24 March 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In doing research I often come across a tid-bit of information that is not what I was seeking but is serendipitous. Such is the case with the appeal of a criminal conviction and the guidance provided by the Indiana Court of Appeals when it comes to effective representation. The case I review today clearly demonstrates that it is imperative that when seeking legal counsel to represent you that you understand the dynamics of the representation.
In child custody cases I feel that attorney and counsel selection is more significant than parental actions. This is why I have repeatedly written about this matter, why I have developed an initial questionnaire for prospective attorneys and why I implore parents to have me conduct attorney interviews.
This point is so important that I want to stress it again. The counsel you get and the subsequent progression of your case is more important than the actions that either you or the other parent have undertaken. Once you enter the realm of the courts you are subject to a litany of rules and procedures. If allowed, almost as by design, the cases progress unbearably slow. It has not been unusual for me to be involved in cases than proceed for three years on one motion including appeals. Which brings me back to the crux of today's issue - an appeal.
In Jason Frye vs State of Indiana, Frye appealed his conviction in Clinton Circuit Court of six counts of Class D felony possession of child pornography. Frye raised the following issues as error:
I. Whether the trial court abused its discretion in admitting four-inch by six inch prints of photographs recovered from Frye’s cell phone with a 3.2-inch screen;
II. Whether the trial court abused its discretion in admitting evidence of Frye’s battery of his girlfriend;
III. Whether the trial court abused its discretion in admitting evidence of Frye’s failure to pay child support;
IV. Whether the State presented sufficient evidence to support Frye’s conviction; and
V. Whether the trial court properly instructed the jury on its duty to reconcile evidence based on a presumption of innocence.
I have provided a link to the decision so you can read just how illogical Jason Frye actually is and the numerous opportunities to avoid conviction which he simply threw away by committing additional moronic acts. More to the point of attorney selection though is the ability of an attorney to do what the lay person lacks the propensity to navigate with ease – the court rules. Frye's first point of contention – the size of the photos – was addressed in his brief by stating:
By the State adding size to the pictures, they distorted the original product and presented a fabricated version of the evidence to the jury. Larger pictures of any type of pornography have the ability to invoke more stimulus, sexual arousal and desires from any one person. These larger photos were improperly given to the jury for them to decide if they meet the statutory definition of child pornography and sexual conduct.
I agree with Frye on this contention although I don't think it affects the underlying nature of the offense as the images were not distorted. The appellate panel wouldn't typically get an opportunity to opine because of Frye's rule violation. However, as the court stated it chose to decide on the merits anyway:
First, we note that Frye fails to provide any statement of the applicable standard of review. Therefore, Frye has waived this argument on appeal. See Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001) (noting that failure to comply with Indiana Code Appellate Rule 46(A)(8)(b), which requires that an appellant’s brief include a statement of the applicable standard of review for each issue, results in waiver of that issue for appellate review). In his reply brief, Frye incorrectly characterizes the standard of review for rulings on the admission of evidence as de novo. Waiver notwithstanding, we disagree with Frye’s assertion that the trial court erred in admitting the enlarged prints of the photographs.
Frye next challenges the trial court's admission of evidence of his battery on the girlfriend. The panel wrote:
A claim that the trial court abused its discretion in admitting evidence may be presented on appeal only where there is a timely trial objection stating the specific ground of objection. Ind. Evidence Rule 103(a)(1). By failing to object to the evidence now challenged, Frye denied the trial court the opportunity to make a final ruling on the matter in the context in which the evidence was introduced. Consequently, Frye has failed to preserve the right to claim evidentiary error on appeal. See Raess v. Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008).
We further note that Frye has again failed to provide a statement of the standard of review, thus waiving this argument on appeal. In his reply brief, Frye incorrectly designates the standard of review as “plain error.”
