Wednesday, July 22, 2009

Help for teachers and care-givers to recognize and address divorce related stress in children


By the time they turn 18, approximately 50 to 60 percent of all children in the United States have been affected by divorce (Furstenberg, 1990). Virtually every teacher needs to be familiar with the effects divorce may have on children's classroom behavior. Unlike some other stressors, divorce-related problems (e.g., visitation, child support, parental custody) can be ongoing sources of stress to children, even up to 8 years after the initial separation (Grych & Fincham, 1997). As a result, teachers are likely to have students who are dealing with a variety of divorce-related issues at any one time. Effective teaching of these children requires an understanding of the impact of divorce, a supportive environment, safe channels for children to communicate feelings and problems, instruction on building coping and self-regulation skills, and resources to help parents.

Children, as well as parents, feel the stress and confusion of separation and divorce. Many kids feel angry, sad and frustrated about the prospect of their parents splitting up for good and are uncertain about what life will be like after divorce.  Your ability to communicate successfully with parents and the children will help provide the support children need. Given the right support, children will be able express their feelings, grieve their loss, and emerge from this unsettling time as stronger more resilient people.

Stress is a response to change or conflict. It is usually considered to be negative and damaging. However, not all forms or levels of stress are bad. Competing in sports and achieving in school or at work are examples of positive stressors. Stress becomes negative when the pressures surrounding these and other situations become too great or when several small stressors occur at once, and one can no longer adjust. It is becoming evident that this type of stress overload is taking its toll on children as well as adults.

Two-way communication is essential for a successful partnership between teachers and parents. This means that parents keep teachers informed about important events in their child's home life, and teachers keep parents informed about their child's school activities and behavioural changes. If parents have recently experienced stressful life transitions, such as divorce or remarriage, their attention may be focused on the events in their lives. It may take extra initiative from teachers to obtain information.

Attitudes can foster partnership or create a barrier to partnership. Viewing parent involvement as a continuum, rather than categories (uninvolved vs. involved) helps develop partnerships with parents. This means taking the perspective that all parents are involved to some degree. Some parents are involved at a high level, acting as active partners and educational leaders at home and school, whereas others are involved at lower levels, acting as a recipients of education and support from the school. For parents experiencing transitions such as divorce or remarriage, lower levels of involvement may be all that are possible.

Attitudes are often shaped by our own experiences, professional and personal, in childhood and adulthood. For example, if your parents are divorced or you have experienced a divorce, those experiences may colour your attitudes about divorced parents and their children. If you have worked with a family that had an especially hostile divorce, that experience may affect how you think about divorced parents. It is important to be aware of our attitudes about families. By knowing what our attitudes are, we can ask ourselves where those attitudes come from, and decide whether they are accurate or not. Becoming familiar with research on divorce and families can help in developing informed attitudes.

It is also important to be aware of parents' attitudes, which range from avoiding involvement with school to being overly involved. Most parents fall somewhere in the middle, they are happy to be involved on occasion if they are approached. Parents' attitudes are often influenced by their own experiences with school as a child. Those who had positive experiences at school may be more willing to be involved. Parents who understand the school system in the U.S. and come from similar cultures may be more likely to get involved than parents who are from cultures in which school personnel are viewed as authorities rather than partners. Parent involvement is also greater when parents perceive the school environment as warm, but structured, with clear limits and routines.

Communicating with both parents is essential to helping children cope with a divorce or separation of their parents. Traditionally mothers have managed most of the communication with the other adults in a child's life, such as child care providers, teachers and coaches. As our culture changes and particularly after a divorce, many assume that the communications will continue to be with the mother. However, in most cases, both parents should be actively involved in communicating with other adults in the child's life. Both parents should have equal access to health and school records unless there is legal documentation, such as a protective order, prohibiting access. State law mandates that both parents, regardless of legal custody, have equal access to their children's school records. See IC 20-33-7-2


Try to involving the nonresidential or non-custodial parents [NCP] in school activities. NCP's often feel excluded by institutions and organizations, including schools. Invite NCP's to participate in school activities, programs, and field trips. Involving the NCP's in school activities encourages and supports that parent's involvement in the child's life.

Encourage all parents to monitor their children's school progress. Children's school performance may be affected when then their parents divorce. However, if children continue to achieve in school, they are less likely to develop other problems. Parents may need information about how to help their children succeed in school. Send home a handout at the beginning and middle of the school year offering tips for improving study habits.

Try using a variety of formal and informal methods to communicate with parents going through divorce or separation.

