16 November 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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“For the first time in three years I feel like I no longer have to worry that my children are going to be exposed to further violence” said Craig Scarberry when asked for his thoughts on Friday's ruling in a Madison County protective order case.
If you have been a follower of my child custody postings you are likely familiar with the case of Craig Scarberry, the Anderson, Indiana man who lost custody of his children for changing his religious preference from Christian to agnostic. The custody dispute with the children's mother, Christine Galbraith, has never really ceased as Scarberry continues to advocate for their children's well-being.
Both parents have subsequently remarried which has resulted in four adults, sometimes with different objectives and allegiances, interacting with each other. Those interactions have not always been amicable. The man Christine chose to marry is Brandon Galbraith. He is the incendiary element that creates an imbalance in the relations between these blended families. This leads to hostilities and a poor environment to which the children are exposed.
On Friday 15 November 2013 Magistrate Steven D Clase, Madison Circuit Court 2, issued an Order for Protection pursuant to the Indiana Civil Protection Order Act [IC 34-26-5-1] against Mr Galbraith on behalf of Craig Scarberry and his wife Courtney Scarberry. This was following a courtroom rant by Mr Galbraith, about a half hour in duration, during which he admitted to numerous offenses against Mr Scarberry including a physical attack, threats, and incidents of stalking or intimidation. Mr Galbraith demonstrated for the court his behaviours that are consistent with a domestic abuser or stalker. His domination of the proceedings [Scarberry got to speak no more than five minutes], his agitated physical composure, his use of rationalization for the offenses, and his demonstrated willingness to continue the behaviours led to the immediate granting of the requested relief. Mr Galbraith is now forbidden from being around Mr Scarberry and may not have any direct or indirect contact with him. This immediately prohibits Mr Galbraith from using the email account that he stated he shares with Christine. That is the account through which Christine directed Craig to use to send all communication to her. The underlying reason for the shared account now being apparent – Brandon has to monitor Christine's communications with Craig.
This is the situation that presents a danger to children of divorce. Christine has an overwhelming insecurity and no confidence in herself. She lacks control internally and thus seeks control through external means – having sole custody of the children. Because she lacks confidence in her own decisions she attaches herself to someone who assumes all control and decision making authority – Brandon Galbraith. He is the type of person who responds to the most basic drives and whose actions are manifestations of those primal instincts. Primarily he is territorial. Observations of him in court and the community reveal a substantially impaired intellectual functioning. His actions are aligned more heavily towards the impulsive end of the range and far from the more advanced rational thinking that has evolved in man over the eons. In short, he is a modern day cave-man with an attitude problem. His primary drives are securing territory, ensuring mate exclusivity and reproducing. Although Christine already had three children with Craig, whose basic needs she is unable to meet, she has birthed two additional children with Brandon. I anticipate, that if she is not already, that she will soon be pregnant. She must demonstrate her loyalty to her new mate – Brandon – by producing a greater number of offspring with him and providing resources to them while neglecting those to which Brandon has no biological connection – the ones who can't pass on his genes.
Like Christine, Brandon is also an insecure person who lacks confidence. For him though, this is the basis of his need to impose control rather than be controlled. To avoid confronting his perceived inferiority he must control his environment and those who breach the barrier that circumscribes it. This leads to his jealousy – the underpinning of his hostility. He is aware of his inferior intellect and guards against exposing it although he made a thorough presentation of it on Friday. This awareness leads to feelings of anger, fear and sadness. Brandon fears that Christine's allegiance remains to Craig. She feels as though she got “dumped” by Craig and desperately wants to rekindle the relationship. That is why she was still having sexual relations with Craig, as her ex-husband, while concurrently having sexual relations with Brandon. When Craig became aware he ceased the sexual activity with her. Brandon is keenly aware of who terminated that relationship and who wanted to continue it behind his back. Brandon is sad that he is second choice [or possibly much lower but second of those willing to be with Christine]. That he is only appreciated [that may be too generous – clung to may be appropriate] by someone with such low self esteem who isn't even wanted by a former partner for free sex. This leads to his anger, anger at himself for not being a more worthy suitor. Combining these results in jealousy. Brandon desires to be wanted as much as Craig by Christine. Brandon desires to be as good of a father as Craig. Brandon most wishes to not be subjected to the comparative measure of Craig. Thus, because he is unable to reconcile his own feelings, Brandon becomes hostile to Craig – the innocuous structure in whose shadow Brandon exists.
