26 February 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Once in awhile a candidate comes along who appears so outside the norm that you have to ask yourself, is this the approach that is needed for more effective government? Afterall, the majority of Americans agree that government, as is the current norm, is not being responsive to the common people. So when I came across Bill Levin who is a candidate for the Indiana House of Representatives in District 96 I wondered Is this the approach that is needed for more effective government? So I interviewed Bill about his platform, ideology and the impact those would have upon children.
I first wanted to know what lead to Bill's decision to join the race to be a representative in the Indiana House. For him it was lack of effective representation either the Republicans or Democrats. That both put forth legislation intended to satisfy their respective parties but not respect Hoosiers. His platform has three major planks being gun safety, equal rights for all people, and marijuana legalization.
As he explains because we are an agricultural state Hoosiers should have access to the benefits of cannabis. The marijuana plant is useful as a building material, has health benefits including its use as an essential oil, and is a stress reliever. As marijuana use has come into play in numerous child custody battles in which I am involved I seek to find the impact on the child. Show me the harm or benefit. It was interesting that Bill mentioned stress relief and then connected that to abuse of children. His claim that “people who use marijuana don't [physically] abuse their children as much as those who are alcohol and prescription pain killer users” is consistent with my anecdotal evidence. People who are less stressed are less likely to abuse their children.
The opposing point of view claims that marijuana is harmful to children because its use is associated with crime, gangs and is a gateway to more severe forms of drug abuse. It has generally been my observation that the most prolific gateway drug is alcohol. Levin noted that this report by the Obama administration in 2010 dispelled the gateway myth.
FlexForm and Elkhart County based automotive parts manufacturer must import the cannabis that it uses because Indiana law forbids Hoosiers from growing the plants for use here. Thus Indiana lawmakers have ensured that money is flowing out of the state that should be supporting agricultural operations here as Levin would have it.
A bill authored by Senator Richard Young that would allow Indiana farmers to grow industrial hemp crops was heard in the Senate Committee on Agriculture and Natural Resources which voted 7-0 in favor of the bill on Friday. Levin says that it will easily pass through the general assembly and be presented to the Governor Pence who he is confident will sign it into law. However when it comes to legalizing marijuana Governor Pence has taken a strong stance in opposition saying, “I don’t support the legalization of marijuana, and that’s been my position for a long time and will continue to be.” Former Republican state legislator Tom Knollman who had to resign his position because of progressive MS has objected to Pence's stance saying, “The art of being a good public official is being able to listen to both sides of an issue! I served as a Republican as a representative and am very proud of that. When the Governor refuses to look at both sides he loses my vote. I am sure my name is mud in his administration but I tried to always remember I am my brothers keeper!"
HJR3 seemed to capture most of the headlines and attention this year. So I asked Bill where he stands on adding the current statutory scheme defining marriage into the Indiana Constitution. Quite simply his response was, “I think gays should have the same right.” He expanded upon that by explaining that marriage is a contract that is often temporary in nature, If people of the same gender wish to subject themselves to the same contractual situation as those of opposite genders then they should be allowed. If two people regardless of gender want to establish that contractual arrangement then he wishes for them, “all the joy and love in the world.”
I asked about his thoughts on the Second Sentence which would have banned the State from recognizing not marital relationships similar to marriage. After a moment pondering his initial response had me laughing. Upon further explanation it is matters like Second Sentence that reflect what he had earlier described about both parties putting forth legislation intended to satisfy their respective parties but not respect all Hoosiers. He also acknowledged that while supporters of marriage claim that marriage provides stable relationships in which to rear children that they can be fleeting.
The last position I touched upon was gun education and safety. Levin wants it taught in every grade school. He noted that countries and jurisdictions where gun ownership is mandatory have lower crime rates and less gun assaults than the United States overall. One reason I suspect is because gun education is also part of the compulsory gun ownership process. Bill believes that teaching respect for guns and realistically demonstrating their impact can reduce their use in ways that mimic pop culture where the true impact is sanitized. Gun debates are always a hot topic but I think he takes a pragmatic approach to the issue. It's neither in support of gun rights or restrictions on people having guns but acknowledges that guns are part of our culture. They are a way of life. Educating children about guns may be a way to save their lives. It is this pragmatic approach that embodies his philosophy on government.
