Shootings, Lock-Downs and the Psychology of Self-Preservation

Early today, while trying to serve a warrant, a Boone County Deputy Sheriff was shot by a wanted suspect. The immediate response to this was a call out to local and nearby police agencies as a chase ensued for three suspects. The warrant was being served on the suspect in the city of Lebanon and the chase took place within the confines of the city. There was also a secondary response; a lock-down throughout the city.

Police advised that people stay off the streets and go to a safe place while the search for suspects continued. Public buildings such as the US Post Office, library, Boone County Courthouse, and Lebanon Community School Corporation schools were also barricaded. Additionally some banks and other commercial buildings were also closed. A person caught on the street in downtown Lebanon could have found it difficult to get off the streets and into a building thus being left to fend for himself or herself.

The police response included officers from at least five agencies which included two helicopters and scores of ground officers. This elicits the thought that it is reassuring to live in a community that, were I shot, would provide a significant police response to attempt to apprehend any suspects. The media would also step in and interrupt their broadcasts to show photos of the suspects to the community to assist in the effort. But I digress from what I say in jest to the common feeling that I and many people have when seeing the overwhelming police response to apprehend suspects who are not a threat to the general population but have harmed a law enforcement officer - “They wouldn’t all be out here like that if I had been shot.”

There is a rational reason for both locking people out of buildings to fend for themselves and the police response to officers being harmed. It is the ego. It is the biological drive for self-preservation.

People on the inside of buildings lock others out because of all the people on the outside who want to come in to seek shelter it could include a suspect. A suspect who may harm those already in the building if the suspect feels that his or her flight may be jeopardized by those in the building.

Likewise police officers will always respond in overwhelming support for other officers for the same reason. Contrary to a possible perception, it is not because they don’t also want to catch suspects who harm members of the general population or because the police have a penchant to only serve members of their exclusive club.

It may seem disingenuous to speak of protecting and serving the community and then diverting attention from the community to serve the interests of another officer but it is not. Not, at least, from a psychological perspective.

Members of the general population typically do not aid or assist in protecting members of law enforcement. Yet, law enforcement is expected to show unilateral altruism toward the public. However, from a survival perspective, reciprocal altruism has proven to provide a survival advantage. This is similar to kinship selection which favours nepotism.

We have recently been able to see this biological preference in action during a school shooting incident in Florida where a law enforcement officer did not place himself in jeopardy while the shooting was occurring. There was no biological incentive for him to do so. The response would have been different had the shooting been taking place within a police station against other officers. This is the result of a top down attitude. That officer learned it from his sheriff. Law enforcement officers may rely upon other officers from within their own agency as well as others whom they may have never met to protect them during the course of their duties yet they have no expectation to similar protection from the general population. This is implicitly or subconsciously expressed. It is not a conscious, purposeful attitude.

The overwhelming police response to an ‘officer being harmed call’ serves the biological interest of those responding. It demonstrates to all other officers that I will always be here when you need my assistance. I will put my life on the line for you. Implicit in this is the expectation of reciprocal action. An officer will put his or her life on the line to protect another because he or she expects that same protection. This affords all officers a greater opportunity to pass on their genes or to stay alive and employed so they may assist in supporting their existing offspring or providing personal protection for them.

Lock-downs and police responses to police harmed incidents serve the biological interest of those served by them. They are selfish actions which serve to protect the genetic material of those benefiting from these actions. It is no different than dying to protect two siblings or eight cousins; they each pass on the same amount of your shared genetic material. Passing on genetic material is what got you here. From an evolutionary biology perspective it is those who were selfish enough to protect their offspring and kin which got their genes or those genes they share passed along.

So, whatever way the socially acceptable breezes may blow there is one thing that is not going to change - selfishness. Cops will protect cops, people will lock others out leaving them in harm’s way, brothers will hire brothers and brains will continue to rapidly influence actions which precede rational thought but serve to protect the biological unit; the host of the genetic material.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

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.