People like Brandon – men most often – are a danger to children for which they reside with but are not biologically connected. Genetically it is in their interest to devote resources to their offspring while neglecting those produced by another mate. Thus, babies are likely to be beaten to death, young girls are much more likely to be sexually assaulted and necessary support may be withheld by a man brought into the home who does not share a biological connection with those children. Brandon refers to the son of Craig and Christine as “my son” yet he has no legal or biological connection to him. He views the children as property and a barrier to his dominance. Christine is aware of these dangers as she has purportedly taken the children she shares with Craig out of the house while the two she shares with Brandon remain with him following or during his violent outburst. Christine's decision to have Brandon remain in her home is the substantial change to at least one of the factors enumerated under IC 31-17-2-8 that must be demonstrated for a change of custody. Factor 6 is the mental and physical health of all individuals involved. Allowing a violent person such as Brandon Galbraith to reside in the household with the children is not just poor judgment but weighs against the mental health of the parent who would expose the children to his ongoing violence. Factor 4(C) is the interaction and interrelationship of the child with any other person who may significantly affect the child's best interests which includes subsequent spouses. Here also is the children being exposed to an individual with a violent history whom she fears.
I often give clear notice that an order of protection is inappropriately named as it does not protect. However, in this instance it can provide some relief to Craig Scarberry in that Christine may no longer legally bring Brandon to a parenting time exchange, thereby reducing the likelihood that Brandon can physically attack Craig while the children look on and scream in terror. Brandon is now prohibited from repeatedly driving up and down the street where Craig's home is located and taking photographs of the children in the area – something that upset neighboring parents previously. Brandon and his 125 pound dog will no longer be allowed to approach Courtney Scarberry and glare at her. Brandon will not be allowed to harass other people about Craig. Craig coaches a sports team on which his son plays. Brandon became a coach on the team awhile after Craig but Brandon was promptly removed following threatening acts against Craig made during the children's practices.
Here we have a scenario for a change of custody to be granted based upon an underlying lack of fitness on the part of the custodial parent – her coping skills. Her method of addressing her own insecurities and lack of confidence in child rearing is to invite a dangerous, violent man into the household to control her life. This lack of fitness stems from her derogation of and attacks on the children's father – through proxy. Coupled with allowing a violent individual – who has attacked the children's father in their presence and has stalked father's current wife – to remain in the household clearly established a change in circumstances in which it is not in the best interest of the children to remain with her. In Arms versus Arms, [803 N.E.2d 1201, 1208 (Ind. Ct. App. 2004)] the mother had physical custody of the child, a caseworker stated that her current coping methods presented a risk for physical and emotional harm to her child. Mother spoke ill of Father and his girlfriend, calling them names in the child's presence. The child visited a psychologist who determined that the child's awareness of conflict had emerged and the child was being emotionally harmed by the behavior.
These “jeopardizing circumstances” caused the child great harm, and for the sake of the child's mental health, the Court concluded that Father had presented sufficient evidence to support the trial court's finding that it would be in the child's best interest to modify custody of the child to Father and eliminate overnight visitation with Mother to protect the child from psychological and emotional harm. In the Scarberry case we have more than speaking ill of the other parent and that parent's subsequent partner. Here we have the other parent being attacked and the subsequent wife stalked in the presence of the children. These “jeopardizing circumstances” are clearly enough to warrant a change of custody.
The court issuing the protective order has done what it can do in this case. Craig and Courtney as well as Christine, to some extent, have attempted to get along in their post divorce relationship. Craig and Courtney now have a tool to help mitigate the aggressive and dangerous acts against them by Brandon Galbraith. Unfortunately for Christine what will need to be done to protect her and the children in her household is up to her. I would like to be able to believe that Brandon treats her with the dignity and respect that she deserves as the mother of his children but based upon my observations of him and a review of the record I can't. Anyone who sits by and watches her children scream in horror and does nothing to stop the attack on their parent obviously knows her place in the relationship. From all of my Domestic Violence experience I can assuredly say that if it hasn't happened to her yet, an attack by her dangerous husband on her is forthcoming.
Christine Galbraith is writing herself a prescription for loneliness by welcoming a violent man into her life and that of her children. She will lose the older children to their father, she will lose her husband to the criminal justice system, and finally, she will lose custody of her remaining children through a CHiNS case.
If you are experiencing Domestic Violence report it to the police.
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. 