When it comes to the primary role of government Bill Levin feels it should be to provide “functional gears that make the cities or state work properly.” He wants to do his part in realizing that philosophical goal of government by putting forth bills that are "realistic, that are not party favoured, and are leaning toward benefiting Hoosiers."
People who want to do their part to help get Bill Levin elected to the Indiana General Assembly can do so by checking his Facebook page daily. As with any campaign he also needs supporters to donate to his fund-raising efforts which will help buy advertising. Supporters can go to his Fundrazr page to make a donation on-line. Finally, if you have a group of friends or associates that you feel would support the Bill Levin for House platform then consider hosting a meet 'n' greet with Bill at your home or business. Contact Bill through his Facebook page for details.
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, February 26, 2014
In His Own Words - Bill Levin: 2014 Candidate for the Indiana House of Representatives
Tuesday, February 4, 2014
Increasing School Choice and Charter School Accommodation - 2014 Indiana Senate Bill 0205
04 February 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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A bill that would allow non-utilized public buildings to be leased to charter schools for a nominal fee is making its way through the Indiana Senate. Senators Banks, Kruse, and Yoder have introduced the bill that will make buildings available to charter schools that would otherwise remain unoccupied and result in a financial burden on the government agency owner through maintenance and repairs.
Here is the Synopsis of the bill:
Charter schools. Requires an authorizer to submit an annual
report of certain information to the state board and the public. Prohibits
an authorizer from requiring a charter school authorized by the
authorizer to enter into a commercial contract with the authorizer.
Limits the length of a charter agreement to not more than seven years.
Requires municipal corporations and the Indiana department of
administration to notify the department of education of vacant or
unused buildings that are suitable for classroom use so that the
buildings are included in an annual list of buildings available for sale
or lease by charter schools. Requires the state board to establish a
process to be used if more than one charter school applies to purchase
or lease the same vacant or unused public building.
For the most part this bill provides an expansion from only school corporations to include all municipal corporations as those entities who may enter into contracts to lease a building suitable for classroom use. The bill also provides a conflict of interest section and the following section that addresses competing requests for building usage;
The state board shall establish a process to use if more than one (1) charter school sends a letter of intent under subsection (i) to purchase or lease the same vacant or unused building. The state board shall assign weighted values to each charter school's:
(1) academic quality;
(2) financial health;
(3) community impact; and
(4) program design;
to evaluate the competing charter schools. If two (2) or more competing charter schools each receive the same total score on the evaluation, the state board shall conduct a random drawing at a public meeting to determine which charter school may purchase or lease the vacant or unused building.
This proposition, if adopted into law, will give to more parents and students the opportunity to receive the education that meets the needs of the children. Not only will greater choice be achieved but it will be done so at a lower cost. It will also likely result in more 25mph school zones but you can just join me in riding a bicycle around and not be annoyed by having to reduce driving speed.
This bill was read for the second time in the Senate as amended.
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, January 31, 2014
Drug Testing for TANF Benefits and Nutritional Requirements for SNAP Benefits - 2014 Indiana House Bill 1351
31 January 2014
The bill is sponsored by Representative Jud McMillin who is joined by co-sponsors Koch, Kubacki, Messmer, Culver, Neese, Harman, Frye R, Ober, Huston, Smaltz, Rhoads, DeVon, and Mahan.
The bill does provide an exception for those who test positive for a controlled substance and are participating in a drug treatment program. This carrot-and-stick approach does make it more palatable although I feel a means-based testing approach is more appropriate. That is implicit in the drug testing portion of this bill. If you are wealthy enough to be able to afford recreational drugs then you don't need public assistance. If you are wealthy enough to be able to afford not nutritive snacks, to buy food necessary to carry the extra weight on your body from obesity, or to employ others to prepare your meals for you then you clearly have no need for public assistance. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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A bill making it's way through the Indiana House of Representatives would disqualify those testing positive for illicit drug use from receiving TANF benefits. It also establishes nutritional content minimums for “foods” that may be purchased under SNAP – Supplemental Nutritional Assistance Program
The synopsis of this bill is;
Welfare matters; drug testing. Requires the division of family resources to establish a statewide program for the Supplemental Nutrition Assistance Program (SNAP) that allows SNAP benefits to be used only for food and beverages that have sufficient nutritional value, as determined by the division of family resources. Requires the office of the secretary of family and social services (office) to administer a drug testing program (program) for individuals who are receiving Temporary Assistance for Needy Families (TANF) assistance or receiving TANF assistance on behalf of a child. Establishes requirements for the program and ineligibility penalties. Prohibits an individual who is ineligible to receive TANF assistance under the program from receiving assistance on behalf of a child and provides for an exception. Requires the office to collect data to assess and avoid discrimination in the program. Requires the office to provide information to the Indiana housing and community development authority and any division of the office that implements the federal Supplemental Nutrition Assistance Program concerning an individual who tests positive for controlled substances. Requires the department of workforce development to submit a report to the legislative council and the unemployment insurance oversight committee concerning certain unemployment topics.