In reading the opinion one learns that the battery was a result of the girlfriend purportedly planning to contact the police and provide the cell-phone as evidence to them from which Frye then allegedly committed battery upon her. Thus, it is without doubt that it is admissible evidence. Contrarily Frye next asserts that the court erred by admitting evidence of his failure to pay child support which has absolutely nothing to do with the underlying charge. This demonstrates not only the ethical shortcoming of the prosecutor but a poor decision which opens the case to attack on appeal and may evoke sympathy from the jurors. The appellate panel opined that it was an error for the court to admit that evidence but given the totality of the evidence presented that this amounted to harmless error.
Frye's fourth argument is that the jury reached a verdict that was not supported by the evidence. He claimed:
The jury improperly came to the conclusion that the pictures found on the Defendant’s phone met the criteria for child pornography through depiction of sexual conduct. Therefore, the Trial Court’s decision should be reversed as the photographs on the Defendant’s phone are not child pornography as prescribed by I.C. § 35-42-4-4.
Once again though Frye failed to provide any statement setting forth the appropriate standard of review and cited to no relevant legal authority. The panel therefore ruled that pursuant to Indiana Appellate Rule 46(A)(8), Frye had waived this argument on appeal. See Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999) (providing that failure to support each contention with citation to relevant legal authority results in waiver of that issue on appeal); see also Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001). Regardless, the argument was without merit. Ind. Code § 35-42-4-4(a)(4) provides that photography which depicts “exhibition of the uncovered genitals or female breast with less than a fully opaque covering of any part of the nipple”
The funniest part of this contention is the panel's reaction to Frye's legal theories. They first say “Frye inexplicably frames this argument as an admission of evidence issue and names the standard of review as de novo.” Next, the caselaw that he cited, Delagrange v. State, 981 N.E.2d 1227 (Ind. Ct. App. 2013), was transferred to the Indiana Supreme Court prior to the filing of his brief and thus it had been vacated and therefore was no longer legal authority. They close this argument with “We admonish counsel to correctly indicate the procedural status of all cited cases.”
Finally, in a 'where-were-you' crescendo to this ridiculous appeal was the jury instructions argument. Frye argued that the trial court erred by refusing to deliver the following jury instruction tendered by his counsel:
If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the Defendant, and the other to his innocence, it is your duty, under the law to adopt that interpretation which is consistent with the Defendant’s innocence, and reject that which points to his guilt.
This instruction is spot on. In fact, there is caselaw based on the rule of lenity that says if there are two varying interpretations and one points to not guilty then that is the position that must be applied to the defendant. Clearly the trial court should have tendered this instruction to the jury. But in a final humiliating blow to Frye's attorney Thomas F. Little of Power, Little, Little, & Little in Frankfort, Indiana the panel concluded:
A reading of the transcript of the trial court proceedings, however, indicates that the trial court did in fact deliver the instruction requested by Frye, with no material variation, and nearly word for word. Therefore, Frye’s argument concerning the instruction at issue is moot.
The primary role of the attorney is to deliver the case to the trial court, or as in this case the appellate court, consistent with the rules of the court. It is not a difficult task. I do it regularly and proficiently with no law school training and not having passed the bar exam. Secondary to presentation of the case is development of the case and formulation of the evidence consistent with sound legal theory. Finally, there is the realm in which I provide the greatest assistance which is finessing the client into focusing attention on the children, harmonizing all aspects of life with the custody litigation, maintaining composure and being best prepared for a court appearance. Additionally, I also work with attorneys on formulating the issues, developing strategy, writing pleadings, and coordinating presentation of evidence. As you can see from this case all of the preparations and finessing in the world are for naught with an attorney who doesn't make proper objections at trial, can't even identify the appropriate standard of review, and argues an issue that is moot.
If you want to have a successful resolution to your child custody case while using an attorney then you best make sure that you trust that attorney to have the care for, dedication to, and necessary skills to advocate for your child. As you see from the appellate panel's opinion they attribute everything to Frye, not Mr. Little. This is because when you retain an attorney to represent you then your voice is gone and your attorney now speaks for you.
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. 
