Stuart Showalter is a child custody policy advisor to Indiana state policy makers as well as attorneys on child custody cases. For parents he offers child custody based life coaching to help them maintain control of their lives, increase their fitness as parents and manage their litigation so they can truly serve the best interest of their children. He provides this Law Blog as free opinion on various issues. Reader submissions of topics are welcomed. Send to Stuart@StuartShowalter.com
Domestic Violence [DV] isn’t bound by social or economic classes, race, education level, population density, or even gender. Rather, it appears to be a construct of a society that encourages and promotes the concept that “might is right” which then tolerates violence between parents.
Yet, we do have a framework of laws intended to punish those who perpetuate violence against a household family member or intimate partner and is intended to protect the targets of their violence. Targets of DV may obtain a Domestic Violence Protective Order [DVPO] which is intended to bring about a cessation of or the threat of violence. But as violence and intimidation continue this method of addressing DV must be questioned.
I question today whether DVPO’s protect or, worse, magnify the violence or threat of violence, and if those laws and court involvement are all just efforts, resources, and time wasted. I use a recent case in Lebanon, Indiana as an example.
A perpetrator follows the other parent to a location at the opposite side of town and initiates a physical attack. The target returns home. Subsequently a unit from the Lebanon Police Department arrives there and the target is again threatened but the perpetrator is restrained by the officer. The perpetrator is arrested and charged with numerous counts including domestic battery.
Contingent upon release from custody is the issuance of a No Contact Order on behalf of the attacked parent and the infant who was also battered by the perpetrator. The parental target also obtained a DVPO. Child Protective Services sought to establish and facilitate parenting time between the perpetrator and the attacked infant. The prosecutor objected but eventually supervised visitation was established. Upon returning the infant from the first visitation session - which was in August - the perpetrator left two handwritten notes directed to the other parent tucked in the diaper bag of the infant. The No Contact Order was still in effect at that time.
The perpetrator has since been observed following the targeted parent and screaming an obscenity at him. Also at one point was videotaped burglarizing the home of the targeted parent. Additionally, for the past month the perpetrator has repeatedly sent text messages to the phone of the targeted parent including at one point when the phone was physically in the hands of a law enforcement officer.
Complaints were made to the Lebanon Police Department and the Office of the Boone County Prosecutor. Yet the perpetrator remains free to further harass and torment the other parent and get to see the child.
Part of the stipulation of being released on the perpetrator’s own recognizance is the requirement to refrain from illicit drug use and to submit to drug tests. Yet the perpetrator has subsequently tested positive for methamphetamine and refused to submit to further screenings.
Finally, at one hearing in the Boone Circuit Court, which issued the DVPO, Magistrate Sally Berrish ordered the targeted parent to sit next to the perpetrator.
So the question becomes should one even bother obtaining a DVPO or is it just a waste of time?
To do or not to do; that is the question.
The outcome in a situation like this is easy to predict. It is basic psychology that we should not want to be our practice but others have incorporated with their children. The child breaks a rule and is threatened with punishment but the punishment never comes even as the rule is repeatedly observed being broken. From the child’s viewpoint there is no consequence to his unruly behaviour. Thus, it is likely to continue and increase in severity.
So what if a DVPO wasn’t issued? Again, we go back to children. The child who hasn’t been caught violating a rule may still do so but will likely do so cautiously. There may be trepidation from the feeling of “next time I may get caught”. Or the unruly behaviour may cease as a result of “I best quit while I’m ahead”. There is clearly a different dynamic at play in the mind of one who has been repeatedly caught but not faced any consequence and one who has repeatedly not been caught.
As the actions of the perpetrator become more hostile and brazen the targeted parent has expressed a fear of remaining in this town.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
A Domestic Violence Protection Order [DVPO] will not stop someone who intends to harm the person I refer to as the targeted individual rather than protected person as courts often do.[en1] However, it is a law enforcement tool that may allow for interdiction of the potential perpetrator which would not otherwise be legally possible. It also inhibits the respondent’s liberty whether he or she is a likely perpetrator of Domestic Violence. It is for this reason that it is imperative that a DVPO only be properly granted. The Indiana Court of Appeals has succinctly reasoned why this caution must be observed;
”[A]t the state level, violation of the trial court’s protective order is punishable by confinement in jail, prison, and/or fine. Furthermore, after the trial court has issued a protective order, it is a federal offense for a respondent to purchase, receive, or possess a firearm if the protected person is his current or former spouse, a current or former significant other, or a person with whom the respondent has a child. Thus, an improperly granted protective order may pose a considerable threat to the respondent’s liberty.”[en2] [emphasis added][en3]
Vacating the Domestic Violence Protective Order
The Indiana Court of Appeals on 26 March 2015 rendered an opinion in A.A. v A.S. heard by Judge Calvin D Hawkins in the Lake County Superior Court. The DVPO case arose from the parties’ marriage. Their marriage was dissolved on 24 September 2013. Strategically, on the same day, A.S. filed a DVPO petition [“2013 Petition”] against A.A. alleging that A.A. had committed multiple acts of Domestic Violence and stalking against A.S. in 2012. The trial court granted an emergency ex parte order for protection.[en4] On 22 October 2013, the trial court dismissed the petition due to A.S.’s failure to show that Domestic Violence had occurred by a preponderance of the evidence. That should have ended the litigation on that issue.