Tweet

Subscribe to my child custody updates

* indicates required

Email Address *

First Name

Last Name

©2008, 2016 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

StuartShowalter.com

Drunkenness, Improper Driving and being a Lebanon City Council Member

A year ago I wrote County Prosecutor Disciplined by the Indiana Supreme Court for Drunk Driving is a Candidate for Judge of an Indiana Superior Court where I opened with;
Being a cyclist and advisor on the well-being of children I have no tolerance for the terrorist element known as ‘drunk drivers,’ people who randomly target the general population for their deadly assaults. Over the weekend I was provided with some documents that demonstrate that a current judicial candidate has a drunk driving offense conviction. Typically I like to expose the positive attributes of candidates, for 'mud-slinging' debases the legitimacy of the election process. I have no personal ax to grind with the candidate here but feel so strongly about this issue that I am compelled to put it forth.”

That was about a drunk driving conviction from about 20 years earlier of Boone Superior Court Judge Bruce Petit who was then the chief juvenile prosecutor for the Office of the Boone County Prosecutor.

Last week I received an email from Aaron Smith detailing the numerous alcohol related convictions and driving offenses by current Lebanon City Council member Jeremy Lamar who is a current candidate for an at-large seat.

Although Bruce Petit’s offense was decades old, and that I feel he is well intentioned toward the welfare of children, I was still unable to in good conscience vote for him because of that conviction. He and I talked about it and he was understanding and appreciative of my position.

Jeremy Lamar, however, stands in stark contrast to Judge Petit. Jeremy’s latest of three alcohol related criminal offenses is a 2015 conviction. He has nine total offenses relating to alcohol and/or driving. Not only should voters not give their tacit support to the killing of innocent people by drunk drivers through a vote for Lamar but Lamar should withdraw himself as a candidate.

These were not “errors in judgment” or “mistakes” as the apologists and enablers would lead you to believe. What these flagrant and ongoing offenses demonstrate is a pattern of contempt for Law and an unwillingness to accept responsibility to abide by the social strictures that are intended to facilitate a safe environment for all members of our community. Yet he has been granted the authority and sits in a position to create conditions or impose upon people mandates and prohibitions that affect their health and welfare. I believe as Aaron Smith who titled his email "Sad situation" that this is extremely unfortunate because Jeremy has always been friendly to me and willing to hear any concerns. I feel that those are two essential attributes of being a public servant. However, those cannot excuse the contempt that he has demonstrated for our moral code.

In Death Penalty for Drunk Driving I rationated why drunk driving is a greater offense against the public order and safety than ‘cop killers’ who strike when a warrant is being served on them. In arguing why drunk driving should be a death penalty offense if cop killing is I made an analogy between drunk drivers and, among other terrorists, the cop killers backed into a corner;
There is a distinction between the "cat backed into a corner" offender and the drunk driver. The drunk driver who kills did not set his sights upon a particular individual; a former spouse, a rival gang member or someone threatening his or her liberty. The drunk driver kills randomly and does it 5000 times a year. Every child at a school bus stop. Every parent walking his or her children along the sidewalk. Every driver on the road. All of these people are at risk of being the next victim much like being at the mercy of a sniper perched on a rooftop shooting randomly.

This is the way it is with drunk drivers. We don't know what location will be next. We don't know when it will happen. We don't know who the target will be. The only thing we know is that somewhere today a drunk driver will strike and kill using a vehicle and that it will happen multiple times. This is terrorism.

In El Salvador the penalty for the first drunk driving offense is death by firing squad. In Bulgaria a second offense can bring about the death penalty. California was the first state to convict a drunken driver of murder - in 1984. In North Carolina drunk driving killers have been convicted of murder for driving in a manner that showed wanton disregard for human life.

I find no logical consistency in legalized alcohol consumption and an age demarcation for such while marijuana is scheduled by our federal government as one of the most dangerous drugs, more so than cocaine. Many more people die from excess consumption of water than do from marijuana overdose. These contradictions cannot withstand a casuistry challenge. To balance liberty with responsibility along a moral or ethical continuum, substance laws should be based upon competency. That is, an applicant for a permit to purchase or consume any substance should be required to pass a basic test of knowledge of the substance, it’s risks, benefits, responsible use, and penalties for misuse. Clearly some people over the age of 21 years cannot responsibly consume alcohol as Jeremy Lamar has aptly demonstrated. There are others like my son who at 18 years has been exposed to and allowed to consume alcohol since grade school but just doesn’t. He doesn’t see much sense in it but may have a glass of wine once a year if that often.