Monday, March 24, 2014
Why a Competent Attorney is a Must or How to Stay in Prison
Tuesday, November 19, 2013
Courtroom Procedure - The Facts on the Truth
18 November 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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I have on numerous previous occasions detailed the nuances of language to you. Sometimes for fun, to attempt to make communication in relationships more harmonious or, as today, to improve your litigation skills. Particularly I want to draw attention to the differences between “facts” and “truths” for both the trained advocate and the layman. While law schools are adept at instruction on marshaling evidence, presentation of evidence, ensuring truthfulness in testimony and establishing the facts I don't feel as though enough attention has been given to “facts” and “truths”. To be effective practitioners I believe we need to better understand the application of words and here, the philosophical and etiological underpinnings of truth and facts.
Truth is a difficult term to define. Go ahead and try without using any resources beyond the concept already contained in that four pound mass in your skull. Write down what you have managed to compose in your mind. While you are at it go ahead and scribe your definition of “fact” which I'll get to after truth.
On the cusps of the 20th century philosophers such as Betrand Russell began to reject the identity theory of truth. According to the identity theory, a true proposition is identical to a fact. Propositions are what are believed, and give the contents of beliefs. Thus it was true propositions that were facts but not false propositions. However, Russell rejected the distinction among propositions as true or false as one cannot believe something known to be false. Borne from this was the correspondence theory. The basic idea of the correspondence theory is that what we believe or say is true if it corresponds to the way things actually are – to the facts.
Structured propositions, which are akin to sentences, can correspond to facts when they have the same form. The proposition that Parent A is abusing the child corresponds to the fact that Parent A violently beat the child.
The coherence theory states that a belief is true if and only if it is part of a coherent system of beliefs. Individual judgments or beliefs then are certainly not the whole complete truth. Thus any statement of fact related to an act by a parent must be viewed in context to parenting in its whole – coherence. This belief of the idealists make little room between a system of beliefs and the world it is about, leaving the coherence theory of truth as an extremely natural option.
The pragmatist theory holds that true beliefs are guaranteed not to conflict with subsequent experience. I have to reject this theory in that what is true to someone is based upon a set of beliefs which are circumscribed by his subjective experience. As for my opinion I regard the correspondence theory to be most relevant to the arena on the child custody battle. So, as for truth, I offer the explanation this way:
– It is only the truth to me if it corresponds to what I believe to be the truth. –
Thus, what one believes – is the truth. At first impression this would seem to conflict with reality but it doesn't.
I use algebraic functioning to check truths. A truth statement can be accurate if it can be deduced through a mathematical process of attribution. This does not comport with reality though in the broader sense. Reality is relative to the observer. This brings us to the conflict among observers. Everything we “know” is based upon our experience – be it from observation or recitation by others -- and how our senses processed it. Thus, the same action can have more than one reality which can produce multiple truths.
Evaluating your witnesses can provide prior insight into the truths that may be revealed at trial. But what about those witnesses appearing on behalf of the adversary? It becomes the work of the practitioner to expose the alternate subjective realities to an adverse witness to produce a belief and subsequent testimony that comports to that which is advanced by his client. This presentation of contradictory stimulus to the belief structure of the witness will likely be done through documentary evidence. The eyewitness who truthfully testifies to observing your client “starting an altercation” at the child's school by yelling at the other parent before being removed can be reconciled to your truth when presented with additional stimulus. A cell phone video taken outside the school displaying a small puncture wound that is still bleeding supports your client's contention that the wound was made by the other parent with a ball point pen. The adverse witness now armed with this new information -- sensory stimulus – develops a new truth.
On 15 September 2009 Rule 201 of the Indiana Rules of Evidence regarding Judicial Notice was expanded to include the records of the court of this state as “facts” admitted into evidence. This is where contradictions in testimony can bolster or harm a case as more truths are introduced. Eliciting the “truth” in a judicial proceeding can produce a murky repository for which the practitioner much traverse in his effort to paint a clear picture of the circumstances favourable to his case.
Yet, while a vigorously contested case can produce mounds of evidence and days of testimony, this may be deficient. While witnesses are sworn to provide the “truth” to the court there is a particular type of fraud which is called an "omission". Anyone who is familiar with being a courtroom witness knows the oath -- to tell the truth, the whole truth and nothing but the truth. It is that "whole truth" that some people don't understand or try to avoid for which the practitioner must have prior awareness.