The list of controlled substances that would disqualify an applicant or beneficiary of TANF is found at Ind. Code § 35-48-1-9 which includes Peyote, Marijuana, Clonitazene, and hundreds of others.
The general problem that I have with this bill is it takes a patchwork approach to public assistance qualifications and implicitly invokes a morality clause – drug use or abuse. However, the measure of moral deprecation through drug use fails to adequately draw a reasonable correlation when the demarcation is legality. A person who treats his or her body as though it were an open sewer and dumps in garbage made to appear as food – artificial colours or flavours, HFCS, hydrogenated oils -- and then encounters the resulting effects such as obesity and diabetes is giving the status of “victim” while the social pot smoker is branded a miscreant devoid of good character and unworthy of societal aide. To the contrary it is the immoral individual lacking any respect for his or her own body and subsequently often that of the person's dependent children who should be branded the moral transgressor – child abuser if the child is obese.
This leads to the second portion of this bill.
This bill provides the following language establishing nutritional requirements for SNAP.
(a) The division shall establish a statewide program for SNAP that allows SNAP benefits to be used only for food, food products, and beverages that have sufficient nutritional value, as determined by the division.
(b) In determining sufficient nutritional value under subsection (a), the division shall consider the food limitations set forth in the women, infants, and children nutrition program (WIC) (under IC 16-35-1.5).
I wrote about the matter of nutrition in my 06 March 2012 posting, Fighting Hunger – A Sensible Cure. In that I specifically mentioned that SNAP benefits should be aligned to the WIC program. “Indiana's SNAP program should receive a major overhaul as it doesn't provide nutrients like WIC does.” I am pleased that these representative have adopted this common sense approach.
While I applaud the sponsors of this bill for their effort to improve the health of recipients I believe that the drug testing portion of the bill is arbitrary and falls woefully short of the appropriate means testing – the first and most obvious being body fat percentage.
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.
Thursday, January 30, 2014
Objective truths about HJR3 the Indiana Marriage Amendment: Breaking down proponent's scare tactics
30 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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I hold no position on whether marriage should be defined as between a man and a woman. It is already in the Indiana Code so for me it is not a germane issue. But as it has been a hotly contested matter that is diverting attention away from legitimate child well-being issues I would like to see it disposed. As I engage in vigorous conversation with and attend informational events held by both proponents and opponents I am struck by the misconceptions, misstatements and blatant lies about HJR3 which come from both sides but moreso from what I see distributed by proponents. Particularly disturbing is the general characterizations that are being flipped on their heads with this issue.
I am not going to cite to authorities is this article. I have numerous years of experience in the field of child custody, marriage – or rather divorce – and advising state policy makers on matters pertaining to these.
The hallmark of conservatism is the protection of liberty. So I found it stunning when I received an email yesterday from a proponent of HJR3 attacking Indiana House members who voted to strip HJR3 of it's broad restrictive language. It was not the misunderstanding about conservatism that bothered me but, rather, it was the blatant lies.
American Family Association of Indiana
To me truth matters. I hold truth in such high regard that it is equaled by few other people. When my son was age 2 I told him that the Santa Claus stories perpetuated by our society are lies. I explained truth to him and the importance of being truthful. He understood. There is no one that I have a more trusting relationship than with my son. As someone who goes into courts across this state and provides expert opinion and testimony of observations the veracity of my statements is critical to the best interest of children. So when I hear these blatant lies it raises my ire. Especially when it is directed in a way to cause harm to children. This is why I am compelled to respond to the email from Micah Clark of the American Family Association. This is disturbing to me because I honestly believe that the AFA has made positive contributions towards childhood well-being following divorce.