Age does not make one competent when it comes to substance use. Responsible use can not be mandated either. But as long as the courts treat drunk driving as a peccadillo then offenders will continue to abuse their right to be among the population. Considering the historical context of the death penalty in that it is to forever remove the most dangerous persons from our midst then clearly it should be applied to the most deadly terrorist element we have; the drunk driver. But it won’t. Drunk drivers are the only criminal class who operate in the legal market and contribute significantly to the automobile production, maintenance, and repair markets at a rate greater than the average. They also are often elected to occupy positions of authority as Judge Petit, Judge Hughes in Hamilton County, Jeremy Lamar and an ad nauseum list of legislators, judges and other public officials have been.

Jeremy Lamar has said, “[i]t is my intention to leave this up to Lebanon voters to decide if they would like me to continue in office.” We will soon know whether Lebanon voters have chosen to give their support to the member of a class of people who participates in the random slaughter and disfigurement of innocent children.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

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.

Tweet

Subscribe to my child custody updates

* indicates required

Email Address *

First Name

Last Name

©2008, 2015 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

StuartShowalter.com

The Importance of Timing and Preserving Issues for Appeal

In November 2010 the talk around the high conflict parenting campfire was that the Indiana Court of Appeals in Paternity of CH had granted trial judges the authority to appoint a Level II parenting coordinator over the objection of parents. A reading of the opinion though revealed that Mother’s basis for appeal was her contention that the court lacked authority to appoint the PC without a request by either party. What the mother, Kristy A. Lamm, failed to acknowledge was that the trial court on its own volition suggested PC to the parties and she, contrary to her assertion that she did not agree to the appointment of a parent coordinator, had stated during the hearing, “absolutely . . . that would be great,” when the trial court announced that it was going to appoint a PC.

I was reminded of that when I read the 07 August 2014 opinion in Rippe v Rippe. In that appeal counsel for Appellant Jeanne Rippe, Timothy Logan, challenges three trial court orders. The final of the three addressed the issue of wife’s contempt for failing to disperse about a half million dollars to husband as ordered by the court. Instead of having a hearing Mr. Logan and counsel for husband on the record stipulated that they agreed to proposed findings and conclusions on the outstanding matters, including wife’s contempt finding, which the trial court adopted as its order ver batim.

The Court rightly opined, citing a long held standard, that the issue was waived by Mr. Logan failing to object to the agreement at the trial court level. The opinion states, “To the extent Wife’s arguments challenge the November 2013 order, we note that Wife agreed to the provisions in this order at the November 2013 hearing and did not raise any objections to it. She cannot challenge the agreement for the first time on appeal. See Northern Indiana Public Service Co. v. Sloan, 4 N.E.3d 760, 766 (Ind. Ct. App. 2014), trans. denied. The issues in this order are waived. See Einhorn v. Johnson, 996 N.E.2d 823, 828, n. 4 (Ind. Ct. App. 2013), trans. denied, (finding waiver where a party failed to make an argument to the trial court).”

As to the other two trial court orders, both of which were final appealable orders when issued in 2011 the Court also rightly noted that it lacked jurisdiction because a Notice of Appeal was not filed within 30 days. I take this opportunity to stress the importance of the time limitations in the Indiana Rules of Appellate Procedure. Time limits are not discretionary. Failure to file on time in a jurisdictional sense means that the document does not exist. Mr. Logan and all attorneys who file appeals should be aware of these most basic of rules but it is always an ongoing display of incompetence that I see when reading the opinion in Indiana child custody cases.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

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.

Tweet

Subscribe to my child custody updates

* indicates required

Email Address *

First Name

Last Name

©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

StuartShowalter.com

28 Year Protective Order Term Vacated by Indiana Court of Appeals on Rehearing

I previously wrote about a 28 Year Protective Order Term issued against an Indiana woman which was upheld on appeal. The basis that the panel relied upon was that the woman had agreed to the extension of the PO. Typically a PO is extended by two years[en1] which would be a likely assumption. In agreeing to the extension the woman complained on appeal that she had not agreed to a 28 year term.