Sunday, November 17, 2013
Order of Protection entered against dangerous husband can produce a modification of child custody - IC 31-17-2-8
Tuesday, August 20, 2013
Common Core, Location and the Best Interest of Your Children
09 August 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Earlier this week I sat amongst our legislators in the large, comfy swivels chairs in the Senate Chambers listening to testimony about Common Core. The interim study committee on Common Core met for the first of three sessions to decide if it will recommend that Indiana adopt the Common Core standards for student achievement in Indiana.
While the purported intent of Common Core is to elevate student achievement throughout the United States by implementing the standards common to the countries with the highest student achievement – those in the Pacific Rim – no such common curriculum exist. The Common Core standards that have been established and adopted by 46 other states fall short of those of those of the successful Pacific Rim countries. Even if Indiana adopted the Common Core standards and even if the standards were consistent with those of the highest achieving students we would still not meet the level of achievement attained by those along the Pacific Rim. There is one underlying reason for this which in the most basic form is well known to realtors – location, location, location.
I live in a location that stands in stark contrast to that of the Pacific Rim. It's not noticed only by me. When my son, Therin, arrived for the summer this year we met near Butler University and eventually rode our bikes from there through Carmel, Zionsville, Whitestown and then arriving in Lebanon. Therin quickly pronounced that the people in Lebanon are slow – mentally. It's the same observation that I make on a regular basis just as I did after riding to Zionsville on Tuesday. As soon as I passed the Whitestown exit just south of Lebanon I noticed it. When I relayed the story of Therin's observation to my sister – a Chicago area resident – she immediately responded by saying that every time she comes down to Indy she notices it as soon as she passes Lafayette. Lebanon, Indiana and the immediate surrounding area is a dearth of human intellect and cognitive functioning on a massive scale. It's not from a lack of resources or opportunity though.
Lebanon, Indiana has a sufficient public school system, an extensive public library and ample internet access. So why are the residents only exceeded by nearby Thorntown when it comes to deficiencies in intelligence and brain functioning? The answer is location just as the realtors harken but not based upon any geological factors.
The reason is a human factor. Separate identical twin children born in contemporary Lebanon or Thorntown by moving one to the Pacific Rim and leaving the other to be reared here. I guarantee that the child raised in Asia as a reflection of the norm of both communities will be more intelligent and have higher cognitive functioning. In short, the child raised in Asia will have a brain hardwired in a superior manner to his sibling left behind. This is because children learn through observation - their environment is the passive teacher.
This is what proponents of Common Core have failed to observe or realize. Intelligence and cognitive functioning are not hereditary traits waiting to be released through training consistent with a rigorous standard. Instead these have a hereditary foundation but are developed environmentally. The environment in the Pacific rim is one of the pursuit of knowledge, learning and personal development. This is contrasted by the Homer Simpson environment of the other Boone County – the area outside of Zionsville.
The families that I know in those countries or who have immigrated here reflect the culture of learning and personal improvement that lead to their intellectual supremacy. From a child development perspective it is stimulation. Stimulation that comes from exposure to situations that challenge the higher level functioning of the developing brain as well as inducing logical thought processes.
So as a parent – especially one engaged in a custody dispute – it is not enough to select a location, school system or interactive toy. What will serve the best interest of your children is providing a safe, secure, enriching environment that fosters intellectual exploration and cognitive development. Some communities make that readily available while others make providing these necessities more of a challenge.
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.
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Friday, March 8, 2013
Obesity as a Factor in Indiana Child Custody Decisions
The factors that are considered in child custody decisions cut a swath across a broad range in pursuit of the best interest of the child. The minimum factors that a court must consider are found under IC 31-17-2-8 and the companion paternity statute 31-14-13-2. Specifically, factor 6 relates to the health of the children.
I have been building cases to help parents obtain custody decisions to benefit the children by using the obesity of the children or the other parent as an aggravating factor towards his or her fitness as a parent. Empirical data is suggesting that overweight or excessively fat parents are more likely to harm or neglect their children than those who maintain a healthy weight or fat percentage. The harm or neglect is not just related to the weight of the child. The UCL Institute of Child Health in London notes that usually obesity will be only one of a number of factors causing concern along with poor school attendance, exposure to or involvement in violence, mental health problems of parents and emotional or behavioural difficulties.
One of the eight factors in child custody decisions, 31-17-2-8(6), provides that the court shall consider "[t]he mental and physical health of all individuals involved." Thus the physical health of the parent and the children are factors that the court must consider. This is a point that has often been sidestepped in child-custody decisions but is now gaining greater attention and consideration coinciding with national debate about health and well-being issues.
