Showing posts with label how to lower child support. Show all posts
Showing posts with label how to lower child support. Show all posts

Tuesday, July 18, 2017

Notice of [incorrect] Income Withholding - Marion County Prosecuting Attorney

I am often the recipient of the rants of parents proclaiming their denial of due process, unfair judgments, various other rights violations, and the manifest corruptness of the judicial system. Nearly ubiquitous in this onslaught is the common thread of parents who are impatient agitators. However, I have received a piece of mail that, after an initial chuckle, led me to wonder; is Marion County Prosecuting Attorney Terry Curry actually this stupid.

It came from a rare gem of a parent who patiently endures the litigation process. Subsequent to a petition to modify child support payment obligation of $83.00 per week a hearing was held and Father's obligation was "hereby modified to $0.00 per week, effective April 4, 2017." Additionally, "Arrearage is set at $16,438.44 as of May 3, 2017." Finally, "the noncustodial parent will pay $35.00 per week toward the arrearage."

"Approved and Ordered: Date: June 15, 2017".

For quick review, current support was ordered reduced to ZERO DOLLARS on 15 June 2017 but $35 per week was to be paid toward an arrears.

A copy of the ORDER was sent to Father by the Marion County Prosecuting Attorney. The PA also sent a copy of Notice of Income Withholding dated "June 15, 2017". That should be a familiar date to you by now.

That Notice of Income Withholding is directed to the "SOCIAL SECURITY ADMINISTRATION" who is "ordered to withhold: . . . $83.00 per week, plus . . . $35 per week for the additional past due amount . . ."

Father may contest this order based upon either or both of two reasons provided under 45 C.F.R. 303.100(c)(2) being either an error in the amount of current or past support due or that he is not the named individual to whom the order applies.

May first though about the second reason of not being the person to whom it applies is SO WHAT. This notice would get the same treatment as would a notice delivered to me from Rent-A-Center indicating that my neighbour is past due on her couch rental. I am not going to waste my time with it.

However, in this case the ordered withholding amount is clearly $83 above what was ordered by the court. That may merit some consideration for contesting. Alas though, because the prosecutor - who is such a moronic imbecile who doesn't track with simple mathematical story problems - chose to direct the withholding order to the Social Security Administration, who is not the employer of Father, it is rather moot.

Maybe 45 C.F.R. 303.100(c)(2) should be amended to include a third option: "The idiot prosecutor directed the income withholding order to an entity to which you are not an employee."

In all seriousness though an income withholding order that exceeds the court ordered amount should be contested if the money is withheld. Generally, overpayment of a child support payment obligation is considered a gratuity [Brown v. Brown, 849 N.E.2d 610, 615-16 (Ind. 2006)] unless it is pursuant to an income withholding order which is contested [Drwecki v. Drwecki, 782 N.E.2d 440].

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Thursday, May 11, 2017

Extensive litigation as a factor in reducing Indiana Child Support Payment obligation

An Indianapolis man had his weekly child support obligation reduced to zero dollars on Wednesday 10 May 2017 during combined hearings on child support contempt and modification of support obligation. This case has been extensively litigated. That protracted litigation was a factor in reducing the Father's support obligation.

While it is difficult to intertwine "briefly" into any aspect of this case I will attempt to briefly provide background as to support calculations. Parents divorced in 2009 and pursuant to an agreement in December of that year Father, who is self-employed, was to pay support in the amount of $100 per week. That amount exceed the ICSG worksheet computation. Parents were to share legal custody and parenting time on an equal basis. In Spring 2010 Mother filed for a modification of custody and parenting time.

Pursuant to that motion, in mid 2013 [yes it was litigated for nearly three years], the court imputed Father's income and set his support obligation at $143 weekly. Father appealed both the support and parenting time and custody decisions. The appellate court upheld the parenting time and custody decision but vacated the trial court's support order reasoning that income was wrongfully imputed to Father. Father sought rehearing and transfer of the parenting time and custody decision but was denied on both. The court subsequently reset Father's child support payment obligation to $83 per week.