As I assist parents through handling the process of child custody battles and litigation I often hear complaints about what the court did to them and how it isn't fair. I will again take this opportunity to restate that “fair” is a place with stinky animals, greasy food, and carnival rides. You don't find fair in a courtroom. Rather, the courts are intended as a due process forum. Due process is an opportunity to be heard.[en2] Being heard entails much more than simply saying your piece - presenting your story.

The traps that lawyers and, more often, self-represented litigants succumb to numerous and foremost is the opportunity to object. Failure to object constitutes waiver of the issue.[en3] Prior to the hearing is a request for special findings and conclusions of law[en4] which requires a judicial officer to state the specific evidence relied upon and reasons for the judgment. Special Findings place a higher standard upon the Court of Appeals to uphold a trial court when review has been sought.[en5]

Appeal is a method of challenging the judgment of the trial court by arguing that the trial court was in error or applied an improper standard in coming to its conclusion. Appeals must be taken within 30 days of the judgment being appealed or the issue is waived.[en6] If the decision of the appellate panel is not satisfactory to the Appellant then a rehearing or transfer may be sought by the Appellant. Rehearing is asking the Court of Appeals to reconsider the issue while transfer is asking the Indiana Supreme Court to consider the matter. Both must be filed within 30 days of the decision.[en7]

In this case AN properly sought rehearing which was granted for the limited purpose of examining the prior decision of this panel which upheld the 28 year PO term. The panel this time concluded that the 28 year term order was improperly issued based upon the need for specific findings that the women posed a threat of future violence. The panel relied upon a prior decision which stated;
For example, at the state level, violation of the trial court’s protective order is punishable by confinement in jail, prison, and/or a 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. [en8]

The matter is remanded to the trial court “to determine a reasonable extension of [the] protective order.” Thus, by availing herself of due process offered by the courts this women won't be lamenting and complaining until the year 2040 that she is under the burden of “an unlawful protective order.” Others should take heed.

notes
[1] see Indiana Code § 34-26-5-9(e)
[2] “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
[3] We decline to address an issue for the first time on appeal upon which the trial court did not rule and where the issue was not raised below. See GKC Ind. Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (“As a general rule, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court.”).
In the absence of a specific and timely objection, a claim regarding the admission of evidence is not available on appeal unless it constituted fundamental error. Troxell v. State, 778 N.E.2d 811 (Ind. 2002).
In order to preserve for review a claim that the trial court erroneously admitted evidence, a specific and timely objection must be made. Tate v. State, 835 N.E.2d 499 (Ind. Ct. App. 2005), trans. denied.
The failure to object at trial waives any claim of error and allows otherwise inadmissible hearsay evidence to be considered for substantive purposes. Johnson v. State, 734 N.E.2d 530, 532 (Ind. 2000).
[4] See Indiana Rules of Trial Procedure, Rule 52(A)
[5] The trial court in this case entered findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). Accordingly, our standard of review is two-tiered: first, we determine whether the evidence supports the findings and, second, whether the findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213 (Ind. 2012). We view the evidence in the light most favorable to the judgment and defer to those findings if they are supported by the evidence or any legitimate inferences flowing therefrom. Id. Legal conclusions, on the other hand, are reviewed de novo. Id
[6] The Indiana Rules of Appellate Procedure provide that a party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty days after entry of a final judgment. In re D.L., 952 N.E.2d 209, 211 (Ind. Ct. App. 2011), trans. denied (citing App. R. 9(A)(1)). “The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal.” Bohlander v. Bohlander, 875 N.E.2d 299, 301 (Ind. Ct. App. 2007) (citation omitted), trans. denied
[7] see Indiana Rules of Appellate Procedure (2014) Rule 54(B); Rule 57(C)
[8] Barger v, Barger, 887 N.E.2d 990, 993-94 (Ind. Ct. App. 2008)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

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.