If a child is oversized and one of the parents is also then I can establish the likelihood of a causal link and argue that the oversized parent is responsible for the harm to the child. This harm comes in various forms including, physical, emotional and social as found by the UCL Institute and other studies.
I have recently offered to help the obese mother of our son shed the extra pounds. Rather than use that against her in a custody proceeding I prefer to take the proactive step of assisting her as one of my Life Coaching partners. After all, she is the mother of our son who lives with her and anything that can help improve her health I believe will provide a related benefit to him. Of course I am doing this without a request that she compensate me.
My focus for this article is going to be on children and women. This is not based upon any desire to alleviate men of their responsibility towards maintaining a reasonable fat percentage. Quite to the contrary I am saving my harshest tirade for the ignominious waistlines of men, whom I will propound in a future posting should be thinner than women. Rather, it is women who are overwhelmingly responsible for the day-to-day care of children and food purchasing decisions.
The American epidemic of children being oversized can be directly attributable to the purchasing habits of women according to marketing research. This is primarily due to the busy lifestyles that befall the modern woman. This neglect of self and children is becoming the new cigarette smoking and is more often becoming a factor in child custody decisions.
The issue of size or weight does not rest solely on the physical attributes associated with the child and parent. I can extrapolate a greater association to mental fitness of the parent and espouse that there must then be a corresponding malaise or neglect towards other factors affecting the best interest of the child such as those which were indicated by the UCL Institute.
A parent who does not care enough to properly maintain his or her physical health and subsequently that of the child is going to more likely be neglectful other important areas. If the child is obese but the parent isn't then there is a discipline problem or, as is often occurring, a parent using "food" as a tool for gaining favour from the child torn between parents or as a substitute for a meaningful relationship with the child. Parents who fail to maintain proper discipline of their children subject them to increased risk of teenage pregnancy, incarceration, drug abuse and many other ills known to beset children lacking parental influence or proper supervision. As you can see there is much more to obesity than just the weight or size itself that can influence a child custody decision. Parents therefore need to carefully consider the ramifications of their child's weight and how to best mitigate the negative impression this can have during child custody litigation.
Get Proactive -
The good news is that it is not a hopeless cause although maintenance of a healthy weight may seem so, especially for those trying to manage a hectic lifestyle that includes job demands, familial obligations and managing one's own health. With proper guidance and a plan these areas and more are easily manageable.
There has been a paradigm shift not only in the family structure but the dynamics of responsibility in post dissolution households. Women are now facing greater challenges than ever before. Wages for women as well as occupational demands are now exceeding that of men in many geographical areas of the United States. This has not been without an effect on the women and the children.
Childhood obesity has been at the forefront of national health concerns for the past few years. Even with such attention, the rate for girls has remained flat while the rate for boys has increased over the past five years. Weight mismanagement is the new smoking. But unlike smoking -- which has falsely gained wide-acceptance as being an addiction not within the control of the user -- excessive fat gain is now known to also be a conscious decision. People don't just become fatter or catch obesity. Every calorie of food that enters the body is based upon a purposeful decision just like the effort that smokers go through to make their conscious decision to smoke each cigarette.
People who are obese often engage in various denial based claims for their condition. These are no more valid than those specious excuses invoked by smokers. Both are based on nothing more than willpower and the lack of acceptance of responsibility by those people.
As humans, like most species, we are endowed with an innate sense of self-preservation. This can easily be found in the flight-or-fight response to dangerous situations. The amount of planning and willpower that it takes to overcome our instinct is aptly demonstrated by those who pursue a more expedient demise. Those who have been successful in committing suicide have often failed in the past and have put a great amount of deliberation, planning and willpower, into completing the act. The same is true for those who seek to hasten their deaths through smoking or unhealthy caloric consumption.
For a clear demonstration of willpower watch the assassination attempt of President Ronald Reagan. A local police officer ducks for cover but a Secret Service agent steps forward and broadens his body in an attempt to catch bullets intended for Reagan. It takes an awesome amount of willpower to endanger ones own life in this manner. The Secret Service agent who had gone through years of training was able to do so. The police officer however, even though purported to risk his own life to protect and serve was unable to overcome that innate self-preservation instinct and attempt to protect President Reagan.
Other excuses for not maintaining a healthy lifestyle that make proper weight and fat management possible simply run the gamut from medical conditions to lack of availability of nutritional food. Yet it is often the decisions to consume non-foods or a poor diet that produce the adverse medical conditions or result in retailers choosing not to stock healthful foods. None of those excuses are greater than the will power or desire that humans possess when they seek to harm themselves such as the elaborate efforts they go through to get money for and then acquire cigarettes. If that same type of dedication was redirected towards maintaining a healthy diet then obesity would not be an issue.
