Stuart Showalter is a child custody policy advisor to Indiana state policy makers as well as attorneys on child custody cases. For parents he offers child custody based life coaching to help them maintain control of their lives, increase their fitness as parents and manage their litigation so they can truly serve the best interest of their children. He provides this Law Blog as free opinion on various issues. Reader submissions of topics are welcomed. Send to Stuart@StuartShowalter.com
Indiana Senate Bill 0272, authored by Senator Head, had its first reading on 07 January 2009. Senator Merritt was added as the second author and Senator Arnold was added as coauthor, both, on 12 January 2009. This bill would enhance the penalties for custody interference lasting greater than 180 days to a Class D felony. As with any law though it is only as good as the enforcement. We all know that rarely does a court impose a penalty when a father shows up to get the children for visitation and gets told, “Sorry, you can't have them I have plans this weekend.”
In reading the language of the current statute it is somewhat one-sided to begin with. The first section has to do with a parent concealing by removing the child from the child's state of residence. This would be the state of the custodial parent. This is already a felony. So, a Non-Custodial Parent living out of state keeping the child at his house would be subject to a greater penalty than the CP doing the same thing.
State Representative Cleo Duncan introduced an amendment to IC 35-42-3-4, written by Ripley County Deputy Prosecutor Lynn Fledderman, which was adopted into law. This added a provision to prosecute parents who didn't return a child from visitation. Parents not allowing visitation should be subject to the same penalty.
I have known of many fathers who have been denied visitation with their children, some going on years. This is currently a crime as a Class C misdemeanor. I doubt that raising this to a Class D felony will result in any additional enforcement. I find it more likely though that a parent who has had custody taken away and doesn't return the children will find himself the subject of a prosecution which could become a felony if this bill is adopted.
In California it is a felony to interfere with custody for any period of time. If you have the children for the weekend and can't return them on-time for some reason, be it a car wreck, lost track of time or decided to stay an extra day in Disneyworld, you had better notify the other parent and just to be safe the local police also. Likewise, if the other parent is going to pick-up the children for visitation you better be there. Even if you just earned that the other parent's brother, who has been staying at the home, got arrested for cooking meth you had better call the police before not returning the children.
California's law may seem a bit extreme but only so in the context of a world where no one takes responsibility any longer. There is no great difficulty in finding a telephone and notifying someone. There may be the rare circumstance where you broke your leg hiking through a forest preserve and there is not cell towers within 20 miles. Barring that though it is as simple as making a phone call to the parent, police or an attorney.
Although this amendment could be used to pursue greater punishment against parents who do not allow visitation to take place it is very unlikely as most would just allow one visitation just shy of 180 days. Indiana does not need one more tid-bit of legislation that won't be enforced except against only a NCP who abducts the children. We need real legislation with teeth. We need to start with the presumption that both parents are entitled to custody.
Today I want to speak on the subject of selecting an attorney.
One of the most widely used methods of selecting an attorney is the phone book. It shows too. All you need do is look who is on the cover, the spine and has the largest ads. The Internet is becoming a more common venue for selecting an attorney however. The Google ad boxes are filled with their names and their website usually return near the top on any search you are likely making.
Accessing their websites allows you to usually find out much more about your prospective attorney than a simple phone call in which you will likely only speak to a secretary or paralegal anyway. There are also numerous other resources on the web that can help you learn about attorneys. The first site you will visit is the Indiana Supreme Court's Disciplinary Commission to see if any complaints have been filed against the attorney and any disciplinary actions by the Commission.
Other web resources include discussion forums and newspaper reports. Do a search for the name of the attorney including the state. Then narrow your search for specific topics you are interested in. Add “best I ever used”, “ripped me off”, “lost my case”, “got custody of my child” and so forth. This should allow you to find what others who have used this attorney are saying.
The attorney you select to work for you is going to be your attorney. This is going to be the person who represents you. Your attorney is an extension of you. When you chose a new car you want something that fits you, that represents who you are and you take a few for a test drive before buying one. This is the same way you should approach hiring an attorney. You are passionate about your case and your attorney should be also.
