On 13 May 2014 G. Michael Witte, Attorney No. 1949-15 filed a Verified Petition to Enjoin the Unauthorized Practice of Law against yours truly. In this series of postings I will present to you some information about Mr. Witte, why Indiana Supreme Court Justice Steven David denied my motion to reinstate a felony charge against myself, what Indiana judge recently said I am smarter than most attorneys, and why attorney Vanessa Lopez Aguilera complained. More significantly though I will demonstrate how Mr. Witte and his ilk are attempting to harm children and deprive parents of opportunities to amicably and efficiently resolve their child custody disputes consistent with the policies of the State of Indiana.
To begin the second segment in this series is the complete text of the Indiana rule regarding the unauthorized practice of law. Rule 24 of the Indiana Rules of Court: Rules for Admission to the Bar and the Discipline of Attorneys provides the following; * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Rules Governing the Unauthorized Practice of Law
Original actions, under I.C. 33-24-1-2[fn1], to restrain or enjoin the unauthorized practice of law in this state may be brought in this court by the attorney general, the Indiana Supreme Court Disciplinary Commission, the Indiana State Bar Association or any duly authorized committee thereof, without leave of court, and by any duly organized local bar association by leave of court. The action against any person, firm, association or corporation, shall be brought by verified petition, in the name of the state of Indiana, on the relation of the authorized person or association or committee, and shall charge specifically the acts constituting the unauthorized practice. Within time allowed, a respondent may file a verified return showing any reason in law or fact why an injunction should not issue. No other pleading in behalf of a respondent will be entertained. All allegations of fact in the petition and return shall be specific and not by way of ultimate fact or conclusion. The return shall specifically deny or admit each allegation of fact in the petition, and it may allege new facts in mitigation or avoidance of the causes alleged in the petition.
The parties shall file an original and five [5] copies of all pleadings, including exhibits, plus an additional copy for each adverse party. If any exhibit shall be a matter of public record one [1] certified copy thereof shall be filed with the original petition or return. No pleading or exhibit thereto will be considered which has words or figures on both sides of the same sheet of paper.
No restraining order will issue without notice except upon the filing of an undertaking with conditions and surety to the approval of the court. Notice of the filing of the petition will be given and served upon any respondent as may be directed by the court, such notice to be accompanied by a copy of the petition. The clerk will mail a copy of any return to the relator.
The verified petition and return shall constitute the evidence upon which the issues are decided, unless the court shall deem it necessary to, and shall appoint, a commissioner, in which event such commissioner, who shall have full authority to subpoena witnesses and records, shall hear the evidence and report his findings of fact to the court.
A copy of any pertinent agreement, made by any recognized bar association concerning the unauthorized practice of law, may be attached to and made a part of any pleading and unless denied under oath shall be deemed to be a true copy without further proof of the execution thereof.
The costs and expenses incurred by such hearing shall be borne by the losing party. Briefs need not conform to requirements of Appellate Rules 43-48. Arguments will not be heard as of right. [emphasis added]
Interesting that the Indiana Bar Association may file a complaint on behalf of the State of Indiana against a person whom the bar feels may jeopardize their income by reducing harm against children. This would be like giving an auto manufacturer group the power to bring actions to enjoin the use of “unauthorized use of vehicles”. Can you imagine who or what would be targeted? Older vehicles, motorcycles, bicycles, buses, taxis, passenger trains, and anyone else that would provide modes of transportation that reduced or eliminated the need for every individual to purchase a recently manufactured car. This Petition amounts to the actions of a cartel seeking to protect its financial interest by targeting anyone who may assist others in extricating themselves from financially supporting this cartel.
If you are like me and any other person of common intelligence you are noticing that there is no description in the rule of what constitutes the unauthorized practice of law. Thus, it is entirely subjective at the whim of the person making the allegation.
Due process at a minimum requires notice. Notice to enjoin the unauthorized practice of law should first describe the practice of law but these rules do not. We can look to contempt of court as analogous to injunction and prohibition for an act contrary to general knowledge. To be found in indirect contempt of court one must have been provided an unambiguous order notifying him of what he shall do or is restrained from doing, the order must be lawful, and he must have willfully violated the order[fn2].