I make no contention that it is a simple process to change the unhealthy and harmful eating habits that lead to obesity. After all, consumers have engaged in years of training to gain the willpower necessary to overcome the innate sense of self-preservation and instead consume edible garbage disguised as food. This has mostly be done through the direct and indirect promotion of garbage consumption as demonstrated on television commercials and programs where dialogue or product placement reinforces unhealthy decisions. Most of the marketing efforts by so-called "food" processors has been aimed at the impressionable minds of young children. The medium that regulates the exposure of children to these harmful messages is – the parents. When parents fail to mitigate this exposure and even participate in supplying the garbage to the children, that is neglect.
Child Neglect cases
Prior to becoming a more common contention in child custody battles involving divorced parents or paternity cases the “childhood obesity is neglect” issue was raised by governmental agencies charged with protecting children from abuse or neglect.
"Parental failure to provide their children with adequate treatment for a chronic illness -- asthma, diabetes, epilepsy, etc -- is a well accepted reason for a child protection registration for neglect," says the UCL Institute. Adding obesity, even though equally harmful, has not become as widely accepted yet. Dr Russell Viner of the UCL Institute says it is difficult to establish when obesity shades into neglect and becomes an issue for child protection. Viner placates some of the responsibility for the neglectful parents because the pressure on everyone to eat too much and exercise too little is so powerful. These factors are so strong that "for some parents, it is very difficult to stop their child gaining weight". It is this type of attitude that can undermine efforts to ensure that children get the needed help to fight obesity facilitated by neglectful parents.
He also pointed to the strong associations between food, feeding, caring and love stating, "[E]ating is a pleasure and you want to give your children pleasure." The problem here is often exacerbated in divorce situations where waring or high conflict parents often battle for the affections of the children. Children need to be shown real love and caring by parents through meaningful interactions not by the substitution of real food with playful, tasty and fun-to-eat garbage made to appear as though it were food.
JAMA states that, "mandated reporter laws may obligate physicians to contact child protective services in the cases of children for whom chronic parental neglect has resulted in severe weight-related health complications." But the UCL Institute says, "Removing children from their parents may not help obesity. There are few data on the weight of children in public care."
A recent study found that 37% of children in care were overweight or obese – but almost all of them had put on weight after they were put into foster care demonstrating that removal from the parents did not resolve the problem. Unlike these placement cases where the child is removed from the parents and the neglect is allowed to continue, child custody placement between parents raises a different issue. In this instance the court is not being asked to consider whether the child should continue to be under the care and supervision of the parents but, rather, which parent can provide the better structure and environment upon which to attempt to ensure that the obesity issue with the child is more likely to be ameliorated.
Oversized parents -
In examining childhood obesity and neglect in general from a preventative standpoint can we make a correlation between oversized parents and neglect? "As in all areas of child health, we have a duty to be open to the possibility of child neglect or abuse in any form," concedes the UCL Institute.
Courts, practitioners and litigants should all elevate the level of priority assigned to the mandatory consideration of "[t]he mental and physical health of all individuals involved" by focusing on the easy measures of physical health. These include BMI and basic vitals along with other measures such as the US Army fitness test. Obesity in a parent and the correlation to the children should be carefully examined and given greater attention and weight by the courts.
In following the development of obesity in parents there is well established evidence that environmental factors are a significant contributor. Essentially saying that the environment in which a child is raised will play a great role in whether the child becomes obese. This does not obviate the decision making power of the child as an adult as whether to engage in a healthy lifestyle and choose healthful foods. However, the child raised in an unhealthy environment with an obese parent will face a greater challenge to becoming a healthy adult once weened from the support and control of the parent.
While some children can thrive and develop healthfully while in the care of an unhealthy parent, few do. This is easily observable. When I am out in the community at eating establishments, school events, the library or other locations where children gather I fix upon an obese child and then try to observe the child reuniting with a parent. In very near to every incident the parent is also obese.
Conclusion -
Obese parents in general are harmful to children especially when given overwhelming control over the children. It has been established that obese parents are more neglectful to children than healthful parents. The long-term health and well-being of children is at significant risk when custody and placement is awarded to an obese parent.
Judicial officers are gradually becoming more attentive to this issue as national attention focuses on health and well-being. With proper counseling attorneys and litigants can also enlighten courts to the harmful effects of placement with obese parents. The best interest of children demands that weight and BMI be an elevated priority in child custody decisions.