However, on 04 June 2014, A.S. again petitioned [“2014 Petition”] for a DVPO against A.A and appeared pro se at an ex parte hearing in front of Judge Hawkins. The trial court granted an ex parte order for protection and set a hearing on the motion. On 03 July 2014, A.A., within the time limit prescribed by statute[en5], filed a motion to dismiss 2014 Petition. Judge Hawkins denied the motion to dismiss at the outset of the 28 August 2014 hearing. At the hearing, A.S. recounted many incidents of domestic abuse which occurred prior to filing 2013 Petition. The last Domestic Violence incident was alleged by A. S. to have occurred in January of 2013. When asked by counsel if there had been any incidents following 2013 Petition A.S. responded, “No, but I don’t want any more to happen.” The trial court then found that Domestic or Family Violence had occurred sufficient to justify the issuance of a DVPO, that A.A. represented a credible threat to the safety of a A.S., and that granting to A.S. a one-year protective order against A.A. was necessary to bring about a cessation of the violence or the threat of violence.[en6]
A.A. appealed citing the doctrine of res judicata.[en7] A.S. argued that the matter wasn’t settled because the dismissal of 2013 Petition was not rendered “on the merits,” as is required by the second element of the res judicata doctrine. However, the order dismissing 2013 Petition states, “The Petitioner has not shown, by a preponderance of the evidence, that domestic or family violence, stalking, or a sex offense has occurred sufficient to justify the issuance of an Order for Protection.” Clearly there was a hearing, evidence was presented, witnesses heard, and a judgment rendered on the merits. Accordingly, A.S. was barred from attempting to gain a subsequent DVPO based on any allegations of Domestic Violence prior to that previous hearing in 2013. Res judicata exists because it prevents dissatisfied litigants, like A.S., from seeking to get a different judge to hear the same matter. Trying to re-litigate before a different judge is called forum shopping. The doctrine of res judicata brings finality to litigation and reduces redundant litigation by not permitting parties who had been denied relief to re-petition in different courts.
The panel in reversing Judge Hawkins reasoned, “[t]he trial court was precluded, under the doctrine of res judicata, from granting a protective order based on incidents that occurred prior to [the previous hearing], and there were no alleged incidents of misconduct which occurred after that [hearing]. Therefore, the trial court’s grant of the order for protection was clearly erroneous.”
Res judicata
The doctrine of res judicata prevents the relitigation of a matter already adjudicated. This is the basis for the prohibition in child custody modification hearings on the submission of evidence relating to that which occurred prior to the last date that evidence was submitted in the previous custody hearing.[en8] There are however exceptions to this rule[en9] which I will not go into here but can develop in individual cases as those exceptions are fact specific. Res judicata applies when the same matter is brought before the court which had already been ruled upon and settled.
Res judicata serves the purpose of judicial economy. This rule is intended to bar the relitigation of a matter already brought to finality. That is, when a court of competent jurisdiction, including an appellate court or the underlying court on remand, has entered a final order as to the parties on a claim, demand, or cause of action the parties or their privies may not bring the same claim, demand, or cause of action to the court again.
