In my last posting I elucidated formulating a response to a report of child abuse or neglect. Like there, when confronted with a Motion to Restrict, Terminate or have Supervised Parenting Time a response should be formulated while in a calm, rational state of mind. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Step one is to always stay calm. Easier said than done you may think. But think of it this way. Your child has not just fallen into a river. There is no need to activate your limbic system, increase your heart rate, cut off blood to the intestines and rush to aid your child. When you get the Motion the court is a stop light and you are sitting there in neutral waiting. It’s going to be a long light. You are wasting energy and will burn yourself out if you sit there with the pedal to the floor at 6000 RPMs. Instead, you want to shift your response from originating in the Amygdala [emotional] to the Cerebral Cortex [logical thinking].
Once you have settled yourself somewhere on the mental spectrum between pensive thought and nirvana, review the allegations. Next review the relevant statutory provisions. The court is statutorily bound when considering restricting parenting time. Also, familiarize yourself with the Indiana Trial Rules. Particularly TR52(a) - Findings and Conclusions.[fn1]
In the case at hand the attorney for Mother filed the Motion concurrent with the ongoing CPS investigation. In Mother’s purported June 20, 2019 motion to cease parenting time or for supervised parenting time, she alleges, among other things, that father failed to cooperate with the CPS investigation. She bases her motion upon allegations made to CPS and that “Your children are afraid of you and do not want to go to your house.”
Mother fails to grasp the meaning of the term “cooperate” though. Father voluntarily met with the CPS caseworker assigned to investigate the malicious allegations. However, he did first question the caseworker as to who made the report and what could be done against that person for making a false report. The caseworker told Father that she could not disclose who made the report but attorney Niehaus later confirmed that it was the children’s pediatrician Dr. Meredith Potrzebowski, a member of Community Physicians Network. It was her practice to which Father made a complaint to the Medical Licensing Board of Indiana last year for failing to comply with statutory requirements relating to the children’s medical records.
On Friday June 21, 2019 Father spoke with Shannon Pickering at DCS who is the supervisor of Channing Reed, the case worker who did the investigation. Pickering stated to Father that this case will be closed on Wednesday June 26, 2019 as “unsubstantiated.”
Mother’s Motion was based upon two prongs. The first, she alleges that the children do not want to go to Father’s house. The Indiana Parenting Time Guidelines [IPTG] at Section I(C)(1) states that the children should not be allowed to decide parenting time. This is because it can put them in the middle of conflict. The Commentary to this section specifically states that parenting time may not be justifiably denied because, “The child unjustifiably hesitates or refuses to go.” Mother has unilaterally terminated Father’s parenting time and also insists that Father enroll in a parenting class before parenting time may resume. The same Commentary additionally provides that parenting time may not be justifiably denied because, “The other parent failed to meet preconditions established by the custodial parent.”
Her second basis for her Motion is the unsubstantiated abuse and neglect allegations apparently made by the children’s pediatrician in retaliation for Father’s complaint against her last year. These unsubstantiated allegations do not rise to the level of that which would clearly show that Father’s continued parenting time would endanger the children. That is the standard for restricting parenting time. I will repeat it - would clearly show that Father’s continued parenting time would endanger the children.
Restriction of parenting time is governed by Indiana Code 31-17-4-1(a), which provides: A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s physical health or significantly impair the child’s emotional development. Even though the statute uses the word “might,” the Indiana Court of Appeals has previously interpreted the statute’s language to mean that a trial court may not restrict parenting time unless that parenting time “would” endanger the child’s physical health or emotional development.
D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009).
Note that, under this statutory framework, parenting time may not be restricted until “after a hearing”.
In making a ruling on this matter a court must make a specific finding. That is, a general decision finding in favour of the Movant [person seeking to restrict parenting time] is not acceptable. "By 'its plain language,' [the statute] requires a court to make a specific finding 'of physical endangerment or emotional impairment prior to placing a restriction on the noncustodial parent's visitation.'" Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003) (interpreting Ind. Code § 31-14-14-1) (quoting In re Paternity of V.A.M.C., 768 N.E.2d 990, 1001 (Ind. Ct. App. 2002).
In all parenting time hearings I suggest that parties request TR52(a) - Findings and Conclusions. What this does is give the parties an opportunity to brief the court on the facts and law of the hearing. It also creates a lower standard for a reviewing court [fn2] to reverse the judgment unlike the general judgment standard[fn3] which requires deference to the trial court and must be supported on any theory.
Mother has, by basing her motion upon allegations which were found by CPS to be “unsubstantiated”, clearly failed to demonstrate a prima facia showing that continuing Father’s parenting time “might” or, more importantly, “would” endanger the children’s physical health or emotional development.
Finally, I note that Father did not receive a copy of the purported filing by Mother but was only given a synopsis from her by email in which she sought to amicably reach a settlement agreement prior to hearing. I doubt that any agreement will happen.