The AFA states in regards to the House members who voted to amend HJR3, “Some even think that they are 'conservative,' but they are not.” I will address that opinion later after confronting the lies.
52 members voted for same-sex marriage and for keeping the government involved in this issue
NOWHERE in HJR3 as amended and passed is there any repeal of Ind. Code § 31-11-1-1 which prohibits same-sex marriage. The great contradiction here is that while opponents of HJR3 are trying to keep government out of the marriage business and let people decide the extent of their personal relationships not the government.
Every one [of the 52 House members] has tried to take away your right to vote on this issue and now has left the future of marriage in the hands of politicians and homosexual activists.
This is an absurd misstatement of the Indiana Constitution that goes against the basic tenants of our constitutional republic. There is no right of the people to vote on this issue or any other. Our law making process is constructed under a representative form that provides for voters to select other citizens to represent them as a law making body. In Indiana we have two house; a House of Representatives comprised of 100 members, and a Senate comprised of 50 members. These are the people who have a “right” to decide this issue as particularly described in Article 16 of the Indiana Constitution. Now I will move onto more about rights and the people deciding.
52 members of the Indiana House of Representatives ignored the will of 80% of Hoosiers who want to vote on the future of marriage.
I am thankful that we have legislators who are willing to ignore the will of 80% of Hoosiers. Ignore 100% or whatever it takes. Legislators took an oath to obey the Constitution and if upholding those principles conflicts with the will of the people then those representatives have done their job admirably.
Indiana was the first jurisdiction in the world to impose, by law, forced sterilization on citizens deemed to be unfit to procreate. This law formed the basis of the genocide legislation imposed onto certain Germans during the Third Reich. That legislation was supported by the majority.
That illustrates the tyranny of the majority. A simple analogy used by those of us who cherish liberty is that democracy is three wolves and one lamb voting on what to eat for dinner. Apparently the AFA wants the wolves to make the laws in Indiana. That is the immorality of pure democracy. It does not respect the rights of the individual.
[A] conservative respects the moral order of society.
What is moral does no harm. HJR3 as introduced would have led to harm. I have written about how it would invalidate Domestic Violence penalties and prevent victims from receiving services. It would also allow for a parent to terminate a child's relationship with the other parent by nullifying laws that would protect the child's right to that relationship.
[G]iving the people of Indiana the freedom to decide the matter once and for all.
This is the statement that shows the true desire of HJR3 proponents and how their claim over voter rights is fallacious. Another way to frame this sentence and give the same effect is to say, “Keep future voters and legislators from being able to have the ability to adapt statutes to the changing dynamics of society.” HJR3 is all about preventing people in the future from having a direct input into the government regulation of their lives. Imagine if one hundred years ago we had a constitutional amendment to define “biological parent” as “those parents who conceived their child through sexual intercourse.” Other parents would be adoptive parents. But then IVF came along and children were born to biological parents, as we know the term, who did not have intercourse.
What You Need to Know about Marriage
I received a pamphlet produced by Alliance Defending Freedom, Family Research Council, Focus on the Family, National Organization for Marriage, and The Heritage Foundation.
Let me begin by saying from a public policy standpoint [a position taken that is based upon statistical generalities] that a marriage between a man and a woman is best for raising children. I strongly advocate for presumptions that children are most well-adjusted when they have a meaningful and regular relationship with their mothers and fathers. This is acknowledged in the Indiana Parenting Time Guidelines and numerous published opinions of the Indiana Court of Appeals and decisions of the Indiana Supreme Court.
This pamphlet correctly acknowledges that “children need a mother and a father.” In advocating their public policy position on marriage these organization make what I believe to be some spurious claims. These include that marriage “brings together sexually complimentary spouses, in a monogamous relationship,” that “marriage is about the needs of children,” and that “Marriage ensures the well-being of children.” These statements on their face seem plausible from the standpoint of a policy advisor who works in the child custody arena I take issue with each.
Empirical data and my observations or interviews reveal that a substantial percentage of marriages are not monogamous. Further, that a high percentage of same-sex marriages are monogamous and are co-habitating unmarried parents.