*Parent orientation nights. Offer multiple parent orientation nights at different times and days of the week.
*Develop a system for keeping track of family changes. Collect parent information cards at the beginning of the year. Send them out again mid-year, asking parents to make changes as needed.
*Offer parent-teacher conferences at times convenient for parents. Offer opportunities for divorced parents to have separate conferences. Some divorced parents may be able to attend conferences together, but if there is hostility between parents, it is probably better for them to attend separately.
*Send notes home. Make sure that the nonresidential parent receives notes, unless there is a court order that limits the parent's access. Some teachers make up a weekly packet of information that the parent can pick up. This is more reliable than expecting the child to get the information to both parents.
*Make telephone calls. If possible, make calls to both the residential parent and nonresidential parent. Sending a note home at the start of the year to find out when parents are available for telephone calls may make it easier to reach parents. Call parents to share both positive information and concerns.

In your communications be sensitivity to family diversity that these divorced parents now have. Avoid terms that may be offensive to some families, such as "broken home," or "real parent." Don't assume that individuals in the same family have the same last name.

It may be good to get with both parents to develop a school related parenting plan. This document can details how the parents will respond to school emergencies, where to send notices, who is responsible for signing permission slips and who other significant adults in the child's life are. It will includes the residential and legal custody arrangements as well as the financial responsibilities of each parent for such things as book rental, lunch payments and special fees or field trip costs.

Sole legal custody gives one parent the decision-making rights, responsibilities, and authority related to the health, education and welfare of the child. Joint legal custody gives parents shared decision-making rights, responsibilities, and authority related to the health, education and welfare of the child. Physical custody designates where the child will reside and who provides the care and supervision.

Warning signs
Divorce can have a substantial effect on children's functioning. According to research reviews (Amato & Keith, 1991; Grych & Fincham, 1992, 1997; Kelly, 1993), children of divorce, when compared to children from dual-parent families, exhibit more "acting-out" behaviors (e.g., aggression, conflict with school authorities) as well as maladaptive, internally directed behaviors (e.g., depression, anxiety, and withdrawal). Children of divorce also are more likely to perform less well academically, have a lower academic self-concept (but not lower self-esteem), and are less motivated to achieve. These adjustment difficulties are sometimes directly divorce-related, and sometimes due more to problems in parents lives.

A child’s commitment and stress levels are often controlled by a parent or other influential adult. Children typically welcome such events as birthday parties, field trips, and organized activities, and may not recognize overload. Often a parent has a strong desire that a child participate in sports, or study dance, or take music lessons. The child’s level of enthusiasm may not match the adult’s, and the result, for the child, can be stress. Children also feel pressure from unwelcome events such as divorce, abuse, and peer pressure. These, too, promote stress in a child’s life.

Some children will express their feelings directly. Others, however, may internalize stress and show it through sadness, depression, or withdrawal. Still others exhibit feelings of stress outwardly and begin to misbehave (Ellcind,1988; Schor,1995).

Here are some signs that stress may be having a negative impact on a child:
*The child develops physical symptoms, such as headaches and stomach pains.
*The child seems restless, tired, and agitated.
*The child appears depressed and will not communicate how he or she feels.
*The child seems less interested in an activity that was once very important to him or her, such as baseball or dance class.
*The child’s grades begin to fall, and he or she has less interest than usual in attending classes and doing homework.
*The child exhibits antisocial behavior, such as lying and stealing, forgets or refuses to do chores, and seems more dependent on the parent than in the past.
*The child may express their anger, rage, and resentment with you and your spouse for destroying their sense of normalcy. Angry outbursts that continue or become violent may be signs that they need help coping with their feelings.
*The child may feel anxious when faced with big changes in their lives. This is natural for children. However, if they seem to be worrying endlessly about minor and major situations, or if their anxiety is causing eating and sleeping problems, they may need more support.
*The child's sadness about the family’s new situation is normal. But sadness coupled with a sense of hopelessness and helplessness is likely to become depression. When children feel depressed they may withdraw from their parents or loved ones, neglect their homework, dissociate from friends and discontinue pleasurable activities. Their eating habits may change or they may engage in some form of self-destructive behavior or act out.   
*Trauma in the child is determined by the child’s experience of the event, not simply the event itself. Different children in the same family may have dramatically different reactions to divorce. Trauma may cause depression and anxiety at the time of the separation or years later. It may also reoccur during weekends, holidays or times when the child misses the complete family unit.