Child Custody/Parenting Time Modification
To seek a change in child custody or parenting time orders Indiana has codified the requirements that must be met for an order to be modified.[en10] All other states have similarly done so. The purpose of this is the presumption that “permanence and stability are considered best for the child’s welfare and happiness.”[en11]
Therefore, the procedural hurdle which has been established that must be overcome is twofold; 1] there must be a substantial change in one of the enumerated factors provided for in statute, and 2] the modification must be in the best interest of the child.[en12] The modification statute provides that the court is not to consider evidence preceding the last custody hearing.[en13] There are exceptions though. It is the failure of practitioners and parents to understand the exceptions that lead to the mistaken belief that events prior to the previous hearing are off limits. The doctrine of res judicata, and more likely in child custody case collateral estoppel[en14], is not an absolute bar to presenting evidence from a prior child custody hearing. The Court of Appeals has held that it is well within the discretion of the trial court to hear prior evidence stating that prior evidence of “past behaviour was a valid predictor of future conduct.”[en15] Although prior evidence may be heard the doctrine of res judicata requires, and the Court has similarly held, that the change in the factors for considering modification of custody must have occurred subsequent to the previous hearing on custody.[en16]
Conclusion
The doctrine of res judicata provides that matters previously settled may not be re-litigated. In the case examined here it was the denial of a petition for a DVPO and, as I have explained, it is also applicable to child custody and parenting time matters. Incidents of Domestic Violence occurring prior to a previous hearing or decision may not be properly admitted unless for the purpose of demonstrating a pattern of behaviour relevant to a cause of action arising subsequent to the prior court action. In the immediate case the Court correctly applied res judicata because the matter had been settled when a prior court dismissed the claim and no new allegations had arisen.
Child custody matters however are not fully settled until the child has been emancipated. For purposes of res judicata child custody matters are resolved until there has been a substantial change in at least one of the essential factors for determining custody and parenting time. Events prior to the previous submission of evidence may be considered relevant, and appropriately admitted, so long as such evidence is connected to the change occurring following the previous submission of evidence.
Notes
[1] I avoid use of the term “protected person” because I feel that it can give the target of Domestic Violence a false sense of security in that he or she is now protected. It is still incumbent upon any person to be vigilant in providing for his or her own security regardless of any Domestic Violence issues.
[2] Barger v Barger, 887 N.E. 2d 990, 993-94 (Ind. Ct. App. 2008) (internal citations omitted)
[3] I note that the Court of Appeals uses the pronoun “him” in the example when referring to someone who is the respondent in a DVPO as a means to demonstrate the ubiquity of which abuser is used synonymous with males although perpetrators are about equally divided by gender.
[4] Indiana Code section IC 34-26-5-9(a)(1) provides that if it appears from a petition for an order for protection or from a petition to modify an order for protection that domestic or family violence has occurred or that a modification of an order for protection is required, a court may, without notice or hearing, immediately issue an order for protection ex parte or modify an order for protection ex parte.
[5] Indiana Code section 34-26-5-10(a) provides that if a court issues an order for protection ex parte or a modification of an order for protection ex parte and enjoins the Respondent from performing certain acts then, upon a request by either party not more than thirty days after service of the order or modification, the court shall set a date for a hearing on the petition. The hearing must be held not more than thirty days after the request for a hearing is filed unless continued by the court for good cause shown.
[6] Indiana Code section 34-26-5-9 provides: A finding that domestic or family violence has occurred sufficient to justify the issuance of an order under this section means that a respondent represents a credible threat to the safety of a petitioner or a member of a petitioner’s household. Upon a showing of domestic or family violence by a preponderance of the evidence, the court shall grant relief necessary to bring about a cessation of the violence or the threat of violence.
[7] The doctrine of res judicata bars the litigation of a claim after a final judgment has been rendered in a prior action involving the same claim between the same parties or their privies. Small v. Centocor, Inc., 731 N.E.2d 22, 26 (Ind. Ct. App. 2000), reh’g denied, trans. denied. The principle behind this doctrine, as well as the doctrine of collateral estoppel, is the prevention of repetitive litigation of the same dispute. Id. The following four requirements must be satisfied for a claim to be precluded under the doctrine of res judicata: 1) the former judgment must have been rendered by a court of competent jurisdiction; 2) the former judgment must have been rendered on the merits; 3) the matter now in issue was, or could have been, determined in the prior action; and 4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies. Id. MicroVote Gen. Corp. v. Indiana Election Comm’n, 924 N.E.2d 184, 191 (Ind. Ct. App. 2010).
[8] Indiana Code 31-17-2-21[c] provides that “[t]he court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating the the best interest of the child as described by section 8 and, if applicable, section 8.5 of this chapter.”
[9] Indiana Code Section 31-14-13-9 provides: In a proceeding for a custody modification, the court may not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described in section 2, and if applicable, section 2.5 of this chapter. [emphasis added]
If a party raises a previously litigated issue or fails to object when it is raised then that party cannot later claim error. “A timely objection is a prerequisite to appellate review,” Werner v. Werner, 946 N.E.2d 1233, 1246 (Ind. Ct. App. 2011) (quoting Trout v. Trout, 638 N.E.2d 1306, 1397 (Ind. Ct. App. 1994), trans. denied), trans. denied.