For all of these reasons it is apparent to me that Mother’s motion will be denied by the court without hearing. Father plans to file a response soon as he calmly reviews the sparse information that was given to him and marshals relevant evidence.
Footnotes
[1] Rule 52. Findings by the Court
(A) Effect. In the case of issues tried upon the facts without a jury or with an advisory jury, the court shall determine the facts and judgment shall be entered thereon pursuant to Rule 58. Upon its own motion, or the written request of any party filed with the court prior to the admission of evidence, the court in all actions tried upon the facts without a jury or with an advisory jury (except as provided in Rule 39[D]) shall find the facts specially and state its conclusions thereon. The court shall make special findings of fact without request
(1) in granting or refusing preliminary injunctions;
(2) in any review of actions by an administrative agency; and
(3) in any other case provided by these rules or by statute.
On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, and answers to questions or interrogatories submitted to the jury shall be considered as findings of the court to the extent that the court adopts them. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions appear therein. Findings of fact are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(B) (dismissal) and 59(J) (motion to correct errors).
[2] Where the trial court enters findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled. First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2011), trans. denied. In deference to the trial court’s proximity to the issues, we disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Id. Challengers must establish that the trial court’s findings are clearly erroneous. Id. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. Id. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Id. Additionally, a judgment is erroneous under Indiana Trial Rule 52, if it relies on an incorrect legal standard. Id. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions. Id.
[3] Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.” Trust No. 6011, Lake Cty. Trust Co. v. Heil’s Haven Cond. Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind. Ct. App. 2012).
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Tuesday, June 25, 2019
Motion to Restrict, Terminate or have Supervised Parenting Time - Indiana Code 31-17-4-1(a)
Friday, May 5, 2017
Why some Parents Should be Non Custodial Parents
On my business card is the statement, "Child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours." This is the axiom to which I hold and is why I provide behavioural therapy designed to strengthen the parent-child relationship, mitigate conflict between parents, and demonstrate parental fitness to judicial officers. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In over ten years of doing this I have had the opportunity to encounter many parents and serve the needs of quite a few. As the motivations of parents seeking my help are quite broad and the requests far exceed my availability I first require the completion of an application for services. On the application I ask for the contact information of a person making a referral. I do this so that an attorney, other MHP, or professional who has had an opportunity to interact with this parent can attest to his or her credibility. This is followed by an extensive questionnaire and then an initial interview. Few people make it past the application process.
The most common basis for not providing services is a parent's failure to complete the application process. Then there are those who are not motivated to serve the best interest of their child but are instead seeking an additional resource whom can assist in their war with the other parent. Some are so hostile and self-centered that they clearly should not be a custodial parent and supervised parenting time may be appropriate. It is this type of person which is my focus in this posting.
The Indiana Code[fn1] provides that judicial officers consider what is commonly referred to as "the eight factors" when making child custody decisions. Those are;
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
In addition to these factors there is another which I have found through my discussions with them that most judges include. This is the general demeanor or personality of a parent.
Parents who demonstrate hostility in any forum, contemptuousness for the court or its processes, score keeping, or a generally negative attitude are viewed with disfavour by the court. What I intend in saying score keeping is those parents who measure financial outlays, transgressions, and calculate parenting time methodically without giving consideration to the welfare of the child.
In one case I saw a parent come into court after filing a Motion for Rule to Show Cause alleging among other things that the custodial parent had failed to provide clothing with the child[fn2] when sending the child for parenting time with the NCP. The judge was not pleased and did not find the custodial parent in contempt. While technically a violation of the Indiana Parenting Time Guidelines and subsequently the court's order when incorporated it amounted to petty score keeping.
In another instance a parent filed for a modification of custody based nearly entirely upon unfavourable behaviours by the custodial parent. Inclusive in the motion were allegations relating back to marital infidelity and other acts violating societal norms. What this father failed to do was demonstrate what had changed since the last custody order was issued and, more importantly, what he had done to improve himself and the opportunities he could provide for the child. What she did bad didn't make him better and again that type of attack is looked upon with disfavour.
As for an example of hostility I have the resource of my Facebook page and the contributions from Tami Sensmeier. Her comments were left under posts which I had made. Here they are;
Tami Sensmeier who gives a shit you two faces bastard
Tami Sensmeier yeah, ur full of shit, thatks for calling me back asshole
And from 04 May 2017 - Tami Sensmeier shut the fuck up shitbag, thanks for NEVER CALLING ME after ive left your sorry ass 15,000 messages
These comments are available to the public. I have no privacy restrictions on my page and my friends list is largely populated by parents involved in child custody cases. Sometimes both parents access my page.
Now doubt those are the ravings of a hostile person. I never received an application from her. Thus, there was no basis for me to call. Imaging having this person as a parent. What does the child of this person endure when he or she doesn't perform a task when requested. Imagine what a judge would think when he or she sees it. In a child custody proceeding it is relevant [see factor 6]. I long ago wrote about Social Networking sites making their way into the Courtroom and cautioned parents about what they post.