The threat of prosecution for the offense of perjury is designed to promote truthful testimony. IC 35-44-2-1 provides that a person who:
(1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or
(2) has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false commits the offense of perjury.
The statute is written in the affirmative sense in that the offender makes a “false” statement – the opposite of “truth”. Thus, the negation – lack of whole truth – is not an offense. Likewise what one perceives as false is subjected to the same demonstrations as the perception of truth.
These illusory truths that are revealed must be reduced to facts. This again is another subjective. In the correspondence theory “facts” are generally taken to be composed of particulars and properties and relations or universals, at least. As I say a “fact” is anything that is generally accepted as true. Hence, it was a fact that the world was once flat. That is, it is not a fact now that our world was once flat but for a period of time it was the general perception that the world at that time was flat and, thus, a fact.
Courts of law do not propound to be the forum which divulges truth. Rather, they are the creator of legal facts. Indiana Trial Rule 52 speaks of this duty as to produce Findings of Fact and Conclusions of Law. The fact as opposed to the truth is a much more objective finding. Facts are what are accepted to be true by a population. A truth requires just a single observer. An event can produce numerous truths dependent upon the number of observers as well as the circumstances under which their sensory organs were stimulated and how their brains processed that information.
Truthful utterances therefore are the effect of an event reference on the sensory organs and the processing and memory formulation of the observer. Built into that is a range of subjectivity that requires a skillful navigator to wade through in an effort to provide an accurate recollection of an event. There is no guarantee that such accuracy will be received. Our higher courts have acknowledged this in saying that due process requires “an opportunity to be heard”. Never is there mention that courts are to make a “correct” verdict or reveal the truth.
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.
Saturday, November 2, 2013
Revelations at the 2013 Indiana Infant Mortality Summit
02 November 2013
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The 2013 Indiana Infant Mortality Summit sponsored by the Indiana Department of Health was held at the JW Marriott in Indianapolis on Friday 01 November 2013. Attendees were welcomed by Dr. VanNess, Indiana State Health Commissioner, who was followed by Governor Mike Pence's opening remarks. David Lakey, M.D. Presented Infant Mortality: Lessons Learned. Panelist presentations on 'Infant Mortality as a public health issue' were given by Niceta Bradburn - Indiana’s Infant Mortality History, Christina Ryan - Levels of Care, Miranda Spitznagle - Tobacco Use and Pregnancy, Norm Hess - 39 Week Quality Improvement Campaign, and Virginia Caine, M.D. - Disparities.
To begin here is the definition of infant mortality used for the Summit.
The death of a baby before his or her first birthday is called infant mortality. The infant mortality rate is an estimate of the number of infant deaths for every 1,000 live births. The rate is often used as an indicator to measure the health and well-being of a nation, because factors affecting the health of entire populations can also impact the mortality rate of infants.
When it comes to rating the well-being of Hoosiers we are consistent in our dismal performance across numerous measures. Indiana ranks near the bottom, 45 of 51 jurisdictions, when it comes to infant mortality. Only one time in 113 years has it been below 7.0: that was 6.945. in 2011 the rate was 7.7 deaths per 1,000 live births. That translates to 643 lives lost. Our current child mortality ranking is slightly worse than our overall health ranking -- 41 of 51. This produces an impact on business location in Indiana. An unhealthy population is less likely to show up to work and be productive and are more expensive for those providing sick care coverage to them. In essence Hoosiers are choosing to reduce employment opportunities in Indiana for themselves and thus – from reduced tax revenues – the resources available to combat infant mortality.
A significant contributor to this overall dearth of well-being and infant mortality is tobacco smoking. Although it is widely known that an in utero child is directly harmed by the chemicals delivered to it from the mother's lungs, 16.6% of pregnant women in Indiana [2011] fail to love their children and instead choose to harm them through their cigarette use. This is in contrast to the 9.1% nationally which is still deplorable but 45% less. When it comes to the wealthy failure to love their unborn children increases dramatically. 30% of the Medicaid Moms in Indiana smoke cigarettes while pregnant. In Boone county, where I reside, the rate is between 35 and 39%, much higher than Marion County. I mention that because there exists a false presumption that it is the minorities who don't care about their children.