[10] Modification of custody and parenting time is controlled by Indiana Code 31-17-2-21
[11] Lamb v Wenning, 600 N.E. 2d 96, 97 (Ind. 1992)
[12] Indiana Code 31-17-2-21 at [a]
[13] Id at [c]
[14] The collateral estoppel doctrine states that a prior judgment between the same parties on a different cause of action may not be re-litigated as to the issues in controversy upon which the finding or judgment was rendered. When an issue of ultimate fact has been determined by a valid judgment, that issue cannot be again litigated between the same parties in future litigation.
[15] Arms v Arms, 803 N.E. 2d 1201, 1209 (Ind. Ct. App. 2004) (evidence from prior hearing was just as relevant to instant hearing, as past behaviour was a valid predictor of future conduct.)
[16] Wolljung v Sidell, 891 N.E. 2d 1109, 1111 (Ind. Ct. App. 2009) (We note that a trial court is limited to considering changes in the factors that have occurred since the last custody decree.) note: I propound that factors occurring “following the close of evidence” would be a more accurate standard to use considering the lapse of time which allows for the submission of proposed TR52 findings and conclusions as well as the judicial officer’s time to write and deliver the order. I have yet to find a need to make this argument at either the trial court or appellate level.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
I have been accused of blaming a murder victim for her own murder!!!
While various ghouls and goblins make their rounds tonight seeking to fright there will be those who cower within their own homes for fear of the specter of Domestic Violence. On this day, the last in Domestic Violence Awareness Month, I present a proposal that I have sent to members of the Indiana General Assembly recently for consideration in the 2014 legislative session.
In 2012 I was contacted by Joseph Warnock, a prisoner at the Wabash Valley Correctional Facility serving a term for murder. The murder was that of his estranged wife, Angie, on 22 June 2009. This came after a period of time in which Mr Warnock felt like the “whole world was coming crashing down around me.” The trigger was the 18 June 2009 DVPO which forbade him from having contact with his children although nowhere in the DVPO petition that Angie filed did she allege that he had committed or threatened to commit any act of DV.
For Joseph the murder was the result of culminating feelings of frustration and helplessness. Likely, each of us has faced a moment of frustration where we say something hurtful to someone or destroy the object of our frustration. Be it an automobile, electronic gadget or some other manifestation of our technologically advanced society it seems that even when we are doing exactly as supposed to, and more often when we are rushed, these devices fail to perform in some way. We know that smashing them to bits would be therapeutic but would align us no better to our end goal than walking away. Even the most ardent won't-stop-and-ask-for-directions souls will break down at some point and place a call halfway around the world for tech support or just drop off the instigator of their frustration to a repair shop.
Imagine now that your estranged spouse is surreptitiously planning to relocate your children to Hawaii. You discover this through freight charges applied to your credit card. That on the Thursday preceding Mother's Day or Father's Day a judge orders that you are barred from contact with your children through a Domestic Violence Protection Order [DVPO]. To exacerbate your frustration and feeling of hopelessness you receive a text message that reads, “Face the music, you're not going to see the kids.”
In our criminal code we do acknowledge that while we are responsible for our actions and are to be held accountable there can be triggers that provoke us into these actions. Our legislature, aware of the disastrous effects that provoking someone can have, has added “provocation” [IC 35-42-2-3] to our criminal code. This does not provide an underlying offender with a mitigating factor for sentencing but is a separate offense, oft applied to the “victim” for instigating the underlying attack. Thus our legislature was aware that "victims" do induce an attack on themselves.
Joseph Warnock has stated to me, “I hate to say it but if [the judge] would have vacated the order that day, I could have seen and been with my kids that Father's Day, it probably would have prevented what happened.” This is not an effort on his part to diffuse blame as he also said, “I take and accept responsibility, it didn't matter what my wife was doing, I had lawyers, courts and judges I could have dealt with.” He has been contrite but also acknowledges the reality of the situation in saying, “I'm very sorry for what I did. It's all my fault, I definitely think the DVPO was influential in contributing to the murder.”
Joseph mentioned some resources that he could have accessed to help allay his frustration, but all are judicial in nature. When faced with the taunt of “you're not going to see the kids” coming just before Father's Day and knowing that their belongings have already been shipped to Hawaii the availability of the judicial process, slow as it is, is of no comfort. Instead an immediate outlet for frustration is needed. There needs to be a comforting ear that can listen to a parent's despair and help channel the frustration in an appropriate manner.