Here is a breakdown by age range-

Ages 6 to 8 Years
Between 6 and 8 years, children need individual time with each parent to continue being reassured that they are loved. Fairness becomes an important issue; your child may want to be sure both you and your spouse get the same amount of time with him. Children this age are also interested in issues such as who is to blame or who is at fault. If your child expresses hope of reuniting your family, make sure he spends time with both of you separately to help cement the reality of the situation. Your child's feelings of unhappiness may be expressed as sadness, anger, or aggression. He may have problems with friendships or in school or stress may take the form of physical problems, such as upset stomaches or headaches.

Ages 9 to 12 Years
As children reach this age, they become more involved with activities apart from their parents. When divorced parents reside close to one another, equal time-sharing may work, but preteens may need different schedules to accommodate their changing priorities. School, community interests, and friendships begin to take precedence for children in this age range. Your child may refuse to share time with you and your spouse equally and may try to take sides. Expect this behavior and don't take it personally when it occurs. Warning signs for this age group include peer difficulties, loneliness, depression, anger, or physical symptoms like headaches or stomachaches and learning problems. Role reversals - when a child feels compelled to support or care for an emotionally distraught parent at his own emotional expense - can also arise. This is not a healthy situation for the child. Parents who recognize role reversal in their family need to find ways to get emotional support for themselves and relieve the burden from their child.

Ages 12 to 15 Years
Children in this age group need consistent support from both parents but may not accept equal time-sharing of their living arrangements. They may externalize blame for the divorce to one or both parents and may become controlling by demanding to stay in one place or to switch residences constantly. Depression, moodiness, acting out, poor performance in school, use of alcohol or other drugs, sexual activity, or chronic oppositional behavior can all signal that a teen is having trouble. Regardless of whether such troubles are related to the divorce, they are serious problems that affect a teen's well-being and indicate the need for outside help.

Ages 15 to 18 Years
Teens in this age group may become focused on establishing their independence and on social and school activities, and they may become intolerant of their parents' problems. Although your teen still needs your support, he may also tire of worrying about you. Talking frequently with your teen about his feelings may be helpful. Although teens may want to see their parents happy, they may have mixed feelings about seeing their parents dating other people. They may feel that condoning parental dating would be disloyal to the other parent. Older teens who need help may have behavior problems, exhibit depression, show poor school performance, run away from home, or get into trouble with the law.

Be part of the solution, not the problem. Well-meaning parents and adults can sometimes be the cause of children’s being over-committed at too early an age. Even what may have been a manageable level of commitments may no longer be so for a child experiencing separating parents. Sometimes adults may try to involve children in more activities to keep their mind of the divorce. This can have the opposite effect of what was intended. Some children simply need personal time to adjust to this situation.

If you suspect a child is suffering from stress, evaluate the child’s situation or activities, and work with the child and parents to identify solutions. Children are not developmentally able to handle adult-level stress. Because they cannot think or feel the same ways adults do, it is the adult’s responsibility to help keep children from becoming stressed and overloaded.

It may be up to you to use your ability to communicate with parents and the children that will help provide the support children need. By providing the correct support you may be able to help these children express their feelings, grieve their loss and successfully emerge from this transition in their life.

Contributors to this paper:
Purdue University Extension
University of Missouri Extension
Helpguide.org
Kidshealth.org

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Tuesday, July 21, 2009

Why you should always demand a jury trial

The right to a trial by jury extends to both civil and criminal matters. The jury system is designed as a two part collaborative by citizens to maintain their control over the rule of law. That is, the defendant in a criminal prosecution or either party in a civil suit must demand a jury trial, and, jurors must be willing to be empaneled. Of course the court can compel people to be jurors but a willing venire better supports the principles of our Republic.

The principle of a jury trial was first established in the year 1215 in England when King John signed the Magna Carta. The right to a trial by jury was adopted by our Founding Fathers through the Fifth and Sixth Amendments to the United States Constitution.
In Indiana, the right to a trial by jury is protected by the Bill of Rights of our state constitution.
Article 1 § 13 (a) “In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury...” Article 1 § 20 (a) “In all civil cases, the right of trial by jury shall remain inviolate [undisturbed].”

Jury service represents one of the most important civic responsibilities we have as citizens. When you fulfill your obligation for jury service, you are helping to protect our liberties and to preserve our system of justice.