When the statewide rank of 16.6% is broken down by race/ethnicity these results are revealed: Whites 17.9%[highest], Blacks 13.3%, Latinos 5.1% [lowest]. Another myth is that this number is skewed upward by the uncaring and irresponsible youth. This presumption is consistent with the longstanding tradition of parents blaming the children for their failures. It is, in fact, the children who are more responsible and are ignoring the traditions of harm that their parents sought to embed within them. The highest rate of smokers is among the 45-54 age range. The second highest is 25-34. Not hardly the youth that take the brunt of blame for societal ills.
Another way that Hoosier mothers who are pregnant choose to risk the well-being of their unborn children is through obesity. Obesity increases the probability of premature birth to 25%. Indiana ranks as the eighth most obese, a substantial improvement from some recent rankings as high as third. In essence, anyone who condones obesity as just another lifestyle choice is also choosing to accept having more babies die from the complications of premature birth. One of the unavoidable consequences of reducing the stigma of obesity is that it has resulted in significant cost, including the death, of babies. Are you one who succumbs to political correctness and avoids offending anyone or do you value the lives of unborn children?
Saving the best [or perhaps the worst] for last is the absolute deplorable choice of mothers to inflict harm upon the development of their unborn children through premature birth. These mothers are choosing to subject their children to potential life threatening conditions in addition to long term health and development adversities. Elective inductions prior to full-term increase the probability of cesarean section, respiratory distress and cognitive deficiencies as well as behavioural difficulties. Babies delivered at 35 weeks as opposed to full term have brains that are one-third less in weight.
The plan of the Indiana Department of Health includes reducing smoking and obesity while promoting and increasing safe sleep practices and breastfeeding.
The benefits of breastfeeding to both mother and child are overwhelming. Yet we still have a high proportion of mothers who choose not to breastfeed or seek to prematurely ween the child [prior to three years of age]. Latinos have the highest rate of breastfeeding while blacks have the lowest. I suspected that there would be a correlation between prenatal care in the first trimester and breastfeeding – surmising that both reflected the same lack of care. This did not hold true though. Mothers who chose to receive prenatal care by race/ethnicity are Black 56%, Latino 57%, and White 70%.
Even with lower prenatal care rates Latino women do not give birth to children with nearly the adverse effects that black women do. The adverse effects still exist when standardized for education level. Black college educated women have more than double the rate of low birth weight as compared to white women. The rate is also much higher than that for Latinos.
One of the factors that I thought would be a major contributor to infant mortality was lack of father involvement. Although it was not mentioned during the presentations it was in my later conversations with the participants who confirmed the suspected correlations. The data on marriage seems to confirm this. Although there are unmarried parents who function and support each other and their children, both born and unborn, better than married parents the norm for unmarried parents is a lack of father involvement in the pregnancy which declines over the lifetime of the child. The rates of unmarried parents are; Black 79.9%, Latino 48.6%, and White 37.8%.
I came away from the Summit being reassured that the harms which befall the unborn children and those in their first year are nearly all preventable and are the result of the decisions made by parents. As with most harms that parents inflict upon their children, infant mortality is just another of the acceptable consequences that parents often feel is the result of the inconvenience that would be imposed upon them if they were to make logical lifestyle decisions that demonstrated love for their children.
Governor pence had some poignant remarks about the infant mortality issue. In emphasizing the importance of father involvement he said, “I have a PhD in D-A-D” and provided related anecdotes. He challenged participants to “think fresh about how we confront this challenge” and cautioned that “government will not do this alone.”
While infant mortality is usually the result of choice it is not nearly as often as intent. Those who made the choice to subject their babies to the potential for death still feel the heartbreak of that loss. I trust that I have provided some information here that can give you the knowledge to make responsible choices and to help those who are pregnant or plan to become so do the same. As Governor Pence said, “This is not about reducing numbers but about reducing heartbreak.”