The type of case you have will also dictate what attorney you will use. The most advertised are personal injury attorneys and those who represent drunk drivers. Family law is also a common area of practice as is criminal defense. I believe that there are times when a general practice attorney may be appropriate just as with a doctor. However, there are other times that you would want a specialist. If you get audited by the IRS you will want a tax attorney. If you are involved in a large land acquisition and a development corporation then you will want a corporate attorney with knowledge of real estate.
Most of you reading this are involved in some type of family law case. You may be facing a criminal charge of non support of a dependent, just received a complaint for divorce, are fighting a custody battle or are seeking a modification of court ordered child support payments after losing your job. To many attorneys these cases are just the bread and butter of their industry. They have no personal stake in the results. There is nothing that compares to your interest here, especially in a custody case. You must find an attorney that can empathize with you and is passionate about what you believe in and are going through.
I have helped many people with their attorneys either in the selections process or during the progression of their case. On thing that I find myself doing more than anything else is making sure that the clients' attorney is being an advocate for him or her. More so than working on making sure that all argument and strategy has been vetted is making sure that the attorney is eagerly seeking to ensure that every option has been considered and that new concepts are never overlooked.
On the Boone County Child Advocates website we have now added a judges and attorneys page with member submitted content about their experiences with these people. We invite you to submit a brief synopsis of your experiences with judges and attorneys. Please click on the BCCA banner below to go to this page.
No one will be more passionate about your case than you. For this reason you may want to represent yourself. I will speak about that next week. But for now, unless you have significant experience and knowledge of the law then you will want to use an attorney. Your attorney must be an extension of you not just someone to hold your hand. If you select an attorney and he or she doesn't fit then you need to move on. There is far more riding on this than just going with what stands out in the phonebook.
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.
One thing that I often get asked about is Child Support Payment Orders and college education. Our Indiana Supreme Court has determined that dissolution of marriage provides parents with the resources to fully fund a child's college education. I was under the impression that split families incurred greater expenses and actually had less money available to pay for their children's college education but what do I know. I don't get paid obscene amounts of money to sit in the Statehouse and handout opinions instead of participating in the real world where you have to work for what you have.
Today I am examining the case of PATRICIA SUE BECK v MARK ALLEN BECK Cause No. 76A03-0807-CV-341. This is an appeal from the Steuben Superior Court where the Honorable William C. Fee, Judge, presided at the trial court level under Cause No. 76D01-0511-DR-377. This is an unpublished opinion issued on 29 December 2008. Judge Fee is a member of the Supreme Court Child Support Committee and should know child support law better than your typical family court judge.
STATEMENT OF THE CASE: Appellant-Petitioner, Patricia Sue Beck (Patricia), appeals the trial court’s judgment ordering Appellee-Respondent, Mark Allen Beck (Mark), to pay only $2,471.32 of their daughter, K.B.’s, college expenses. We affirm.
ISSUE: Patricia presents one issue for our review, which we restate as: Whether the trial court erred in applying the college expenses provision of the parties’ property settlement agreement.
It is important to first note that under Indiana Code § 31-16-6-6(a)(1), a court may order payment for post-secondary educational costs continuing past the time the child reaches age twenty-one. Martin v. Martin, 495 N.E.2d 523 (Ind. 1986). So for everyone who asks about support ending at age 21 there is an answer for you. In additional to the educational cost, health care cost may also be assessed against parents although case law conflicts on this. In Schueneman v. Schueneman, 591 N.E.2d 603 (Ind. Ct. App. 1992), the court held that it was within a trial court’s discretion to include payments for health insurance in a post-secondary educational order, even if such payments continue beyond the child’s twenty-first birthday. However, later in Sebastian v. Sebastian, 798 N.E.2d 224 (Ind. Ct. App. 2003), the court found that “[a]ny medical and dental expenses are part of support and terminate at age twenty-one.”