Would you like to have the power to veto a law just like a governor?  Would you like to have the power that your veto can't be over-ridden?  If so, then you want to be a juror.  This is what is known as jury nullification. The concept of juror nullification is the foundation of rule by the people.  Our government was established by the people and for the people.  Ultimately, we the people, have the last say.  This is why it is so important for everyone to demand jury trials.  This allows the people to exercise their ultimate right; the power to determine the law.

Judges will tell you as a juror that you have the responsibility to determine the facts of the case.  What they rarely explain is that you have the right to determine the law.  That is, you get to decide if you want the law enforced in that situation.

In Indiana it is a criminal offense to tell your child, under the age of 15, to masterbate instead of having sexual intercourse or to wait and have sexual intercourse after you get married. You have likely at one time or another said that some law is stupid and shouldn't be enforced. Your opportunity in challenging that is to demand a jury trial if charged under that offense or to vote for acquittal if serving on a jury hearing such a case.

The importance in demanding a jury trial in every criminal case is that it ensures that only those cases which truly serve the public interest will be prosecuted. Currently about 96% of cases are settled through plea agreement nationwide. The courts are still congested. The remaining 4% of cases do not all go to jury trial, some are dismissed.

My criminal charges result in dismissals because I demand jury trials. I have even gone so far as to demand that a felony charge be reinstated against me after it was dropped so that I could have a jury trial and use the court's time. That case involved an allegation that I had severely abused my child which was completely false. This charge was filed immediately after I started a father's rights group in Boone County Indiana.

The trial was schedule to take place for three days with more time allotted as needed. I had 600 pieces of documentary evidence and over 30 witnesses to present. Without ever going to trial 12 hours, or 1.5 days, was spent on pre-trial hearings. I expected the trial to take at least one week itself. That would mean that my trial alone would take nearly 1.5% of the court's time in the two years it went on. In a court that handles over 1000 cases a year that is just not practical. The prosecutor knew it and that is why the charge was dropped.

This brings me to why you should always demand a jury trial. In a plea agreement you have a 100% chance of being adjudicated guilty. The rate is much lower when jury demands are made. In fact, a study of 18 months of criminal cases filed in Boone County, Indiana during 2005-2006 revealed that less than 6% of cases where a jury trial was demanded resulted in a conviction.

Last week I obtained the trial schedule for September 1, 2009. There are 25 trials scheduled for that day of which 21 are felonies. Three are Class B felonies. Courts here rarely hold more than two criminal jury trials in one week. When they do, other matters such as divorces and other civil cases get pushed back. In reality, the court can hold about one jury trial per week. This is consistent with the common finding that courts can only handle about 1/20 of cases going to trial.

Going on odds alone if every one demands a jury trial you have a 19/20 chance of your case getting dismissed. So then why do so many people opt for a plea agreement. This is due in large part to monetary considerations. Whether you have a public defender or private counsel money is a significant consideration.

Private attorneys do not come cheap. A drawn out jury trial can cost many thousands of dollars. Had mine gone to trial the fees would likely have been about $25,000. Most defendants simply cannot afford that. That leaves using a public defender or going pro se.

In Boone County the public defenders [PD] are private attorneys who operate out of a draw pool for assigned cases. We are not a large enough community to have our own public defenders office with retained attorneys. These attorneys get paid a flat fee depending upon the type of case. Just last week Judge Rebecca McClure told one of these PD I know you have already put more time into this case than what you are getting paid for so I would like to more it along. There is a much greater financial incentive for the PD to take a plea agreement than go to trial.

If you choose to go pro se and represent yourself then only do so with some assistance. Still you have a distinct advantage that those who are represented by attorneys don't; you can flood the court and prosecutor with motions, discovery and other processes that only serve to overwhelm them with paperwork. This is commonly referred to as defense by paper-storm. This is especially effective in misdemeanor cases where there is just no value in putting more effort into prosecuting a misdemeanor case than a murder case.

The other reason that most people take a plea is because of the false assumption that they will get a lighter sentence. I have seen defendants sentenced to the statutory maximum after taking a plea that made no sentencing recommendation. That is stupid. It was the same as the maximum sentence that could have been given if convicted by a jury.

Earlier this year I was involved in advising a defendant and his public defender on a misdemeanor case. The prosecution had offered to let him plead guilty to any one of the seven charges in exchange for the rest being dropped. The agreed upon sentence would be time executed plus one year probation with six months of that on GPS monitoring. I thought that plea offer was a joke.

I was adamant that they reject that plea offer and go to a bench trial since a jury demand had not previously been tendered. I gave them a 95% probability of equal or less than sentencing as I did feel one of the charges would stick and I was familiar with the judge. Fortunately my advice was taken. The defendant was convicted on six of the seven counts and sentenced to six months detention with all the time suspended except the portion already served. He walked out of court that day a free man, no probation, no fines.