If your client is a father in a paternity or dissolution action wanting to be more involved in the life and well-being of his child 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.
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.
Monday, April 22, 2013
Determining the Best Interest of the Child: Obtaining an Attorney that can Effectively Advocate
This is the final in a three part series of articles about the 2006 Published opinion in re: The Marriage of J.M. v N.M. There are three distinct issues that are covered in this case that will be of benefit to anyone experiencing contested child custody. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The first segment was about the use of third-party evaluators and mental health professionals in shaping child custody decisions followed by the use of Domestic Violence Restraining Orders [DVRO] in shaping child custody settlement agreements. Today I conclude with finding an attorney who can effectively advocate for you in a child custody case.
As with anything you may encounter in life from drivers on the road through restaurants there is a range of quality. You may find some to be intolerably poor to delightfully supreme. Yet these drivers, at least those granted an operator's permit, have successfully passed an exam just as the restaurants have passed inspections from various government regulatory inspectors. Lawyers fall within a similar range of competence although all have passed a regulatory exam designed to limited competition. Oh I'll just say the reason given by those in control to appease the masses – to ensure that they are qualified to provide competent counsel and ensure your legal protections.
When it comes to custody of your child you are going to want an attorney that lies more toward the delightfully supreme than the intolerably poor in competence. You may not know how to measure that level of competence though and if you don't your reliance upon other could land you in an ill-fated custody proceeding. In this case Father was an attorney who practiced in a law firm. Here is a portion of the time-line related to his psychological problems and employment in the firm.
He was in counseling until October of 2001 when he began therapy. After being treated for about a year he terminated his therapy. He returned for treatment beginning in April 13, 2004, but then chose to terminate that treatment on June 15, 2004: the therapist noting “poor prognosis.” Throughout this time he was practicing law while in the firm.
In late July of 2004, a partner in Father’s firm found him “sobbing” and “shaking” with “his head down on his desk.” Father informed the law firm that he had a condition which was getting worse and that he was “drinking to cope.” He further disclosed that he had been advised to seek an “extensive . . . treatment program” for his problems. Father then took leave from his employment and went on short-term disability.
In October 2004 he was discharged from therapy and attempted to return to work. However, shortly thereafter he decided he no longer wanted to work for the law firm and terminated that relationship. During October 2004 he filed for divorce and the parties entered into a provision agreement towards the end of the month. He was not working at the time and chose to remain unemployed for six months; he then began work with another law firm in 2005.
At some point Father terminated his supervised parenting time with his child which his counsel explained was because Father thought the arrangement was upsetting the child. Father testified that to continue the arrangement would be “perpetuating . . . harm” to the child. Father sought unsupervised parenting time consistent with the guidelines.
A report by the GAL indicated that Father had been unwilling to “complete a psychological evaluation including a drug and alcohol assessment,” the Arbitrator concluded that Father “must be restricted to supervised visitation with his son under the current order until further notice.” Accordingly, it was ordered that Father “have therapeutic parenting time with [the child] through Choices, and shall continue until it is determined that unsupervised parenting time would not endanger the child’s physical health or significantly impair the child’s emotional development”; and that Father “have a complete psychological evaluation completed by a qualified professional” and which “include[s] a comprehensive alcohol and drug assessment”; and that Father “follow all recommendations made based upon the evaluation.” Father was not given unsupervised parenting time.
For much of the time that Father was engaging in behaviours that the court deemed to be potentially harmful to his child he was practicing law in two different law firms. The idea that he could get unsupervised parenting time upon a failure to abide by an agreement he made but didn't follow in regards to parenting time, including ceasing parenting time sessions, is absolutely misplaced.
You may think that if a law firm is employing him then he must be competent enough to perform his job. That assumption is in error. The self-described decision to treat psychological issues with a regiment of alcohol demonstrates the lack of rational judgment exhibited by this attorney. The decision to cease attending supervised parenting time with his child because it would be perpetuating harm demonstrates a mixed level of logical decision making skills. The better arrangement, I believe, would have been to decide not to be in a condition or exhibit behaviours that would perpetuate harm instead of suspending his relationship with his child.