In January 2006 the parties had agreed to a property settlement in their dissolution action wherein K.B. would pay 1/3 of her college expenses. Of the remainder Mark would pay 59% and Patricia would pay 41%. K.B. Had already completed a significant amount of credits when the settlement was tendered.
The relevant portion of the agreement reads, “The parties agree that their minor daughter, [K.B.], is currently enrolled in college.” That “college expenses” includes “tuition, room and board, books, lab fees, supplies, and student activity fees associated with her college education.”
K.B. incurred $6,283.00 in college expenses for the spring semester of 2006. After the trial court entered its dissolution decree, K.B. did not incur any further expenses. She signed up for classes for the fall of 2006, but she eventually withdrew and was not charged. From 2003 to 2006, K.B. incurred approximately $72,000.00 in student loan debt.
Later in the year Patricia filed a Motion for Contempt against Mark alleging he had failed to pay his portion of K.B. College expenses. The trial court found that K.B. had “prepaid” $6,283.00 in expenses “at the time of (or just days prior to) the execution of the Property Settlement Agreement and entry of the Final Decree” and had not incurred any additional expenses since that time, the trial court ordered Mark to pay $2,471.32 which is 59% of two-thirds of $6,283. Furthermore, because Patricia “has signed a student loan used by [K.B] pay the college billing and is paying the monthly payment on that loan,” the trial court ordered Mark to pay the money directly to Patricia. Patricia filed a motion to correct error, which the trial court denied.
In her appeal Patricia contends that the trial court erred in not applying the settlement agreement retroactively for the purpose of getting Mark to pay her 59% of 2/3's of $72,000. However, since the agreement applied to K.B.'s current college expenses it would require the court to rewrite the agreement which it may not do. This is addressed in Shorter v. Shorter, 851 N.E.2d 378, 382-83 (Ind. Ct. App. 2006).
The Court of Appeals found that it would be illogical to apply the agreement to the previously incurred college expenses. This is the portion that I found most interesting and wanted to pass along to you. Construing the college expenses provision to require Patricia and Mark to pay K.B.’s previously-incurred expenses would make no sense: those expenses have already been paid through K.B.’s scholarships and student loans. To the extent that Patricia argues that the parties were agreeing to pay a portion of K.B.’s existing student loans in addition to a portion of her future college expenses the court found two problems. First, student loans are not “college expenses.” Student loans are used to pay college expenses. The college expenses provision says nothing about the payment of student loans. Second, and more importantly, if Patricia and Mark had considered K.B.’s existing student loans to be their own personal debt, the dollar amount was easily ascertainable and could have been listed in the “Debts” section of Exhibit A to the property settlement agreement, just like the parties’ other debts. It was not.
So, in writing agreements that include college educational expenses litigators and attorneys must be aware of the language used and make particular stipulation as to exactly what is included.
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.
House Bill 1044, introduced on 07 January 2009, is sponsored by Representative Phyllis Pond of Fort Wayne. Representative Pond is a strong supporter of Shared Parenting and sits on the Indiana Child Support and Custody Committee.
HB1044 provides that in actions for child custody a judge is to presume that both parents are fit to have the right to make the legal decisions regarding the upbringing of their children. This includes medical care decisions, education and religious training.
This bill has been introduced in past sessions and has been defeated in committee. Feminist groups have strongly opposed any legislation that would cut away from the substantially disproportionate findings by Indiana courts that generally only women are qualified to make rational decisions regarding the care and upbringing of children.
Another strong supporter of Shared Parenting, Cindy Noe, who represents portions of Boone County would become the Chair of the Indiana Child Support and Custody Committee if the Republicans were to win a majority in the Indiana House.
This bill only applies to legal custody but if passed would be a start towards providing for the presumption that children should continue in the pre-separation joint physical custody in which they had lived. Our Indiana Supreme Court has recognized and promotes that children need Shared Parenting and that it is in their best interest. However, while that is being put into law and practice in other states Indiana has failed to do so and our children are being neglected because of it.