If you are involved in a child custody dispute with an oversized parent or your child is oversized then it is imperative that you properly articulate this necessary consideration to the court.
Conversely, if you are the oversized parent then it is of greater importance that you set aside your own desires and focus on the best interest of your child by engaging in practices that improve your health and well-being as well as that of the children.
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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, July 20, 2010
Being an alcoholic doesn't boost child custody chances
What may seem obvious to most people didn't seem so to Robin Ann Parks who appealed the order transferring custody of her children to their Paternal grandparents because of her alcohol abuse.
The marriage of Parks and Cary Grube was dissolved in 2006. The father was awarded custody of the parties four children, ages 10-20 years now. In 2007 the parties agreed to modify custody transferring custody of the oldest child to the mother.
It is undisputed that despite being the noncustodial parent, Parks remained very active in the Children's lives.
Cary Grube unexpectedly died at his residence in late 2008. Parks was called to the home that night by the eldest child living there. She didn't stay long and left the children with the paternal grandparents. The children and grandparents believed that she was drunk at that time.
Cary's will stipulated that his parents, the Grube's, would have custody of the children. Following probate Parks filed a petition for custody of the children. The trial court heard evidence and denied her petition. She then appealed.
During these hearings, evidence of Parks's history of alcohol abuse was presented. Specifically, Parks was arrested twice for driving under the influence of alcohol. In addition, Parks's former friend and neighbor, Milissa Woolwine, testified that she used to care for the Children because Parks was intoxicated and that Parks would “come home drunk with a stranger” during her parenting time with the Children.
Similarly, Parks's former boyfriend, Kevin Hembree, testified that Parks was intoxicated “a hundred out of a hundred and twenty” days that she lived with him in 2007. During an in camera interview two children stated that they believed their mother was intoxicated at a birthday party for one of them, which occurred after Cary had died.
Moreover, pages from the journals of the two children were presented which noted that when Parks is intoxicated, she yells at them, calls them names, and tells them that she does not want to see them again. One child wrote that when she is on the school bus, she prays that her mother is not intoxicated when she gets home.
Parks' sole argument on appeal is that there was insufficient evidence to support the trial court's decision to award custody of the Children to the Grubes.
In custody disputes between natural parents and third parties, a presumption exists that it is in the best interest of the child to be placed in the custody of the natural parent. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 458 (Ind. 2009).
Nevertheless, third parties can rebut this presumption by presenting clear and convincing evidence that the best interests of the child will be served by placing the child in the custody of the third party. In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002).
Our Supreme Court has stated that the issue is not merely the "fault" of the natural parent. Rather, it is whether the important and strong presumption that a child's interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with another person.
When making an argument to the Court of Appeals I feel that it is important not to be annoying or petty. Park's failed to do this. In her brief she argued that she had received counseling following her second drunk driving arrest but had never been treated for "alcoholism". The court had this to say in response, "Parks' argument that we find error on this basis is a request that we engage in senseless hair-splitting, which we decline to do."
One thing I encounter in custody modification proceedings is parties attempting to use circumstances prior to the last custody proceeding. Indiana Code section 31-17-2-21(c) provides that “The 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 to the best interests of the child as described by section 8 . . . of this chapter.”
However, as the trial court did in this case a court may consider an ongoing pattern of activities that affect the child's best interest. So even though the 2003 and 2005 arrest for driving while intoxicated occurred prior to the 2007 custody modification, there was evidence presented that the mother was still abusing alcohol and had been doing so for an on-going basis dating back to at least 2003. Thus, it was proper to consider the pre-modification actions.
Finally, Park's argued that the trial court impermissibly relied upon the testimony and wishes of the children to live with their grandparents. Parks is correct that it is a "longstanding rule that a change in the child's wishes, standing alone, cannot support a change in custody.” Williamson v. Williamson, 825 N.E.2d 33, 40 (Ind. Ct. App 2005).
However, Indiana Code section 31-17-2-8(3) states that “The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age,” is a relevant factor when determining a child's best interests. Ultimately the court must make a decision based upon the best interest of the child but the court may, and should, consider the wishes of the child.
I am a parent who doesn't have custody of my child, not because of any wrongdoing on my part, and can sympathize with the desires of Ms parks to have custody of her children. However, I think it is clear from the case documents that she has a significant problem with alcohol and this affects her ability to be an effective parent to her children. Quite simply the lesson to take from this is don't be a drunk and that factor wil not weigh on your suitability to have custody of your children.
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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.
