21 December 2013
The noir film Each Dawn I Die has not a thing to do with this posting but it does nearly match by name and is a good flick so while thinking of it I linked to the synopsis. Now on with Each Day I Die.
In the realm of child custody litigation I try to establish within parents an overarching goal to be the improvement of the parent-child relationships while serving the desires and needs of the child. Relationships. While this can be done acutely in the litigation process the litigation process itself does not accomplish this overarching goal. It is fundamentally a win-lose dichotomy. So here I intend to demonstrate that conflict in child custody litigation does not correlate directly to a breakdown or damage to the parent-child relationship. Nor does it mandate by default a deterioration in the parent-parent relationship. By changing a frame of mind I propose that the “hostilities” or “conflicts” in child custody litigation may be mitigated and viewed as a positive.
So what do I mean by each day I die? At this time of year we are entering the festivals of rebirth, rebirth of the earth, the fauna and flora within. Though not dead in the demise sense these things experiences an annual life-cycle that mimics death. Simply put awakening from sleep is birth and going to sleep is death. Don't let this befuddle you. Somewhere in your culture you already experience this concept. One who may have a spiritual awakening could be 'born again' while a sick pet may be 'put to sleep' or in the correct application 'put to death.' For this I see it as analogous to the seasons and the evolution of flora. Each year trees shed their leaves, fruits fall to the ground, and an innumerable amount a vegetation withers and decays into the ground. The earth is replenished with nutrients, seeds are embedded in the newly produced soil and in the Spring trees bud and those seeds germinate.
During this annual process plants die – trees appear so as they 'sleep' – but are reborn through the flow of sap within and the germination of their seeds. Similarly, each morning thus far – for many more I suspect – I awaken while at some point later in the day or night I go to sleep. The time in between is when I live. When I experience a life cycle. I begin my day with growth – stretch, exercise and eat well. This is my primer to efficiency and accomplishment. I assess my responsibilities for the day and undertake the actions necessary to achieve progress. I said achieve progress, not achieve the task. I keep in mind that tomorrow does not exist for what can be done today. If I can compliment or thank someone today then that opportunity does not exist tomorrow. I get what needs to be done in this 'lifetime' done in this 'lifetime' because life will soon end. Before I go to sleep I shed all the baggage from that day. No project is left unfulfilled. No person is left hanging. The thoughts that consume my active day quit flowing. I meditate and practice mindfulness. I am mindful that I have lived that day and made a contribution but that as with all things it has come to an end. In short each day I live a full life that has a beginning and an end.
Keep thinking throughout your day that today is the last day of my life, let me live it therefore by making it as meaningful as possible, being of benefit to others, etc. Don't view this as a contradiction – making right for your end without a future. There is a residual effect of our prior lives on our rebirth. Much like the cults teaching that your current life portends a future life contingent upon a judgment of fulfillment of certain mandates. In our daily lives every action of body, speech and mind that we create lays down a subtle imprint in our mind which has the potential to ripen as future happiness or suffering, depending on whether the action was positive or negative. These imprints remain in the mind until they ripen or until they are purified or cleansed by spiritual practices. This produces the potentiality of the new life. Like our genetic code we are not harkened into existence upon a blank slate. Instead we are endowed with tendencies which we may follow, intuitively. That is our essence.
Now that you know the objective is to live a full life each day in preparation for the new life tomorrow you may want to know “How will this impact my child custody case?” Keep in mind that I said the goal is “improvement of the parent-child relationships.” You may already have an idea of what you think should be done. You may be thinking of what hasn't worked. You may be thinking that it is time to start reading my point-by-point plan for getting to your goal. Slow down a moment – you have the entire day! You can invest a few extra minutes to listen to me ramble on for something that will benefit you for the rest of your lives – all those days that you live a full life.
I'll be candid with you here. I am being verbose because I want for you to be invested in this. You have read this far so at this point you may as well go to the end or you will have wasted past time dedicated to reading this. Onward we march.
I am not going to give you specific actions to take into the court room. I am not even going to connect what I have to say to your child custody case. Likewise I am not about to apologize for dragging you along this far without delivering the goods. I am not going to try to bait and switch you into hiring me to provide specifics because I don't even have time for a new client.[1] Instead I am going to tell you why it is important to die each day and the effect that will have on your child custody case.
When you die each day, each day is a new life. What happened yesterday does not exist. Tomorrow does not exist. You then have the freedom to live in the moment. I'll present an example.
It's a beautiful day. Your child wants to be outside doing something fun and you know it. You want to provide that opportunity, especially considering the frequency with which you and your child can be together. You decide to go to one of those big water parks a ways off. But . . . . you've had some trouble with the car lately. You suspect that the starter is going out. As old as it is you are sure as soon as you replace that, something else is going to go. It's a money sucking black hole and you don't have the bucks to buy a new one and your credit is shot after all the unpaid bills during the divorce while you and the former spouse paid more to argue over them than it would have cost to just pay them off. So . . . you don't go. That is not living life today.