While much of the claims of proponents rest on the presumptions about the historical perspectives a traditional marriage their current claim do not bear such congruence. “Marriage is about the needs of children” is a new concept. Marriage has long been a method of securing relationships between families for political or business purposes. Marriages were often arranged by parents. Black's Law Dictionary defines marriage to include “A contract, according to the form prescribed by law, by which a man and woman capable of entering into such contract, mutually engage with each other to live their whole lives (or until divorced) together in a state of union which ought to exist between a husband and wife.” That sounds vaguely like a civil union. Likewise to the business or political contractual application, marriages often served as a means of support for a woman and subsequently upon the bearing of children as a means of securing labour for the agrarian man. It was not until post-industrial revolution that a marked shift began to occur in which marriage became more focused on children's needs including the adoption of laws to protect children from being indentured into labour by their parents. To this day, in Indiana, there still exist a statute requiring adult children to financially support their parents. Thus, marriage or rather child rearing in general, is not entirely about providing for the needs of children but is a financial security blanket for parents under threat of imprisonment.
Then there is the well-being of children claim. If marriage does ensure the “well-being of children” then why are children in married households being abused and neglected? Why I am always involved in at least one court case involving allegations of domestic abuse between married parents?
Much of the information cited for opposing gay marriage or civil unions is that married mothers and fathers produce the best outcomes for children. Again, I emphatically say this is true. However, these authors juxtapose this data to same-gender civil unions. This is misplaced as the researchers generally are comparing married parents to unwed parents or single parents where one parent has abandoned the child. After traditionally married parents a civil union among monogamous same-sex “parents” is best.
One interesting claim I found was that “no one has the right to redefine marriage for all of us.” I almost find this bizarre. Allow same-sex civil unions would do nothing to restrict marriages as they currently exist between mixed gender adults. However, HJR3 would bar the government from recognizing same-gender relationships similar to marriage including allowing grant money to be used to supply Domestic Violence service to victims of same-sex abuse.
I will close on this statement. Marriage is “a permanent and exclusive union of a man and woman for childbearing and rearing.” Based upon that limitation then sterile persons should be barred from marriage. This also ignores the numerous cases I have seen where same-gender “parents” solidified their relationship through a ceremony for the purpose of being parents to the child or anticipated child of one of the partners.
Regardless of the position one holds on this issue the debate should not be tainted by misinformation, omissions, or lies.
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, January 29, 2014
GPS Tracking following Domestic Violence conviction - 2014 Indiana Senate Bill 390
29 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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One of the advantages to state legislation is that it is rarely verbose. Senate Bill 390 which has been introduced by Senator Richard Young easily complies with this practice. Senator Young is seeking to add a new section to the criminal code related to sentencing of Domestic Violence offenders. The complete text of the bill is;
Ind. Code § 35-38-2-2.8
(a) Except as provided in subsection (c), if:
(1) a person is convicted of a crime involving domestic of family violence; and
(2) the person is placed on probation or parole;
the sentencing court shall require the person to wear a GPS tracking device as a condition of probation or parole. The court shall require the person to wear the GPS tracking device for at least the first six (6) months of the person's probation or parole.
(b) If a court requires a person to wear a GPS tracking device as a condition of probation or parole, the court shall require the person to pay any costs associated with the GPS tracking device.
(c) A court is not required to require a person described in subsection (a) to wear a GPS tracking device if:
(1) the person is unable to pay the costs associated with the GPS tracking device due to indigency; and
(2) funding for GPS tracking is not otherwise available.
The effect of this bill is readily understood. Upon a conviction for Domestic Violence an offender, as part of the sentencing, will be required to wear a GPS device for no less than the first six months of probation or parole. The offender is required to pay for the cost of the monitoring. If, however, the person is indigent and funding is not otherwise available then the court is not required to order the GPS monitoring.
I have had clients who were on GPS monitoring as part of the condition of pre-trial release. While there is a financial cost associated with it, in at least one case it served my client well as he was able to use it to demonstrate that he had not violated the pre-trial No Contact Order as had been alleged. With the risk of probation revocation being high along with a reduced due-process standard the GPS monitoring could aid the probationers.
Likewise, the GPS monitoring could aid the protected person by certainly providing an incentive to the offender to not intentionally violate the No Contact Order. While the orders are never a guaranteed protection and neither would be the GPS monitoring it could still provide a valuable sense of security to the victim.