In Fall 2013 Mother filed a Motion for Rule to Show Cause, alleging that Father was in arrears of his child support obligation, in which she sought jail time. At the onset of the hearing Father moved the Court to appoint pauper legal counsel to represent him in the hearing. The motion was denied, Father was found in contempt, ordered jailed but suspended upon compliance, and a compliance hearing date was set. Father appealed and the Indiana Court of Appeals vacated the contempt finding and remanded to the trial court to conduct an indigence hearing and appoint counsel if Father is found to be indigent.

In Fall 2016 the court rescheduled the contempt hearing and set a hearing to first determine if he was indigent. In the interim two years Father filed suit in a matter related to the case but that suit was ultimately dismissed after numerous hearings. Father appealed and again sought rehearing but it was denied.

During Father's hearing on contempt Father raised an objection. The prosecutor conceded the issue reasoning that if they proceed over his objection "we will be back here again" because he will appeal it and likely win. The hearing was rescheduled and Father was appointed counsel to represent him. Father then filed a Motion to Modify Child Support Payment Obligation. The Court set it to be heard concurrently with the contempt motion.

To be found in contempt of court for non payment of a child support obligation a four prong test is applied; 1] That a lawful order was issued; 2] that the alleged contemnor was aware of the order; 3] that the alleged contemnor had the ability to comply with the order; and 4] that the alleged non compliance was willful.

It was Father's position that his income was insufficient to meet the child support payment obligation and therefor his non-compliance was not willful. Additionally, Father reasoned that if he couldn't meet the obligation then the amount ordered to be paid should be modified lower because it was unreasonable.

Father's basis for claiming that his income had been reduced to a point to where he was unable to pay any support was the extensive and protracted litigation that he had endured over the past seven years. Throughout over 90% of the proceedings Father was self-represented. Father tendered summaries of the time he had spent on researching law, preparing documents, and attending hearings. In some of the years this was nearly 1000 hours.

While some of the litigation was initiated by Father most of that was invited by Mother who on one occasion was found to be in contempt of the court's custody order by changing which school the children would attend after being specifically instructed by the court to not do so.

At one hearing Mother revealed that she had lived with her mother for awhile so she could build up a $20,000 war chest in which to fight against Father in court for full custody of the children. Mother also complained that she had spent that money, wanted a new car, and wanted Father's support obligation doubled so she could buy a current year car and have more money to pay her attorney.

The matters came on for hearing on Wednesday 10 May 2017. Father was represented by pauper counsel for the contempt portion of the hearing.

Another point to make before getting to the details of the hearing is that although the parents were ordered to share in the costs of extra-curricular activities of the children, Father has solely bore these costs and been the parent facilitating the activities.

During the modification portion of the hearing, which the judge chose to hold first, Father proceeded to argue to impute Mother's income. Mother had been a school teacher but chose to quit that job and instead is working year-round for about two-thirds the pay with substantially less benefits. When asked if she quit or was fired she replied that she voluntarily left teaching. When asked why she barked, "I am not going back into teaching." Father posited that Mother was voluntarily underemployed and her income should be imputed to her former earnings level. The judge chose to not impute income to Mother.

At first blush this appears to be a setback for Father but it actually provided valuable support for him. The ICSG state that parents should not be forced to base earnings decisions on maximizing child support obligations.

In a prior hearing on support contempt a different judge told Father that he should quit working for himself because that obviously wasn't producing enough income to enable him to pay the ordered support amount.

During the immediate hearing Father made a two-prong argument for basing his earnings level at what he actually reported to the Internal Revenue Service. First, was that his current trade was the same as it had been during the entire time following divorce and it was during the time from about mid-point of the marriage until that ended. Thus, unlike Mother, he did not voluntarily reduce his income but rather, partially due to market fluctuations he had experienced a reduction in income for some years but that had reversed. The second, and more significant, basis was that the extent to which Mother has been litigating significantly impinges upon his availability to work.