Living life today is finding that you were born with a car and using it. If it breaks down so what. Now you go hiking instead of swimming. So take shoes in addition to flip-flops. Treat that car as if it has never done you wrong and has no plans to do so in the future. Don't take this as freedom from planning or responsibility. Quite to the contrary it demands planning or responsibility. In the current scheme of our expected 75 or so year life we have and will continue to face challenges along the way. That is life. What I advocate is not to focus on and prepare for certain challenges but instead to imbue your future daily lives with the imprint of preparedness. The past is not known, the future is not predicted, but every challenge has the potential to be met.
Have you picked up on where this is going? When you wake up tomorrow to a new life you will have a child who hasn't been a bad child, who hasn't been the source of your frustration, and who hasn't brought great joy to you because that child has not been a part of this life that day. You will have a child that has a clean slate that you can serve that day. I am going to set apart the next sentence for clarity.
That child has a another parent.
This is where I kick you in the gut. When you wake up tomorrow to a new life you will have a parenting partner who hasn't been a bad parent, who hasn't been the source of your frustration, and who hasn't brought great joy to you because that partner has not been a part of this life that day. You will have a partner that has a clean slate that you can serve that day.
Don't discount that the other parent is your partner. Nothing has yet to happen so treat that parent as your partner. If there is parental alienation, high conflict, or hostile aggressive parenting that day then respond in a loving-caring manner. A manner that demonstrates the loving-caring attitude that you have for your child. Not for the sake of the other parent but from the perspective that allowing the other parent to be a better parent is showing loving-caring for your child.
You know what your current instinct when attacked or disrespected is going to be. But don't do that. Respond rationally. Be empathetic. Ask yourself first “How would I have viewed my actions?” and “How could I have responded? Then ask yourself “How could I have negatively viewed my actions?” and “How could I have negatively responded? This can help you to understand why you are being attacked. It will form the basis of your response. Agreeing to selective underlying objections can reduce hostility and promote cooperation.
When the children are returned a half hour late an email like this may be awaiting your arrival at home:
You are a @#$%!&# loser. I hope you know that when your always trying to mess up my plans you are really messing up theres. If you really cared about them as much as you say you do then you would start showing it. Next time you pull this $#!@ I am going to file contempt.
If you noticed the spelling/grammatical errors then kudos to you. Those are there because that is what people do when they boil over. They are reacting from the primal part of the brain – defending against a perceived attack – instead of from the reasoning frontal cortex. Your response could be something like this:
I understand how you could view my tardiness as being intentional. I don't want to cause you stress or make it difficult for you to get the children to bed on time. Unfortunately there was an issue with my car and the children's grandparents came to pick us up and then they wanted to take us to dinner. You know how they get to talking and eating so slow. I apologize for not calling. It would have been more responsibly appropriate for me to call and give you the opportunity to come pick them up.
That may totally catch him or her off guard. It may not win you any points but so what. If you have ever had a boss or coworker who gets on a rant looking for an argument and you keep agreeing, do you notice how that rant eventually runs out of steam? If it bothers you that your kind overture isn't reciprocated then go meditate on that. You can then sleep easy because tomorrow you will have a new life and the life in which you returned the children late no longer exists. Ha! You are off the hook.
Whether that other parent responds positively to your goodwill overtures does not foreclose an improvement in your parent-child relationship. Any effort is better than continuing the ongoing conflict that you know is harmful to the children.
As a person who dies each day and then is reborn the following day you are going to be uplifted by the benefits of the detachment from the experiences that inhibit most people from experiencing forward progression in their relationships. The challenges of a child custody conflict can give you the opportunity to experience the benefits of dying each day. A critical self-examination likely reveals that you are holding onto past hurts and transgressions from your marriage that reveal themselves as painful or hostile feelings when that other parent engages in a particular act. When you view that same act without being primed by the past – as though it was done by a stranger – then the feelings evoked by that act are less likely to be painful or produce hostility. Applying this throughout your everyday life will provide to you an ease by which to approach your usual activities and interactions which becomes self-fulfilling.
It is said that the mark of a spiritual practitioner is to have no regrets at the time of death. If your mind is calm and peaceful and imbued with positive thoughts at the time of death tonight, this will augur well for a happy rebirth tomorrow.
[fn1] If you do want assistance please do apply. The more people I have on my waiting list the more selective I can be about whom I can provide the greatest benefit. I am always available for emergencies where the immediate welfare or custody of a child is in jeopardy.
If you would like assistance improving your relationships around a child custody matter 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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©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Saturday, December 21, 2013
Each Day I Die - Finding Wellness in Child Custody Conflict
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. 
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.