Tweet

Subscribe to my child custody updates

* indicates required

Email Address *

First Name

Last Name

©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

StuartShowalter.com

Indiana Court of Appeals Reverses Primary Parenting Time Modification from Mother to Father

In the unpublished opinion of Gallagher v Gallagher a panel of the Indiana Court of Appeals provided some useful guidance on sufficiency of evidence and the substantial change in circumstances requirement to modify physical custody. Last month I wrote Shared Parenting Time, Joint or Sole Legal Custody, and Joint or Primary Physical Custody - Indiana which explains some of the custody laws and the processes involved. You may also refer to that for definitions of the custody terms used here.

In Gallagher the parents by agreement had shared legal custody while mother had primary physical. Father moved to modify the agreement based primarily upon an improvement in his condition, particularly the stability he has attained including plans to marry. At the hearing the GAL advised to maintain the status quo since both parties had shown improvement during his involvement and no parent could handle parenting on their own. I tend to agree with the GAL on the point that a child generally has a better outcome when two parents are involved in his life but it is unusual to hear it said.

Mother indicated that she wished to maintain the custody arrangement. Father and his fiancé testified that it was in the Children’s best interest to be in their Father’s custody. At the close of the hearing, the trial court concluded that a substantial change in circumstances had occurred and that modification of custody was in the Children’s best interests. As a result, the trial court maintained joint legal custody but awarded Father primary physical custody of the Children. Mother then appealed based upon her assertion that Father failed to meet his burden of demonstrating that there has been a substantial change of circumstances and that custody modification was in the Children’s best interests. Her argument has segmented in three challenges to the court's findings being; (1) Mother had exposed Children to several boyfriends; (2) Mother had allowed her Child to skip school; and (3) Mother’s mental health.

Lesson #1
When your position is attacked on appeal you have an obligation to defend it. Failure to do, as the appellate court explains, allows for a reduced burden to be applied by the party seeking to challenge the ruling. The court noted that Father did not file an appellee’s brief. When an appellee does not submit a brief, the court will not undertake the burden of developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, they apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006). Thus, if mother could demonstrate that it appears that the trial court erred then the appellate panel needs look no further to reverse.

Lesson #2
Know what a substantial change is before seeking a modification. Father was required to demonstrate that there was a substantial change in at least one of the statutory factors. Custody orders may not be modified unless “(1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors [enumerated in I.C. § 31–17–2–8].” I.C. § 31–17–2–21; Browell v. Bagby, 875 N.E.2d 410, 413 (Ind. Ct. App. 2007), trans. denied. Particularly the court found that 1] The parties’ [C]hildren have been exposed to several of [Mother’s] boyfriends, including one who is now in prison; 2] The [C]hildren had better attendance when they lived with [Father]. They have adjusted well to both homes; and 3] [Mother] has improved regarding substance abuse issues. Her life is the most stable it has been.

As for 1] the appellate panel concluded, “Mother contends that even if her [boyfriend] is now in prison, it doesn’t support the finding that there was a substantial change in the circumstances. We agree. There is no evidence to suggest that [boyfriend’s] involvement with the Children significantly affected their interest in any harmful way.”

As for 2] the appellate panel concluded, “Evidence presented at trial shows that [child] was absent from school seven times, but five of those absences were excused. Mother argues that while this finding is supported by the evidence, it revealed nothing more than an isolated act of misconduct which does not support a modification of custody. We note that the noncustodial parent must show something more than isolated acts of misconduct by the custodial parent to warrant a modification of child custody. See Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App. 1996).”

As for 3] the appellate panel concluded, “Mother argues that the finding that her mental health, physical health, and substance abuse issues have improved only reaffirms her position that her life is stable. Mother therefore argues that the evidence did not support the modification of custody. . . . We agree with Mother that the evidence is contrary to the finding that there has been substantial change in the circumstances to justify a modification.”