As most of Father's business overhead costs are static there is a steady break even point -- about 700 hours per year -- that once passed produces almost entire profit from his billable time. In recent years his potential earning time has been cut nearly in half by litigation. Much of the time spent was due to Father's initiation of actions, particularly the appeals. But these were at Mother's invitation. The imputed support which was reversed by the Indiana Court of Appeals was copied verbatim from Mother's proposed findings of facts and conclusions of law. The separate lawsuit related to the case could have been preempted had Mother not chosen to acquiesce the offense. The contempt hearing in which Mother requested jail time proceeded at her request even though Father's right to counsel had been unlawfully denied. Mother had also been found in contempt of the custody order. Mother also engaged in other dilatory tactics which were again exposed at the immediate hearing when she acknowledged that she had not provided a financial declaration to Father even though he sent an email to her requesting such. By losing half of his available employment time to litigation Father didn't lose half his income but, because of the static overhead costs, it was about 75%.

The judge found that Father was not voluntarily unemployed but that his underemployment was due to the protracted litigation. The judge then calculated support based solely upon Father's tax returns and reported business income and Mother's current employment income. This resulted in a negative eighteen dollars for Father. The judge said he was deviating from the guidelines and ordered zero dollars retroactive to the date of filing for modification. They then proceeded to the next portion of the hearing.

The contempt portion of the hearing was unexpectedly brief. As the Mother and State were the moving parties it was their obligation to proceed first. The zero dollar support order presents the interesting fallacy of the alleged violation of paying nothing. However, the alleged contempt covered an additional two years preceding the modification. Father's proposition would be that his income was insufficient to meet the child support payment obligation and therefor his non-compliance could not be willful. As support had been set to zero based upon Father's earnings during the alleged contempt period then this was a de facto preemptive finding that Father couldn't meet the obligation. The prosecutor realized this and essentially opened by saying I guess the matter is moot at this point. That ended the contempt portion and closed the hearing.

Two interesting side notes are worth mentioning because of a potential psychological effect they may have on the judge which are related to my most recent posting about creating bias in the mind of the judge through little things -- Preparation, Experts, Trial Procedure and Risking your Parent-Child Relationship in a Custody Hearing. Father initially referred to the prosecutor as "madam prosecutor" and was told by the judge that calling her by name would be fine. Father responded that he did not know her name because no appearance had been entered by the prosecutor. The judge asked if he was sure and he responded that he never received one in the mail so he checked the CCS online to see if he could see from the entry the name of the person who filed it but there was no entry for it. The judge seemed disturbed by this and queried the prosecutor who snipped, "we are understaffed and overworked .. we really don't have the time for that." The second housekeeping or technical issue was when Father was asked what he proposed as a support amount. He responded that he had not completed a Child Support Obligation Worksheet because Mother had never provided a financial declaration to him. The judge responded that the proceeding could be halted and continued to a future date after Father has had time to review the document and make any inquiries as may be necessary. However, both Mother and the prosecutor already had copies. Father stated that he did not want Mother to have to take another vacation day from work to come back nor did he want everyone else to have to return. After a few moments of review by Father the hearing resumed.

In both scenarios Father demonstrated that he was prepared, reasonable, and accommodating. These are the types of traits which create favourable bias in the mind of judicial officers. This is why my primary focus with clients is cognitive behavioural therapy. I have seen strong cases crumble because the parents presenting them behaved like asses in the courtroom. Judges have wide discretion in making their rulings and when it can legally go either way bias will likely play into the decision. Attitude counts in support or custody hearings.

When it comes to modification of the child support payment obligation Indiana Code 31-16-8-2 provides access in two ways. The first, "upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable" is often neglected by attorneys. Alternatively, attorneys who are attentive to it may reject this mode when the argument is that the amount is unreasonable for whatever reason but the circumstances have not changed substantially. However, this burden can be overcome. This is because the ICSG are rules of court. As they are quasi-procedural in nature then they become law because it is a function delegated to the Indiana Supreme Court by the Indiana General Assembly. Thus, any resulting conflict which exists between the ICSG and the statutory law fall in favour of the ICSG.