This is a fundamental element of American jurisprudence - being informed of the expectations to which one is to comply. In the case of the unauthorized practice of law in Indiana neither the Indiana General Assembly nor the Indiana Supreme Court has first chosen to provide residents of the state subject to the Court's jurisdiction a definition of what acts comprise that.
This is intentional though so that the cartel can use the UPL allegation as a means to attempt to intimidate those who would threaten their financial viability. At the helm is the morally defunct G. Michael Witte who would rather see children suffer through years of parental conflict than an attorney miss a billable hour.
Upcoming segments in this series will include
III - A Preliminary Statement
IV - The Factual Allegations: ACLU Ken Falk
V - The Factual Allegations: Jennifer Bonesteel
VI - The Factual Allegations: Angela Sims
VII - The Factual Allegations: Advertising
VIII - The Factual Allegations: Suppositions
IX - Interview with the Complainant: Attorney Vanessa Lopez Aguilera
X - Who has Recommended My Services and what I Recommend
XI - The Charges
XII - The Response Filed
If you would like to contribute any information about this matter or participate in the Response then please contact me.
notes
1] IC 33-24-1-2 Jurisdiction
Sec. 2. (a) The supreme court has jurisdiction in appeals coextensive with the state and has jurisdiction as provided by the Constitution of the State of Indiana.
(b) The supreme court has exclusive jurisdiction to:
(1) admit attorneys to practice law in all courts of the state; and
(2) issue restraining orders and injunctions in all cases involving the unauthorized practice of the law;
under rules and regulations as the supreme court may prescribe.
2] The willful disobedience of any lawfully entered court order of which the offender had notice is indirect contempt. Henderson v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct. App. 2010); see also Ind. Code § 34-37-3-1. see also Deel v. Deel, 909 N.E.2d 1028, 1032 (Ind. Ct. App. 2009). “The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated.” Id. (quotation omitted). “A party may not be held in contempt for failing to comply with an ambiguous or indefinite order . . . [o]therwise, a party could be held in contempt for obeying an ambiguous order in good faith.” Id. (quotations omitted).
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. 
Wednesday, May 21, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part II The Court Rules
Monday, May 19, 2014
Engaging in the Unauthorized Practice of Law in Indiana - Part I
On 13 May 2014 G. Michael Witte, Attorney No. 1949-15 filed a Verified Petition to Enjoin the Unauthorized Practice of Law against yours truly. In this series of postings I will present to you some information about Mr. Witte, why Indiana Supreme Court Justice Steven David denied my motion to reinstate a felony charge against myself, what Indiana judge recently said I am smarter than most attorneys, and why attorney Vanessa Lopez Aguilera complained. More significantly though I will demonstrate how Mr. Witte and his ilk are attempting to harm children and deprive parents of opportunities to amicable and efficiently resolve their child custody disputes consistent with the policies of the State of Indiana.
Although not specifically charged with doing so I provided legal advice to my son. Therin will be attending Indiana University in Bloomington, Indiana beginning the Fall semester of 2014. His objective is to become an entertainment contract attorney. I recently spoke to him about his upcoming college experience, as we often do, and his high school graduation. Particularly I broached the matter of parties and alcohol consumption. I specifically advised him to not consume alcohol until he is age 21 and more generally to not be in attendance at parties where alcohol is being openly served to or consumed by minors as this could cause legal problems for him. A resilient factor after an immediate legal proceedings that may be disposed of in his favour is that admittance to the practice of law in Indiana is subject to a “moral” component. That investigation is not limited solely to convictions but may include circumstances surrounding a case disposed of in his favour. I know, you've got to be thinking if alcohol offenses were a bar to being a lawyer . . .
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Yes I “provided legal advice” to my son. In his complaint against me Mr. Witte alleges that I “provided legal advice and services to Indiana residents” but, ha ha, my son won't be an Indiana resident until July 2014!
So hold on. It is going to be a fun ride filled with documents, audio recordings and plenty of refuted unfounded allegations by Mr. Witte.