Lesson #3
If you don't feel that the trial court acted within the confines of the law then appeal. This is a fundamental part of due process – the right to review of the trial court's ruling. There are limited circumstances in which an appeal may be taken or is justified. The appeal process is not an opportunity for a panel to rehear the case but, rather, is an opportunity to present to the panel that the trial court's ruling was contrary to law subject to the relevant standard of review. The panel in Gallagher explained the standard of review for parenting time modification:
When reviewing a custody determination, we afford the trial court considerable deference as it is the trial court that observes the parties’ conduct and demeanor and hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945–46 (Ind. Ct. App. 2006). We review custody modifications for an abuse of discretion “with a preference for granting latitude and deference to our trial judges in family law matters.” Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011) (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)), trans. Denied. We will not reweigh the evidence or judge the credibility of witnesses. Kondamuri, 852 N.E.2d at 946. Rather, we will reverse the trial court’s custody determination based only upon a trial court’s abuse of discretion that is “clearly against the logic and effect of the facts and circumstances or the reasonable inferences drawn therefrom.” Id. “[I]t is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by the appellant before there is a basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).

In this case Father bore the burden of establishing that the existing custody order was unreasonable and should be altered due to a substantial change in circumstances which has occurred since the date of the previous custody decree and affecting the Children’s welfare. See Cunningham v. Cunningham, 787 N.E.2d 930, 935 (Ind. Ct. App. 2003). Although the trial court made these findings;
A] The parties’ [C]hildren have been exposed to several of [Mother’s] boyfriends, including one who is now in prison;
B] The [C]hildren had better [school] attendance when they lived with [Father]. They have adjusted well to both homes; and
C] [Mother’s] mental health and physical health has improved. She has improved regarding substance abuse issues. Her life is the most stable it has been. [Father’s] life is the most stable it has been in some time as well;
although mother did not agree.

Particularly mother contended that she did not have several boyfriends. The Court agreed: “[W]e find no evidence to demonstrate that Mother had exposed the Children to several boyfriends. The only evidence in the record indicates that Mother had two boyfriends. Mother began dating J.W., the father to her four-year-old son, in 2009, and he later became incarcerated for nonpayment of child support. Mother contends that even if J.W. is now in prison, it doesn’t support the finding that there was a substantial change in the circumstances. We agree. . . .[W]e find that the trial court erred in finding the evidence about Mother’s past relationships demonstrated she had exposed the Children to several boyfriends. As such, we find that there was no substantial change to warrant a modification of custody ”

Next mother argues that the child's absences from school were an isolated incident not sufficient to modify custody. The Court agreed: “Evidence presented at trial shows that T.G. was absent from school seven times, but five of those absences were excused. Mother argues that while this finding is supported by the evidence, it revealed nothing more than an isolated act of misconduct which does not support a modification of custody. . . .[W]e find that this was an isolated act, and we don’t find it to be so egregious so as to support a modification of custody. ”

Finally, mother contends that the finding that her mental health, physical health, and substance abuse issues have improved only reaffirms her position that her life is stable. Mother therefore argues that the evidence did not support the modification of custody. The Court agreed finding: “[T]he evidence is contrary to the finding that there has been substantial change in the circumstances to justify a modification. Rather, a deterioration of Mother’s mental or physical health would in essence support the trial court finding that there has been a substantial change. See Owen v. Owen, 563 N.E.2d 605 (Ind. 1990) (holding that a worsening mental condition may constitute a change in circumstances sufficient to necessitate modification of custody). It would therefore follow that an improvement in Mother’s mental and physical condition should not have necessitated the trial court to modify the custody.”

In this case the trial court articulated its' findings as to the statutory factors in which a substantial change had occurred which warranted a change in primary physical custody. However, the evidence was weak, was not ongoing, or did not support the findings consistent with the statutory mandate that there must be a substantial change in the various factors that would justify a custody modification. You can read more about the appeal process here.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

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.

Tweet

Subscribe to my child custody updates

* indicates required

Email Address *

First Name

Last Name

©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

StuartShowalter.com

Why some Non Custodial Parents should be and how not to get help changing that

07 March 2014

I state it on my business card: Child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours. Get on the path to making yours optimal – now! I suggest that this is done by harmonizing finances, physical and mental health, spirituality, diet and lifestyle which are essential to achieving a better custody decision and parent-child relationship.
Essentially it all begins with attitude and a willingness to accept responsibility.