The ICSG provide myriad factors which judicial officers should consider when making calculations and give particular note about calculating the income of a self-employed parent. The guidelines also stipulate that parents should not be forced to make employment decisions based upon maximizing income. In the immediate case this judge accepted the argument that no income should be imputed to Father because doing so would be forcing Father to work to his maximum earning potential in lieu of pursuing his constitutional right to pursue redress of the errors made in previous court hearings. This included one in which he was unlawfully sentenced to a jail term.

In conclusion, this case accomplished what numerous attorneys have claimed can't be done; getting a modification without meeting the statutory requirements. Father's income has been significantly diminished over the preceding seven years due to protracted litigation. That has not changed. Father's income has instead been imputed to what he would likely have earned if working full-time or, at one point, to an arbitrary point that had no basis in evidence. What did change is the application of judicial discretion. This judge accepted that time spent involved in litigation can legitimately be deducted from employment time without imputing earnings. This judge also followed the ICSG, which trump statutory law, by not requiring Father to work to his full potential.

While this ruling cannot be used as precedent it should be viewed as a valid novel approach to overcoming unjust child support payment obligation orders when income has been imputed. It should also be a reminder that there are self-represented litigants who continually outperform the well trained attorneys. Finally, it reinforces a point which I have advanced to clients, including this one, ad nausea which is that attitude and behaviour matter because they can affect judicial bias.

This is a ruling that will clearly benefit the children because Mother has already demonstrated that she won't contribute financially to the children beyond meeting basic needs while Father has demonstrate that supporting the children beyond basic needs is a priority even after losing 75% of his income.

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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.

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

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Friday, May 16, 2014

Judge Lynn Murray's miscalculation of child support arrears cost a father $7,025

Recent opinions from the Indiana Court of Appeals continue coming on child support issues coincidental to today's public comment session for amending the Indiana Child Support Guidelines. The latest concerns calculating child support arrears which produced a split opinion.

I like Judge Lynn Murray of the Howard Circuit Court because she gets it about children needing both parents, but I think she got it wrong on calculating the child support payment arrears of Michael Robinson. I am in good company on that miscalculation assessment. In her 15 May 2014 dissent in Paternity of D.M.Y. Judge Margret Robb began, “I agree with Robinson that the trial court erred in determining his arrearage, and therefore I respectfully dissent from the majority opinion affirming the trial court order.”

On June 20, 2012, the trial court conducted a hearing on Robinson’s petitions to modify support, determine arrears amount, and petition to show cause. The trial court found that as of November 16, 2010, Robinson was in arrears of his child support payments in the amount of $21,337.00. At the proceedings, the State introduced evidence about its interception on June 30, 2011 of $7,025.84 out of Robinson’s bank account. Robinson contends though that he was never credited for that amount. The State simultaneously introduced a document showing its calculation of Robinson’s arrears as of December 31, 2011. The exhibit indicates the amount of $7,025.84 as sitting in the clerk of court’s undistributed account. Robinson objected to the admission of the exhibit because “[i]t doesn’t accurately reflect they’ve distributed the money.” On September 4, 2013, the trial court issued its order, establishing Robinson’s arrearage at $13,055.00 as of July 29, 2013. Robinson appealed this determination.

Robinson contends that the trial court erred in its determination of a $13,055.00 child support arrearage because the court neglected to take into account the distribution of $7,025.84 which took place on January 3, 2012. Therefore, he maintains that by crediting the distribution, his proper arrears should be $6,029.16.

In reviewing the judgment, this court must determine whether the evidence supports the findings and whether the findings support the judgment. We will reverse a judgment only when it is shown to be clearly erroneous, “i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings.” For findings of fact to be clearly erroneous, the record must lack probative evidence or reasonable inferences from the evidence to support them. Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct. App. 2002). Thus to reverse the panel must find that the judgment wasn't supported by the evidence.

In my previous posting -- Indiana Court of Appeals vacates child support order based upon imputed income -- the appellate panel did just that in stating, “This finding is not supported by the evidence and is clearly erroneous.” The trial court order was then vacated. But the panel in Robinson's case didn't make such a ruling. Instead they found that Robinson did not timely appeal because although the immediate order being timely appealed included the miscalculation so did the court's September 18, 2012 order. In accepting the appeal for argument anyway Judges Riley and Bradford indicated that because “at the time the [$7,025] payment was made, Robinson was entitled to credit for it” that Judge Murray had made a correct calculation of his arrears because the credit should have appeared on the Clerk's record of payments.