With all of that known to then seek unsupervised parenting time demonstrates not only an unwillingness to accept responsibility for his actions but also that he apparently didn't feel a need to change his behaviours. Obviously, neither he nor his attorney were aware of the nuances of child custody decision making. Law schools don't teach how to litigate the nuances of child custody decisions that are -- as I say on my business card –
“not about the law, but are judgments based upon parenting skills and behaviours.”
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.
Monday, January 4, 2010
Some thoughts on marriage
No soliloquy on marriage would be complete without that comedic one-liner; You know, the leading cause of divorce is marriage.
On New Years Day this year I ran a 5K event titled "What was I Thinking?" which was titled that for good reason. It was windy and 12 degrees. It made me think about what I have heard from many of my divorcing clients; "What was I thinking?" Marriage had been on my mind lately anyway.
I recently had the opportunity to discuss marriage with one of my girl friends. Actually, the most important one. She is the one whom I've had a relationship with like no other. We have complete trust in each other, have told each other our most intimate secrets which have never been revealed to any other and we don't know how or why we came to be so connected.
At some point we discussed what the pinnacle of our relationship could be. We decided we would rule nothing out and let the relationship take its own course. So, eventually we could get married and have children if that is where it flowed. From there that seemed to be the direction we were heading.
Then practicality entered the scene. That is one of the things I found most attractive about her; fun-loving, spontaneous, ambitious, thoughtful and practical. There were many things to consider for us that the usual couple wouldn't face. A substantial chronological age difference and opposition from parents were only two.
There were also many reasons why, at a different time and place, we would be ideal. Some of these reminded me of a few things in one of the many books I have about marriage, divorce and custody. So, I went back and read through that again. I also gave some thought to traditions, mores and philosophical motivations for marriage.
I in no way intend for this post to be a complete checklist or evaluation for potential newlyweds but as the title says, it is just some thoughts on marriage. I get into some of those in future posts.
I was married once. I tried my best to keep it intact but she eventually forced what was best but also what I didn't want to face. It simply was not healthy for my son to face the violence she committed against him and witness it against me, have to beg for her attention and to have a mother who he would never know if she would be home that night. She eventually abandoned us one day and went to live with one of her boyfriends.
It took some coaxing and help from extended family but she did eventually start taking our son with her for some visitation time. She then became extremely interested in having custody of our son once she hired a lawyer and filed for divorce. It was around that time that her recollection that I must have been the one committing acts of domestic violence became clear to her. So, that background is there for you to consider when reading my thoughts here.
My first thought is that no one is required to get married. Sure, the majority of people do. But are the majority getting married for some extrinsic reason such as familial expectations or religious mandates? Your mother likely first clued you into to these invalid reasons when she asked you during one of your risky youthful pleasures, "If everyone else jumped off a bridge would you?"
There should only be two people who decide to get married. Some cultures leave the decision to the parents of the bride and groom to be, which does have some merit, but I believe the two people who intend to marry should be the ones to make that decision. A baby in the womb is not a valid reason to get married. You may think differently but these are my thoughts.
My reason is that there are many happily unmarried parents providing a stable family for the children while at the same time there are likely more unhappily married parents providing an unhealthy relationship environment for their children.
Conversely there can be many people who decide for you to not got married. These are the ones most people in lust ignore. If the advice of family and friends in not to get married then pay very close attention. Few of them are having sexual relations with your intended spouse which may give them a clearer perspective.
Some people may still base their motivation for marriage of religious foundations that say it is improper for persons to live as man and wife or bear children outside the covenant of marriage. However, religions have always been malleable to the forces of society as that is how they maintain adherents and thus power. Society in large part no longer considers pre-marital relations a taboo and religion must adapt itself to this concept or lose the so-called faithful. So let's stick to the relevant factors of the parties involved.