From the hundreds of requests I get per year seeking my assistance many likely deserve and would benefit from my services but I am limited in my time and therefore have established an application process. I also do these blog postings and public policy advising so as to be able to assist the greatest number of children possible.

Each year though I encounter one of those truly ungrateful, greedy, inconsiderate NCPs who were aptly designated as such and really show their asses to me. It didn't take any spring thaw or sweltering summer sun to finally get this year's best. Consider this email I received in February.

To: Stephanie - Stuart Showalter Scheduler [scheduler@stuartshowalter.com]
From: Tim Swindells [timswindells@yahoo.com]
Re: Stuart Showalter Child Custody Life Coaching

On February 3, 2014 at 7:51 PM Tim Swindells [timswindells@yahoo.com] wrote:

Dear Stephanie:

So much for truth in advertising on his website as to a "free" initial consultaion.  $150.00 is NOT free.  

This lie will be posted to all father's, and divorce groups I belong to on Facebook, as well as the individual who referred you'all to me.  The public needs to know the truth, plus the fact that it is obvious by your email he is not nationally available in any economical sense.  He is simply taking advantage of people's misfortunes just to turn a buck.

T.Swindells
Attorney

It is important to note that Mr Swindells was asked to provide his attorney number which he did not. His response relates to being asked by my scheduler to submit an application along with the initial $150 consultation fee. Here is the information for attorneys as it appears on my website.

ATTORNEYS
As a child custody coach Mr Showalter uses his vast child custody knowledge to help you achieve more favourable results for your client.  He will also increase your productivity, reduce your workload and lower costs for your clients. He can help you formulate trial strategy, negotiate settlements, draft documents, conduct research, prepare witnesses,assist your clients in understanding the process and provide opinion testimony about your client.

Through his vast experience he can provide to you knowledge about the temperament, practices and expectations of numerous judges or opposing attorneys. He even goes so far as to advise on what to expect from the other parent based upon his or her religious or cultural background. If an extra set of hands is needed during trial or detailed note taking then you should consider using Mr Showalter for that also.

Recently Mr Showalter provided input to the appellate attorney representing Craig Scarberry, the Anderson Indiana man who lost custody of his children because he changed his religious preference to that of agnostic. In the appeal of that judgment it was Mr Showalter's input that prompted the attorney to file a motion which resulted in the Indiana Court of Appeals issuing a Stay of the judgment.   Mr Scarberry's children were then returned to him.

Please contact Mr Showalter directly to schedule a no-fee initial consultation to discuss the services he offers.[emphasis added]

Nowhere do I offer free services to parents. Instead I ask for this.

SUBMIT YOUR APPLICATION NOW
Mr Showalter limits his assistance to only those parents whom he believes he can provide the most effective assistance or whose children are at the greatest risk.  He therefore requires that everyone have a referral and complete an application for services prior to deciding if he will provide assistance. Please contact his scheduler if you have additional queries.

CHILD CUSTODY COACHING APPLICATION [PDF] 

PRIVACY POLICY [PDF]

Mr Showalter requires that you have a referral to receive services.  This can be any attorney, judge, health provider or other practitioner.  Referrals are also accepted from your elected representatives.

As you can see from his email, Mr Swindell attempts to defraud me by claiming to be an attorney to get a free explanation of my services. When his ruse fails he unloads with his virulent attack on my character. This is the essence of the types of behaviours that judges pick up on which justify a rational child custody and parenting time order that protects children from being subjected to this type of parent. His bullying behaviour based upon his feeling that he is entitled to free services and that anyone who doesn't conform to his wishes is going to be unjustly maligned by him. That is not the proper course of action to take when seeking the assistance of someone. It's especially unwise to demonstrate this behaviour to a judge or anyone else who has input on a child custody decision.

To those who are truly motivated by seeking the best interest of their children I gladly accept applications. To those who would seek to exploit my services in an effort to bully other parties to the action and inflict emotional harm on children don't bother applying because I am going to have you figured out before you know it.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

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.

Tweet

Subscribe to my child custody updates

* indicates required

Email Address *

First Name

Last Name

©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.