marry a female.” The second sentence (b) goes on to prohibit same gender marriages;
“A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.” This law was passed in 1997.
While I hold no position as to who may join themselves in an intimate relationship other than two consenting adults I oppose the passage of HJR3 on two basic principles. The first is it would deprive voters of the opportunity to decide these matters which I wrote about previously. The second reason, which I find more compelling, is that it could deny to children the right of access to both parents and it could deprive certain classes of people from receiving further protections or services related to Domestic Violence.
The HJR3 Second Sentence reads “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” This is a very broad sentence. “Legal status” refers to recognition by the government of a state of being and cuts across a wide swath of interactions from marriage to disability or – as I am going through a battle with Indiana University – whether I am a resident of the State of Indiana.
Child Custody
I will address the child custody matter first which is at the core of my professional activities -- child custody. Currently, Indiana law forbids people of the same gender to marry and be recognized as such by the State. This prohibition prevents the partner of a biological or legal parent from becoming an adoptive parent to the child. Thus, the female partner of a woman, while fully intending to be a second parent to the unborn child her partner carries, cannot become an adoptive parent of the child. A man not the biological father may. This is common in subsequent marriages and is known as a step-parent adoption. On this topic Indiana Supreme Court Chief Justice Brent Dickson correctly articulated;
“Indiana adoption law expressly addresses stepparent adoptions, permitting them if 'the adoptive parent of a child is married to a biological parent of the child.'[fn1] In all other cases, an adoption operates to divest the child’s parents of all rights with respect to the child. In addition, same-sex marriages are prohibited in Indiana. Even if King and [Benham] had not separated but were continuing to live together as same-sex domestic partners, it is my view that King could not lawfully adopt A.B. because stepparent adoptions require the adoptive parent to be married to the child’s parent, and same-sex marriages are not permitted. If a stepparent adoption is contrary to statute for same-sex domestic partners living together, it is likewise illegal after the termination of the couple’s relationship.”[fn2]
In such a case of same-sex parenting the biological or legal parent could summarily terminate the adult-adult relationship and also terminate the parent-child child relationship involving the partner and the child of the biological or legal parent. Thus, a child who has known a “parent” since birth could be summarily discharged from that person's life with no legal recourse. This is in clear opposition to public policy. The Preamble to the 2013 Indiana Parenting Time Guidelines begins;
The Indiana Parenting Time Guidelines are based on the premise that it is usually in a child's best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child.
It could be a traumatic event with long lasting psychological implications for a child to have to go through this. As reproductive technologies allow, society becomes more accepting, and costs decrease we are going to see more same-sex parenting arrangements. Consequently, as with any partnerships be it traditional marriage or business relationships there are going to be dissolution actions. Some will not be amicable and some of these partners will do the despicable act of using the child as a tool of retribution. Children will need to be legally protected from this as currently exist in marriages, adoptions and paternity cases.
Domestic Violence
The second part of my argument against the Second Sentence is also germane to my activities as I am currently advising on a Domestic Battery cases in a criminal court. The Second Sentence could deprive victims of Domestic Violence from receiving support or having the legal status of a victim. “A legal status . . . substantially similar to that of marriage for unmarried individuals” could be surmised from intimate partnerships. Persons who qualify as victims of Domestic Violence include;
An individual who:
(1) is or was a spouse of the other person;
(2) is or was living as if a spouse of the other person as provided in subsection (c); or
(3) has a child in common with the other person; [fn3]
If the Second Sentence of HJR3 had been adopted then defense attorneys in Domestic Violence cases involving same-gender intimate partners would be arguing constitutionally that the law may not be applied to their same-sex clients. (1) is not applicable because same-gender partners may not marry in Indiana. (2) is not applicable because “living as a spouse” is “substantially similar” to marriage. (3) is not applicable because the same-gender partner has no legal status related to the child as Chief Justice Dickson explained. Whereby the language of HJR3 as introduced would have prohibited prosecution of violent abusers in same-gender relationships. It would have also prohibited the victims from receiving services through victims advocates as the would be constitutionally barred from being granted a victim status and all shelters or other services providers would have had to deny services to these victims if the provider received any State support – as nearly all do through grants. Essentially, HJR3 as introduced was a green flag to same-sex abusers to be violent against their partners.
No one should advocate for encouraging violent relationships regardless of gender but that is what supporters of HJR3, whether through intent or ignorance, have done.
Next time you are given the opportunity to support a public referendum on a matter of law ask yourself if you knew that sending HJR3 as originally written to public referendum would have prohibited prosecutions of same gender offenders under Domestic Violence laws.
Footnotes
[fn1] Ind. Code § 31-19-15-2(a)
[fn2] King v. S.B., 837 N.E.2d 965 (Ind. 2005)
[fn3] Ind. Code § 35-42-2-1.3 version b
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.