Stuart Showalter encountered an example of this the week prior to testifying before the Indiana Child Support and Custody Committee. He was in Indianapolis with a concerned father at a CHiNS case where the FCM reported that the only food in the mother's house was what had been spilled on the floor, was infected with bugs and was being eaten by the toddler. That the adolescent girls report that the mother's boyfriend regular observes them in the bathroom, that the oldest child had run away and that all children feared living in that house. Yet this is what a judge had determined was in those "children's best interest".
Had the judge who ordered those children into that neglectful situation instead been instructed, through statute, to submit findings as to why Shared Parenting would not have been best for these children then they likely would not be in that situation.
While other states have passed or debated Shared Parenting bills Indiana still has not although the need for this has clearly been recognized. Generally these statutes require family law judges to presume that both biological parents interacted with, provided for and supported their children. Instead of the parents having to show that they have done this, so custody can be awarded to them, the State would have to find that a parent had not done this before depriving the children of access to that parent.
We support HB1044 and encourage you to contact your legislators and ask them to support HB1044.
Click on the banner for more information and the complete text of HB 1044.
Today is the first day of class in my pursuit of a law degree. I will likely be one of the students with the most knowledge of the law. I didn’t need a law school to get there and you don’t either. You need, as I have, a desire to know the law. Getting my child taken away was desire enough for me.
Once I get my law degree I plan to teach subject specific law seminars. I want to offer low cost solutions for people involved in the judicial system. I no longer want to see people coming to me in the situations they are in because they didn’t know the law and didn’t have assistance. I have been quite successful in helping people with child custody and child support issues after they have gone through a divorce. That is not where I want to be though. That is not where you need to be either.
I would rather have been there holding their hand prior to the filing of the Complaint for a Dissolution of Marriage but as it so happens most people come to me after it has all gone wrong. Appellate work is long and difficult not to mention costly.
What I want to convey to you today is for you to personally gain knowledge of the law. No one should be intimidated by the law. It is a process. Much of it you will never use if you are only needing to adequately represent yourself during a divorce or custody battle. If you were told to build a house you may find that intimidating. However, if you break it down into parts it will seem like a much more manageable task. It may be that you only need to learn about flooring. Then you will study applying tongue and groove hardwoods, marble tile and carpeting.
Law can be the same way for you. With a better understanding of the law you will be able to make sure that if you use an attorney that the attorney is doing everything he or she can to help you. It will also give you the knowledge to make your time more effective with your attorney. If you want to know how to file for divorce on your own and represent yourself through the proceedings it can be done but will take more time and study.
I hope you will come along with me on this journey and open yourself to the opportunities that learning about the law can provide for you and your family.
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Stuart Showalter, Exec. Dir. Boone County Child Advocates
ALBANY, N.Y. -- A group of 30 legal experts and activist have assembled for the sixth Battered Mothers Custody Conference. They say the significance of domestic violence is often overlooked by family courts, lawyers and court-related services. However, those who are on the receiving end of life long protective order barring them from having contact with their children along with those who have lost homes, jobs and their freedom based upon false allegations know a different story.
Battered Mother's Custody Conference Chairwoman Dr. Mo Hannah said, "We're seeing actually, believe it or not, an increase in the number of mothers who are coming out and reporting these kinds of problems with their child custody cases."
Another explanation for the increase could be that, as the reality of false domestic violence allegations as a trial strategy is revealed, courts are becoming reluctant to impose penalties without due process as has been the past, or more likely, current procedure.
Commentary: Once again those who are involved in this cash cow industry fail to acknowledge the truth of Domestic Violence. That is, women actually commit more acts of DV. Organizations such as RADAR are helping to spread the truth. However, it is up to every individual to speak the truth and protect all people from DV regardless of gender. In just a few days there will be a man one step away from the Presidency of the United States who is openly anti-family and will use these DV statistics to continue to destroy families.