But did the payment actually get credited to Robinson by the Clerk? Judge Robb didn't think so and she got out her calculator to confirm Robinson's claim. Here is what Robb wrote;
Going back to the November 16, 2010 order—the last order to establish an actual arrearage prior to this most recent order—Robinson’s arrearage was set at $21,337.00. From that date to the date of the most recent hearing, Robinson owed $20,586.00 in child support. His total support obligation was therefore $41,923.00. Howard County Clerk’s Office records show that $15,000.00 from the attachment of Robinson’s savings account was paid toward his child support, a $7,025.84 check received by the Clerk’s Office on June 30, 2011 was released to Young on January 1, 2012, and payments of $8,625.00 were made by Robinson for a total child support payment of $36,039.84. His arrearage therefore should be $5,738.00. The trial court’s determination that Robinson was $13,055.00 in arrears therefore reflects that the $7,025.84 check was most likely not credited to him by the trial court ($13,055.00 - $5,738.00 = $7,317.00, which equates to the $7,025.84 check and two $146.00 weekly payments). In short, the trial court’s math does not add up and I would reverse the arrearage determination.
As for the timeliness of the appeal, Judge Robb says this;
An actual, current arrearage was not established until the most recent order on September 4, 2013, and therefore I believe Robinson’s appeal of that order has timely raised the issue of whether the trial court included the $7,025.84 payment and properly determined his arrearage. I would remand to the trial court to recalculate Robinson’s arrearage with credit for that payment.

In Robinson's case I clearly think that two of three judges on his appellate panel got it wrong. I will be watching to see if he seeks rehearing [a new appellate panel] or transfer [asking the Supreme Court to hear it] and follow-up if he does.

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

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Wednesday, May 14, 2014

Indiana Court of Appeals vacates child support order based upon imputed income

2015 Indiana Child Support Guidelines
review scheduled for public comment



Analysis of imputed income portion of the Opinion by the
Indiana Court of Appeals in Moore v Moore, 09 May, 2014


The issue on review for the Court was:
“Did the trial court abuse its discretion when it imputed income to Father?”

When Brian Moore found out that the Indiana Court of Appeals had ruled in his favour his first thought was, as he says, “Great. Now I don't have to worry about going to jail over something I couldn't do.” The Court in its decision concluded that the trial court lacked supporting evidence to find that Mr. Moore was underemployed and income should be imputed for child support purposes. Mr. Moore said, “I feel vindicated.” Based on this decision he is enthusiastic about focusing on rebuilding his business and providing for his children rather than supplementing the lifestyle of their other parent.

Brian Moore contended upon appeal that the trial court erred when it imputed income to him based upon the question to him by counsel for Kristy Moore of whether he could earn $50,000 per year. Mr. Moore did not respond that he could not but instead objected as to the question calling for speculation. He then testified that he had never made that much as a contractor. He further testified that he had earnings of around $400-$500 per week the prior year but because of the onslaught of litigation perpetuated by Mother and having acted as his own attorney his business profits were down to about $100 per week and he was borrowing money from his mother to make ends meet.

The GAL report stated: “Mr. Moore, despite having a master’s degree in Finance from the IU School of Business, has failed to keep a steady job.” What the GAL, who was conclusively proven to have committed perjury during the proceedings[fn1], overlooked is what the Court of Appeals noted;
“Father has an undergraduate degree from Butler and a MBA from Indiana University. He has worked as an independent contractor, however, since before the marriage.”

The trial court stated at one point “I have great concern about the fact that Father has not had any stable employment since 2008” which is a period preceding the dissolution of marriage. The Court of Appeals went on to note that Father “stated that he had lacked motivation to work and that the construction market had declined, resulting in no income in 2010 and only a few small remodeling jobs in 2011.” Further, that “at the August 2012 hearing, however, Father testified that he was making between $400 and $500 per week.” It becomes clear from this that Mr. Moore's occupation prior to, during the marriage and since the December 2009 dissolution had been in the building trades.