Upcoming segments in this series will include
II - The Court Rules
III - A Preliminary Statement
IV - The Factual Allegations: ACLU Ken Falk
V - The Factual Allegations: Jennifer Bonesteel
VI - The Factual Allegations: Angela Sims
VII - The Factual Allegations: Advertising
VIII - The Factual Allegations: Suppositions
IX - Interview with the Complainant: Attorney Vanessa Lopez Aguilera
X - Who has Recommended My Services and what I Recommend
XI - The Charges
XII - The Response Filed
If you would like to contribute any information about this matter or participate in the Response then please contact me.
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.
Friday, March 28, 2014
Indiana Appellate Attorney [Russell B. Cate] Incompetence can Ruin your Child Custody Case
28 March 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
I received an email yesterday from a mother who filed a pro se appeal to the Indiana Court of Appeals about a week earlier. She was concerned that the father's attorney had filed a motion to dismiss her appeal. I believe her concerns are overstated as the motion filed by Russell B. Cate of Campbell Kyle Profitt LLP is without merit.
Coincidentally I posted “Why a Competent Attorney is a Must or How to Stay in Prison” just four days ago where I detailed the absurd failings of an attorney filing an appeal. Russell B. Cate seems to be on his way to upstaging the wholly incompetent Thomas F. Little of Power, Little, Little, & Little in Frankfort, Indiana. The crux of Cate's support for his motion is that the petitioner failed to file an Appearance with the Indiana Court of Appeals pursuant to Rule 3.1 of the Indiana Rules of Trial Procedure. Well hold on to them there horses Cowboy Cate. I have a few points to make about this motion. To begin with if you are going to play Black Jack don't bust out the rules for Texas Hold 'em.
As prudent members of a society I feel that we are all obligated to look out for each other, alert those around us to hazards, and do what we can to protect our fellow man from harm. So, after I finished laughing following my perusal of the motion I came up with these additional thoughts which I freely share with you.
Respondent [Cate] has failed to understand or is attempting to confuse and frustrate the court in applying the Indiana Rules of Trial Procedure to a matter initiated pursuant to the rules of and is properly before the Indiana Court of Appeals.
Indiana Appellate Rule 16 provides that “[t]he filing of a Notice of Appeal pursuant to Rule 9 or Notice of Expedited Appeal pursuant to Rule 14.1 satisfies the requirement to file an appearance. Respondent in his Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court clearly demonstrates no injury from his unfounded belief that Petitioner was required to file an appearance in that he includes Petitioner's pro se service address in that document.
Regardless of Respondent's contention that Petitioner in this cause was required to file an Appearance pursuant to the Indiana Rules of Trial Procedure contemporaneous with the Notice of Appeal filed with the Indiana Court of Appeals dismissal would nonetheless be unwarranted.
Dismissing an appeal may be warranted where an appellant fails to substantially comply with the appellate rules. Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004). However, the court prefers to resolve cases on the merits. Id. Mother did comply with the appellate rules and has not been ordered by the appellate court to supplement her filing with an Appearance. Such an order is generally presumed to be a prerequisite to entertaining a motion for dismissal.
“If an appellant inexcusably fails to comply with an appellate court order, then more stringent measures, including dismissal of the appeal, would be available as the needs of justice might dictate.” Johnson v. State, 756 N.E.2d 965, 967 (Ind. 2001).
Again, Respondent's fallacious argument aside, the courts have been reticent to award attorney fees in appellate cases except in the most egregious of circumstances. “A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious.” Manous v. Manousogianakis, 824 N.E.2d 756, 767-68 (Ind. Ct. App. 2005).
Respondent's motion is replete with inaccuracies, is meritless, and was brought in bad faith for the purpose of harassment, vexatiousness, or delay. Respondent's motion should be denied in its entirety.
Respondent's Objection and Motion to Strike to Petitioner's Notice of Appeal to Trial Court should be dismissed and the Respondent be admonished for his vexatious filing. Notice as with the recent posting regarding Mr. Thomas F. Little I refer to the actions of the attorney as the party – the Respondent – because the lawyer has no skin in the game. When you employ an attorney to represent you then you have entrusted that attorney with the decision making authority that you relinquished.