I propose that Indiana Code 34-26-5-3 be amended to include a requirement that courts attach a list of resource to the DVPO that could be accessed by the Petitioner or Respondent at anytime. This would include mental health counselors, police, legal aid and voluntary incarceration with all assistance being confidential and no payment or payment arrangement being required at the time of service. I sent the proposal to Mr Warnock who replied, “I certainly agree and love the idea of there being a resource list attached to the DVPO. What a tremendous idea, and that very possibly may have prevented me doing what I did. If I would have had in front of me places to call, places to help me deal with the stress that was involved with the situation, places to vent, etc. that very well may have made the difference.” It may even be better to require that a counselor at the county mental health department or an agency that serves the jurisdiction immediately contact the parties to open dialogue.
I don't want anyone to be subjected to the terrors of Domestic Violence. I especially don't want someone to be killed. The Warnock situation is most tragic in that on 22 June 2009 Angie and Joseph's daughters lost both parents to the effects of a hostile child custody battle.
Amazingly, I was personally vilified [which I am sure will continue] for my attempts to reduce acts of DV by addressing the matter in an open and honest way regardless of political ideology or financial motivations. In the Summer of 2009 I had never heard of Angie or Joseph Warnock. Two days after the murder, having only reading a newspaper account of the incident and relying upon my accumulated wealth of knowledge in the field, I made the following observation in a blawg posting: Often times children are withheld from the other parent as punishment for a perceived wrong. This is commonly done through restraining orders which in the majority of cases do not even involve an allegation of violence.
This is another case that demonstrates that a Protective Order does not protect and may actually lead to the death of a parent who was otherwise not threatened. In child custody cases every effort should be made to ensure that the children maintain healthy relationships with both parents. Not doing so cannot only damage the children but, as in this case, cost the alienator her life.
This is very strong language which I firmly stood upon and still hold to. This is not an effort to boast about my behavioural and personality intuition but, instead, is to note the well established relationship patterns between divorcing parents. It had been during the previous session of the Indiana General Assembly that I had been asked to give a presentation on false allegations of abuse and the affect on child custody proceedings. Thus these patterns were fresh in my mind.
Joseph has told me that he felt that Angie was using control of the children to punish him for a perceived wrong. In this case there was no allegation by Angie that Joseph had been violent or was a threat to her. [see page 12 of this document]. Joseph has repeatedly said that he is responsible but acknowledges that the DVPO was a contributor – “I'm responsible, but I think our system failed.” I referred to Angie as an 'alienator' – someone that tries to sabotage the children's relationship with the other parent. If getting a DVPO without cause – no allegation of abuse – then beginning the process of secretly relocating the children to what is effectively a foreign land, and finally sending the taunting message “you're not going to see the kids” is not alienation then I have misapplied the term.
Some will argue that Joseph Warnock must have been a violent abuser based upon the ultimate outcome. The more enlightened realize the power of self-fulfilling prophecy. This has been scientifically demonstrated through numerous experiments like the one by Rosenthal [1966]. In that, 18 school teachers among various grades were given a roster of their students along with corresponding IQ test results. There existed a statistically relevant correlation between the students' IQ and their subsequent testing results at the end of the year for all levels. However, researchers had randomly assigned IQ scores to the students. The performance of the students became consistent with the premise of their intelligence. This became known as the expectancy effect. The same outcome is often seen in juvenile justice. Children who are told that they are bad or criminals have a higher recidivism rate than those who are told they have value, are still learning, and simply made an error in judgment – condemning the behaviour not the person. Can a person be conditioned to reflect a particular level of intelligence, criminal behaviour or turn violent? Yes. Take a man who has not behaved violently, tell him that his is violent, remove him from his children and taunt him with threats that he will never see his children again and don't be surprised if the result is violence.
Divorce and contentious child custody litigation already produces enough stress and emotionally taxes the parents without inducing the additional feelings of betrayal and hopelessness that an unfounded DVPO can initiate. Parents in this situation don't need to be isolated to allow their subconscious to fulfill a script but instead need to be embraced by a system and community that shows that it cares about children.
Please contact your legislator and request that he or she support legislation to provide resources to parties subject to a DVPO.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
As a child custody policy advisor I have written and had child custody related legislation passed into law. My counseling of lawyers and appearances as an expert witness have helped them achieve more favorable results for their clients including winning appeals, gaining parenting time, reducing conflict, and mediating agreements. Additionally I made important contributions to the amended Indiana Parenting Time Guidelines that went into effect March 2013 and am currently formulating recommendations for the Indiana Child Support Guidelines which are to be amended this year. For parents I offer child custody based life coaching to help them maintain control of their lives and increase their fitness as parents so they can truly serve the best interest of their children.