Despite this clear knowledge about Father's work history and income, with respect to Father’s income, the trial court made the following findings:
36. Father is a “general contractor” who is doing work for Woodridge. Father testified that he works between 20-40 hours per week and that he can control his schedule. Father failed to tender any evidence regarding his pay from Woodridge. Father refused to provide any pay information to the GAL.
37. Father receives money from his Mother each month; he estimated the sum to be around $1,000.00.
38. Father testified that he would be able to earn $50,000.00 per year, but for the preparation of his case in this cause.
39. The Court concludes that Father is purposefully under-employed and is capable of earning at least $961.54 per week. Father’s request that the Court use $100 per week as his income is unreasonable and the Court does not find Father’s testimony credible that he only earns $100 per week.

The Court of Appeals stated “Among other things, the court ordered that . . . Father was under-employed and capable of earing[sic] at least $961.54 per week.” As a basis for vacating the child support order the Court concluded, “Father contends that the trial court erred by imputing income to him for child support purposes in the amount of $50,000 per year. He claims the evidence does not support this amount. We agree.”

In support of the Court's conclusion that the trial court had improperly imputed income to Mr. Moore it relied upon the following statements of the evidence and argument.
“The original settlement agreement set Father’s weekly income at $428 per week. Further, eight months before the final day of the underlying evidentiary hearing, Father testified that he was earning between $400 and $500 per week.”
“The trial court determined that Father was capable of earning $50,000 per year. This finding is not supported by the evidence and is clearly erroneous. When asked by Mother’s counsel if he was capable of earning $50,000 a year, Father testified that he had never made that much in his current field, which he had been in throughout the marriage and thereafter. At the time of dissolution, the parties agreed that Father was earning about $22,200 per year. Nothing in the record indicates that Father’s income potential improved, let alone more than doubled, since the dissolution.”
“On remand, the trial court is directed to reconsider Father’s weekly income and child support obligation. This may be done by returning to the original income figure of $428 per week based upon Father’s failure to establish different income figures, or the court may find that an increase is warranted based upon the regular and continuing support Father receives from his mother. Once Father’s gross weekly income is determined, the trial court shall recalculate Father’s support obligation accordingly.”[fn2]

In this case the trial court should reassess the wrongly imputed income figure that resulted in an erroneous support order of $139 per week to reflect that Mother should be paying Father[fn3]. However it has come at a significant cost. Mr. Moore has sold business equipment, was forced to terminate his business space lease and cut back on his working hours to pay for the appeal costs[fn4] and write the appeal himself. Additionally, he was found in contempt of court and sentenced to a jail term for failure to pay the support based upon imputed income and has appealed that ruling[fn5]. The contempt has been stayed pending results of the appeal which should conclude that the sentence be vacated based upon the underlying support award lacking an evidentiary basis.

When Mr. Moore's subsequent appeal on contempt for failure to pay court ordered child support is issued I will bring those results to you.

notes
1] Del Anderson, the GAL from Child Advocates, Inc., testified that the Pendleton Elementary School had to go on “lock-down” because of a threat made by Mr. Moore. However, the school principal, school system superintendent, and the Pendleton Chief of Police all testified that there had been no threat nor any “lock-down” as alleged by Mr. Anderson who fabricated the story.
2] [T]he regular support Father received from his mother could be properly imputed as income. See Glass v. Oeder, 716 N.E.2d at 417 (“Glass’ rent-free living arrangement provides him with a lower living cost that presumably frees up money for the support of his children and was a proper basis for the trial court to impute income”).
3] Mr Moore has completed a CSOW using income for Mother as she testified and his own at $428 per week. Based upon the current parenting time arrangement she would pay to him $5 per week.
4] In addition to the $250 filing fee and nearly $2500 for the transcript Mr Moore also had to pay my professional fees for coaching him and keeping him focused during the time he wrote his appeal.
5] That cause number is 49A04-1310-DR-499 which has been fully briefed.

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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.

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

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