I have previously testified about this issue at the Indiana Statehouse. I was the victim of DV for years but never reported it. I was then the victim of false allegations of DV.
It is only awareness and statistics that are going to change this tool that is used to destroy the lives of children by removing a loving, caring, supportive parent from the household. As parents we must teach our children to report acts of DV. I see this on a regular basis around our schools. A boy says something a girl doesn't like and she hits him but rarely is it the other way around. This is done openly and without repercussion. With the proliferation of cell phones any student could easily call 9-1-1 to report the incident. We must teach our children that it is the responsible thing to do.
As victims we need to not sit by quietly. If you are the victim of DV then report it. Don't do like I did and just take the beatings because you are a man. It was only when she pointed a gun at my toddler son and threatened to kill him that I finally took action. But, because I had never reported the incidents, because she made false allegations and because police statistics say women don't batter men, that she got full custody of our child.
There is no shame in reporting that you have been a victim of DV. There is nothing not cool about calling the police when you see another student being hit by his girlfriend. In the larger picture by not doing this you are advocating for the abuse of children through the use of false allegations that are believed because statistics support them.
Another thing we all can do is to provide information to the police, social service agencies and schools in our communities. RADAR has significant amounts of media material for distribution. Please check their website.
Please view the video clip of Capitol News' interview of Dr Mo Hannah.
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.
New Jersey Trial Court Determines that there is a Cause of Action for Parental Alienation.
In a recent trial court opinion issued by the Superior Court in Hudson County, Judge Gallipoli recognized that parents in New Jersey may have a right to collect monetary damages for intentional infliction of emotional distress when their relationships with their children are poisoned by former spouses or even grandparents who partake in alienating behaviors.
In a November 21, 2008 trial court decision, the court recognized the right of one parent to sue another, as well as grandparents, for what is known as the intentional infliction of emotional distress. In this particular case, the father sued the mother and maternal grandparents because they had alleged that the father sexually abused the children. The suit alleges that the ex-wife and her parents began alienating the children from the father during the pre-divorce separation in 2006. It further claims the defendants allegedly told the children, court-appointed psychiatrists and law enforcement officials that the father was a sex addict and had molested the children in the past. It also says the children are afraid to sleep at their father's home because they have been told they are in danger of being sexually abused.
The wife and her parents denied the allegations and argued, in motions to dismiss the suit for failure to state a claim, that the Heart Balm Act had eliminated the cause of action of alienation of affection. They argued that the term "alienating the children" is what the complaint calls the alleged wrong. Judge Gallipoli found that this claim was not a disguised claim for alienation of affections, which was banned in the state in 1935 by what is referred to as the Heart Balm Act.
This is the first time that a New Jersey Court has recognized the ability to bring such a claim. A prior suit was filed in the Morris County Superior Court but dismissed by Judge Rand on the grounds that the suit was nothing more than a disguised claim for alienation of affections. Noting Judge Rand's opinion in his own, Judge Gallipoli respectfully disagreed with Judge Rand's interpretation of the case law in this state and found that a claim existed for these types of behaviors. Since they are both trial court judges, Judge Rand's opinion was not binding upon Judge Gallipoli. Judge Gallipoli noted that the father would have to file an application in the family court seeking relief, however his claims against the maternal grandparents would proceed in the civil division.
Now what remains is how the Appellate Division and, perhaps, the state Supreme Court will view claims such as these. We will be following this case of if it is upheld will be filing similar suits in Indiana and other states.
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.
As a child custody policy advisor I have written and had child custody related legislation passed into law. My counseling of lawyers and appearances as an expert witness have helped them achieve more favorable results for their clients including winning appeals, gaining parenting time, reducing conflict, and mediating agreements. Additionally I made important contributions to the amended Indiana Parenting Time Guidelines that went into effect March 2013 and am currently formulating recommendations for the Indiana Child Support Guidelines which are to be amended this year. For parents I offer child custody based life coaching to help them maintain control of their lives and increase their fitness as parents so they can truly serve the best interest of their children.