Whether a behaviour is directed to or involves the child is of no moment when a judicial officer is developing an opinion about the personality of a parent and the impact it may have upon a child. A judge seeing the words of Tami Sensmeier would rightfully conclude that this is a parent who is likely to berate a child and have a negative impact upon the child's emotional development and well-being. So I say it again; Child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours.
notes
1] Indiana Code - Paternity 31-14-13-2; Divorce 31-17-2-8
2] IPTG Section I(B)(3)
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Thursday, April 17, 2014
Father gains custody of Mother's child not of the marriage - Indiana Court of Appeals
The Indiana Court of Appeals today issued a Published opinion affirming a trial court's grant of custody of her child born prior to marriage[fn1] to her later former husband along with their child from their marriage. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The basis of the custody order came upon Father's emergency petition for custody alleging Mother's incapacity from Huntington's Disease and the effect it is having on her parenting and care of the children. Following a hearing in which the parents, Mother's medical practitioner, and child through an in-camera interview provided testimony the Court made these relevant findings when transferring custody of the children to Father subject to Mother's supervised parenting time.
1] The Court finds that an emergency exists based upon the present incapacity of Mothert to provide care and supervision for the children. The Court’s determination of Mother's incapacity is based upon the medical opinion of her physician.
2] In addition, the Court finds that the report of Mother's physician is supported by the testimony of Father, and during the Court’s in camera interview with child, and by Mother's testimony as well as her behavior in court.
3] The Court finds that Mother relies upon child to fulfill many parental functions, and that this contrary [sic] to child's best interests, as she is saddened and frustrated by the loss of her childhood. The Court further finds that Mother has struck and shoved child, and has consistently and pervasively denied the children parenting time with Father.
4] The Court notes that father is not the biological or legal father of child. Nevertheless, Father has acted in the capacity of the child’s father with Mother's encouragement and consent for many years, and the Dissolution Decree grants Father parenting time rights to child.
5] The Court finds the above facts to constitute a substantial change in one (1) or more of the factors that the court may consider under I.C. 31-17-2-8.5, and finds that modification of custody is in the best interests of both children.
6] Father shall have primary physical custody of both children immediately, subject to parenting time with Mother, which at this time shall be supervised by her sister . . . or such other relatives as agreed, or, if the sister is unable or unwilling to provide said supervision, parenting time shall only be at Family House or some other comparable facility close to Mother's home, at Father's expense.
Mother sought to have the trail court reverse the judgment.[fn2] She argued that she is entitled to relief from the judgment because father had no legal right to pursue custody of Child and the trial court was therefore not permitted to hear the issue. The appellate court disagreed for several reasons. First, although neither the parties nor the trial court specifically referenced this statute in the proceedings, Indiana Code section 31-17-2-25 allows for emergency placement of a child with a person other than a parent. Mother also pointed out, “child” for purposes of the dissolution statutes is defined as “a child or children of both parties to the marriage.”[fn3] However, a trial court adjudicating a dissolution may award custody of a child to a natural or adoptive parent of the child or to a de facto custodian.[fn4] A de facto custodian is defined in part as “a person who has been the primary caregiver for, and financial support of, a child who has resided with the person for at least . . . one (1) year if the child is at least three (3) years of age . . . .” Ind. Code § 31-9-2-35.5. Pursuant to this statute, the Indiana Court of Appeals has prior held that a trial court could determine in a dissolution action whether the husband was entitled to custody of a child not born of the marriage.[fn5]
Thus, the trial court not only had subject matter jurisdiction over the child custody determination for the child of the marriage, but also over the child custody determination involving a third party outside the marriage – Mother's prior born child. Moreover, Mother raised no issue as to the trial court’s personal jurisdiction over the parties. The trial court therefore possessed the two forms of jurisdiction required to render a valid judgment.
Based upon the foregoing and the best interest of the children the trial court's denial of Mother's motion for relief from judgment and return of custody of the children to her was properly denied.
notes
[1] No mention is made in the record of the identity or whereabouts of child’s biological father. The appeals court noted that they might have reached a different conclusion if Child's biological father had filed the motion for relief from judgment alleging a due
process violation in the proceedings which granted custody to a third party with no notice to or an opportunity for him to be heard.
[2] On April 26, 2013, Mother filed a Petition for Modification of custody alleging that
she exercised parenting time in January 2013 and Father had not thereafter complied with the parenting time order; that the emergency alleged by Father had passed and/or stabilized and custody of the children should be returned to Mother; and that if Father desired a permanent change of custody, he should be required to follow the statutory procedure for such modification. Mother also filed a Motion Pursuant to Trial Rule 60 seeking to declare the trial court’s order of July 26, 2012, and all subsequent orders relating to her child void.
[3] Ind. Code § 31-9-2-13(a).
[4] In re Custody of G.J., 796 N.E.2d 756, 762 (Ind. Ct. App. 2003), trans. denied.
[5] Nunn v. Nunn, 791 N.E.2d 779, 784 (Ind. Ct. App. 2003).
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.