This is the hazard of hiring attorneys from firms like Campbell Kyle Profitt LLP or Power, Little, Little, & Little. If you want to be well represented in a child custody hearing or on appeal them it may be wise of you to facilitate the knowledge of someone who reads every child custody decision by the higher courts and knows who are the competent and incompetent attorneys in Indiana. If you would like for me to teach to you the procedures for appeal, how to do research and how to make cogent argument as well as follow the rules then contact my scheduler.
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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, October 15, 2013
A Failing Attorney-Client Relationship in Child Custody Proceedings
14 October 2013
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Like any intimate relationship the attorney-client relationship must meet certain foundational requirements – trust, mutual respect, like outcome based goal, and acknowledgment of the relationship limits. Distress in the attorney-client relationship is often a result of the breakdown of one or more of those foundational principles.
Parents come to me with the complaint that their attorney has completely botched their case. I first ask who appointed your attorney to represent you. Rarely is the answer something different than the parent having selected the attorney by himself or herself. While most can acknowledge that they are accountable for that decision they still feel trapped in that the cost to get a new attorney fully familiarized with the case appears to be cost prohibitive. This is generally accompanied by the declaration that the attorney was recommended.
From the attorney perspective again comes frustration. When attorneys seek my assistance with a case it is usually a high conflict parent who “just doesn't get it.” While attorneys can often be quite effective in eliciting the necessary information and building a case strategy, the very pedagogy of law school for the most part fails to equip them with the tool to handle the emotionally charged client determined to win at all costs. These parents are the saboteurs of their own case. It takes much more than training in law to be able to effectively advocate for these parents. It is not that they are inherently bad people but they have lost focus and need to be reeled in. I have seen attorneys dismiss these parents even when the money kept flowing in from the myriad of legal combative maneuvers. Sometimes the frustration just isn't worth it. Nor is upsetting a judge.
Where ever you are in the case proceedings, if you do not have a supportive attorney-client relationship then you are unlikely going to be unable to obtain a parenting time order that is best for the children. Talents and resources are also likely to wasted as the case drags on for much longer than most people anticipate. If you are in a failing attorney-client relationship then please visit my website and contact my scheduler to make arrangements for me to assist with your next attorney-client session which should be to re-evaluate that relationship. There is no charge for this initial attorney consultations.
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, October 1, 2013
Be Careful How You Step
30 September 2013
Your storyteller here often prides himself on what appears to be an uncanny knack to not only consciously observe his surroundings but to be subconsciously immersed by the sensory input and the mental processing that whisk him past all hazards. So it is with the most humble of moods that I engage you in this tale of doggie defecation mayhem.
My regular work in the building trades as a general contractor for home building and remodeling took a sudden downturn in 2008. From then I pursued the white collar trade of counseling my fellow parents and lawyers. I am now fully disposed to improving their child custody cases and lives in general. But I still help a friend with the building trades when asked. So here is the story of my latest misadventure as I recited it to a friend who also works in the building trades.
I was doing some electrical work in a house today where a dog also resided. It didn't bother me other than the non-stop barking. I was able to complete the work, get on my way home and settle in for a bite to eat. And some rest As the pleasant aroma of my culinary delights hung in the steamy air of the kitchen no such delights greeted me upon my returned to the living room. In there – where I had shed my outer wear and keep the bicycles – I was greeted by the distinct odor of, shall I say, doggie keester cakes. I grabbed a shoe and took a look. Sure enough the underside of my right shoe appeared as though I had trod through a hog sty. Out the door went the shoes.
Upon completing my meal in my bedroom, which was more appealing to the olfactory sense, I headed out to run some errands. Although I had left the front and back doors open, as I sat in the living room slipping my feet into my cycling shoes, I was still engulfed in the odor of doggie keester cakes. I pulled the bike back down from the ceiling and was on my way.
Upon completion of those chores I then cleaned the shoe I had worn while installing the electrical lines this morning. With a bucket of water and a wire brush I cleaned off the underside of the assaulted shoe as I sat on the deck. Although I had kept the door closed, when I went back into the house there it was again – doggie keester cakes odor. I repeat the airing out process by leaving the doors open again. This time for sure, there was a steady breeze that brought air into the living room and exited onto the deck which should do it.