Before getting married you should think about the most annoying characteristic of your future mate. If you can't think of one now it is only because you are lovestruck. Ask your friends for help. Now imagine this most annoying trait getting worse and becoming more annoying over the years. Make sure you can live with that without intentionally placing yourself at the mercy of mob enforcers making you pay up. My point is that you cannot change what you don't like about your partner. You must be able to live with the good and the bad.
Make sure you listen to each other. I don't mean try to placate your partner by pretending to listen attentively while he or she rants. My dear friend and I couldn't stop talking to or listening to each other, sometimes throughout the night. But we heard each other. We genuinely were interested in knowing the thoughts of the other; fears, wishes, experiences and desires. For months we did not go through any 12 hour period without talking to each other in person or, on the rare occasions I left town, by phone. Our conversations have always been uninhibited. If you can't do this then reconsider getting married.
This one is so cliche but here goes anyway. Beauty is only skin deep. Of course that all depends on what you consider beautiful. A little girl friend recently went up to another chick saying I wanted her phone number. I, of course, didn't but that is one of our juvenile ways of just messing with each other. However, the girl was quite a hottie with all the make-up and cute little garments that snugged her shapely body in all the right places. Always a red-flag to me. So, it was no surprise to me when my girl friend comes back and says, "Uh, she is a b@#$%" My dear friend, on the other hand, has a smile and look about her that accentuates her natural physical beauty which is only surpassed by her inner beauty.
Back in high school I once woke up next to a girl and practically said "Who are you?". I soon realized that the reason she spent an hour in the bathroom in the mornings wasn't an intestinal issue. I don't think this reflected much on her character but just goes to show that looks can deceive.
However, there are men and women alike out there that spend significant amounts of time and money in an attempt to improve their physical appearance in cosmetic ways. I believe this is usually to accommodate some intrinsic deficiency. Physical appearance is the means by which we nearly all first notice one another. It should not be the factor upon which a long-term relationship is built though. Physical acts shouldn't either but I will delve into that arena in a more in-depth post later.
I cannot deny that money is a factor in marriage if for no other reason than it will be if there is a divorce. But, first let me take you back to the beginning. Keep money in mind when choosing a partner. That's right. Consider the financial viability of your potential spouse and forget what the Beatles said. I have enough experience with couples to know a few certain truths. One is that financial despair is not healthy for a relationship or raising children. It is the fantasy of romantic lore.
Make sure that you choose a partner who can be a productive contributer to the partnership. This can be through deeds or earning ability. Don't rely upon existing wealth though. That can fade and once depleted so may the reason for marriage in the first place. It could be a fun ride but at some point it will come to an end.
Existing wealth may prompt the thought of a pre-nuptial agreement. Some attorneys advise it as a matter of course no different than advising a client to have a will. I believe it should be a cause for concern though. It says to me from the beginning I do not expect the marriage to last.
With the benefit of hindsight I would have drafted a pre-nuptial agreement before I got married. I thought marriage was for life and assumed that when someone makes a sworn oath to do something for life that, just as I did, she would affirm that commitment. However, I couldn't have been more wrong. Her motivation for marriage and child birth was purely financial. After I failed to comply with her $5,000 cash payment demand for the birth of our son she wanted no additional children with me.
Knowing I would have sought a pre-nuptial agreement tells me I should have doubted her commitment to marriage. Upon consideration of the warnings of others, including her brother, I would not have married her. But, I was young and lovestruck at the time. Eventually it cost me a few hundred thousand dollars in lost wealth. The greatest value from the relationship though is my son which has made all the pain and torment worth it.
This brings me to my closing thought. As women are more often becoming primary earners and the wealthier party going into marriage based upon prior marital settlements this applies to both genders. When considering marriage take a photo of your potential spouse and place it on one side of a table. Next, place your car keys, house keys and bank records along with other financial instruments on the other side. Then decide which you can live without.
If you chose the photo of your potential spouse, friends and family don't object, those annoying habits don't bother you, you have complete openness in conversation and you have relieved yourself of any sexual desires before making this assessment then go forth and get married.
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