It is not clear to me from the language of the bill that a victim could offer to pay for the monitoring if the court could not otherwise require it. It does seem permissible though and could be worth it for those victims who would wish to pay the costs.
This bill has been referred to the Senate Committee on the Judiciary.
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, January 22, 2014
How to get a 28 year Protective Order lodged against you and then waste time appealing it
22 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The Indiana Court of Appeals delivered an opinion in A.N. v K.G. Yesterday which it chose to publish. [A published opinion is one that can be used as precedent and usually reflects an important legal decision or a change to prior decisions] The matter was originally heard in the trial court by Barbara Crawford, Judge Marion County Superior Court.
On May 18, 2010, K.G. filed an ex parte motion for a protective order against A.N., which the trial court granted the same day. On June 11, 2010, following a hearing, the trial court granted him a protective order for two years. The protective order prohibited A.N. from acts of violence, stalking, and “harassing, annoying, telephoning, contacting or directly or indirectly communicating with” K.G. and three other persons.
Over the course of two years K.G. filed multiple information for contempt alleging that A.N. had in addition to making “non-stop” phone calls to his home phone and his ex-wife’s phone, A.N. had “spray painted [his] knew [sic] house.” Upon the first hearing, April 5, 2011, the trial court found A.N. in contempt. She received a suspended sentence of 120 days in the Marion County Jail and was ordered to complete 80 hours of community service and pay a fine. K.G. later claimed that A.N. had made numerous calls to his home and that he possessed a picture of his home phone that recorded the telephone number A.N. used. K.G. alleged that on one occasion, he spoke to A.N., who said, “I’m back[.] [Y]ou better watch your ass.” When reminded by K.G. that a protective order was in place, A.N. allegedly responded, “F*** that protective order[.] I can do what I want.” Apparently so but that can come with consequences. The trial court found that A.N. violated the protective order and ordered her 120 day sentence executed and placed her on home detention. The trial court thereafter extended the protective order to November 29, 2040, for a total of 28 years.
I won't go into a detailed legal analysis of A. N.'s appeal as most of it was without merit. However, the one issue that deserves attention was her claim that the judge acted as an advocate. This is something that it often brought to me as a concern by potential clients when the judge asked questions during the proceeding or made sua sponte [on the judge's own motion] objections. The Court of Appeals addressed it in this manner;
The record shows that the trial court’s questions were neutral, served to clarify K.G.’s testimony, and did not discredit A.N. or her defense. Although A.N. alleges prejudice since the trial court cited the photograph when explaining its rationale for finding A.N. in contempt, A.N. was not prejudiced because she cross-examined K.G. on the photograph. We therefore conclude that the trial court did not act as an advocate by asking K.G. foundational questions regarding the photograph. See Trotter, 733 N.E.2d at 532.
A trial court has a duty to remain impartial and refrain from making unnecessary comments or remarks. Cook v. State, 734 N.E.2d 563, 566 (Ind. 2000), reh’g denied. However, not all untoward remarks by a judge constitute reversible error. Id. at 567. The remarks must harm the complaining party or interfere with the right to a fair trial. Id. Further, the court does not engage in improper advocacy by stopping improper cross-examination on its own motion. Id.
The record reveals that each time the trial court interrupted A.N.’s cross-examination, the questions posed either mischaracterized K.G.’s testimony or were argumentative. However, the critical question here is whether the trial court’s remarks harmed A.N. or denied her a fair trial. See id. They did not. In the first instance, A.N. simply rephrased the question and proceeded with cross-examination. After intervening in the three instances of argumentative questioning, the trial court sought to move the proceedings forward, for example, by instructing A.N.’s counsel to “stick with the facts of these contempt petitions.” Consequently, A.N. has not shown that the trial court’s remarks constituted improper advocacy or interfered with her right to a fair trial. See Cook, 734 N.E.2d at 566.
Legal analysis of the proceedings aside, the important fact to take away from this is that violation of a Protective Order or a No Contact Order can result in a civil order of confinement. It can also lead to a separate criminal charge. As in this case A.N. is going to be burdened with being required to comply with this order until the year 2040. She seems to demonstrate a clear unwillingness to comply for the first three years, even after incarceration, and if it doesn't cease a criminal charge will likely follow.
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.