While I was picking up a few items from the living room floor, my face on the same plane as my bicycle pedals, I discovered that the pedals were encrusted with some of the offending doggie keester cakes. At this point I am getting pissed-off. You know that doesn't happen often. So out the door goes the bicycle and the explanation of why the offending scent was ever present in my home.
Notice that I said “pedals” – the plural. Yep, it was on both shoes. So, I went back out to the deck and scrubbed the underside of the left shoe this time. The it was onto cleaning the pedals. There was doggie keester cakes mashed into the springs and every other part of the pedals. That was more challenging to clean but I got it done. I even used chemicals.
Back to mental stimulation. I was in the bedroom studying for an hour or so and then, of course with me, it was time to eat again. As soon as I step into the hall I smell that damn doggie keester cakes odor hanging in the air like burnt toast. That's when the power of the subconscious kicks in. There on the floor are my cycling shoes. Recall that I said I put those on to run errands and I used the bike which I had just scoured the doggie keester cakes encrusted pedals. Without conscious thought I pick them up and walk out to the deck. Sure enough there is doggie keester cakes packed into the cleats of the shoes.
So, I had stepped into doggie keester cakes while doing that electrical work. But it wasn't like walking through a yard. I trod through it repeatedly enough to get it all over both shoes. Then I rode home getting it into the pedals of my bicycle. While riding again, this time wearing my cycling cleats, it gets packed into them. I cleaned one shoe, then the other, then the pedals and finally, later, the cycling shoes. No wonder my house had doggie keester cakes odor in it all damn afternoon.
It's at this point that my buddy, while trying to overcome his laughter, queries as to who else was I doing electrical work for today. I responded that he better watch his step when he gets home and get out the carpet cleaner because I was talking about working at his house. He boisterous chuckles quickly faded.
I don't provide this anecdote to you today for the purpose of comic relief but instead to demonstrate the consequences of failing to abide by a valuable maxim – always consider the cause and collateral results. This is especially true in parenting decisions and child custody litigation.
One of my best examples is the father who comes to me to assist he and his attorney with an upcoming custody hearing. They had amassed the evidence and were ready to demonstrate to the court with their “proof” that the mother had abused and neglected the child. He was convinced that he would leave court that day with custody of his child. I suggested that he could leave court that day on his way to jail. Here is why.
Indiana has a duty to report statute[fn1] that makes it an offense if you suspect child abuse or neglect and don't report it to appropriate authorities. Their strategy was to begin with the testimony of Father, the moving party, as to his awareness of Mother's abuse and neglect of the child for over a year. Although he did much to ameliorate the harmful effects he still knew and didn't report it. Instead, I suggested that he testify as to the actions that he took to ameliorate the negative effects without revealing that it was done in direct response to knowing of the abuse and neglect. Then they could question Mother in a similar manner to reveal her offenses. If she denied everything then they could present their “proof” and likely be assured that Mother's abuse and neglect of the child as well as the lying about it in her testimony would obscure his failure to report.
In the doggie keester cakes debacle I shamefully missed this. I should have checked both shoes. I should have then been able to realize that if it was smeared across the bottom of both shoes then it was going to be on both pedals of the bike on which I rode home. But I didn't. The consequence was that it ended up in the cleats of my cycling shoes.
Effective management of a child custody case requires vigilance and forethought in all parenting actions. It is much the way chess is played – looking for a way to advance your position while ensuring that you are not opening yourself to attack. The further one can anticipate upcoming moves the more successful a player he or she will be.
Proper analysis is a must. When an event occurs think about what precipitated that event, what course of actions followed the event, and what are the possible outcomes from inaction or the various choice of actions and their potential results.
For additionally perspective on how narrow focus – tunnel vision – can taint rational thinking see what I have previously written about unintended consequences HERE. http://bcchildadvocates.blogspot.com/2011/08/unintended-consequences-success.html
Notes
1] IC 31-33-5-1 - Duty to make report. “In addition to any other duty to report arising under this article, an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.”
While many attorneys and providers are aware of the requirement few are aware of the criminal penalty. IC 31-33-22-1 - Failure to make report. “(a) A person who knowingly fails to make a report required by IC 31-33-5-1 commits a Class B misdemeanor.” That's up to 60 days in jail.
If your clients' case involves an upcoming custody hearing and you want to be best prepared then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
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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