In Boone County the first trial of the year in 2006 took four days and resulted in a hung jury. Just last week a jury could not come to a unanimous vote in a child rape case. In a one day trial in 2007 where I advised the defendant and the PD a jury returned an acquittal in under an hour and some members actually apologized to the defendant for what she had to go through. In another 2007 case I advised a defendant to withdraw his guilty pleas and go to trial. He did and was ultimately convicted but was sentenced to less time than called for in the plea agreement. Earlier this year after multiple days of hearings in a murder case, that was headed to what would likely have been a 7-10 day trial, the prosecutor offered a plea agreement to time served and three years probation which was accepted by the defendant.

The courts cannot handle more than 1 out of 20 cases going to a jury trial. Judges do not always hand down sentences greater than those offered in the plea. Jurors do not always convict. Public defenders sometimes get paid more per hour if you take a plea agreement. But, most importantly, our system of representative government and the strength of our republic depends upon jury trials.

If you have the opportunity to demand a jury trial, do it. If you have the opportunity to serve a juror, do it and do it emphatically.

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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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Saturday, July 18, 2009

Why having lobbyists is a good thing


In our highly politically charged society that pits group against group we rarely seek to work as a collective unit but instead seek to see what advantage we can attain over others through legislation. It is in this quest that the roll of the lobbyist gains importance. Of course when things don't go our way we blame "special interest" and find a scapegoat in lobbyist. For years there have been calls for reform that will limit the roll or influence of lobbyist.

Before embarking on a hastily conceived ad hoc approach to political activism it may be best to learn more about lobbying and lobbyist. Often looked upon as secret and mysterious, lobbying gives rise to speculations that add fuel to perceptions that are rarely consistent with its true nature. The result is distrust towards those engaged in lobbying, a totally legitimate occupation according to the National Assembly. The opinion that lobbying should not occur in a democratic society also impairs the overall perception of this activity. In this context, it is not surprising to see people who lobby hesitate to identify themselves as lobbyists. To clarify these notions, it is important to distinguish between lobbying and lobbyists.

Lobbyists use time spent with legislators to explain the goals of the organizations which they represent and the obstacles elected officials face when dealing with issues, to clients. I believe that after you read this you will have a greater appreciation, not only for the work I do as a lobbyist, but, for the valuable roll that lobbyist serve in the legislative process.

Lobbying
Overall, lobbying corresponds to the steps taken by a lobbyist to represent the interests of a lobby, a client, an enterprise or an organization. It concerns oral or written communications aimed at influencing the decisions of a public office holder. In Indiana Lobbying is define as "communicating by any means, or paying others to communicate by any means, with any legislative official with the purpose of influencing any legislative action." IC 2-7-1-9

Lobbyist
Many times, people who communicate with members of a public institution in an attempt to influence a decision are specialized stakeholders called lobbyists. A lobbyist is not a person specializing in public relations; he or she may just as well be a lawyer, an engineer, a urban planner or a geologist, for example.
In essence, a lobbyist's function is to speak on behalf of the lobby, of a client, an enterprise or an organization that he or she represents in order to influence a public office holder.
As representative of a lobby, client, enterprise or organization, a lobbyist must be well informed, not only about the project he is responsible for, but also about the political or administrative structures of each of the authorities his file must go through. Moreover, he must develop intervention strategies and be able to communicate his message efficiently.
In Indiana Lobbyist is defined as "any person who engages in lobbying and in any registration year, receives or expends an aggregate of five hundred dollars ($500) in compensation or expenditures reportable under this article for lobbying, whether the compensation or expenditure is solely for lobbying or the lobbying is incidental to that individual's regular employment." IC 2-7-1-10

In Indiana, where I work as a lobbyist, our state legislators introduce over 2000 bills per year. When Michael Moore paraded around Washington D.C. in an ice cream truck reading the text of The Patriot Act many of the legislators where being exposed to those words for the first time. Senator John Conyers was candid in admitting to Moore that they don't read the bills presented to them.

Legislators are popularly elected, usually for their position on issues, not their skills in reading or writing law. Often times legislators are not familiar with the legal technicalities of the ideas they wish to put into legislation. Even the more simple concept of just identifying the issues is beyond the scope of most legislators.

This year and in the past as I testified at hearings on bills or before study committees I was spontaneously asked by the legislators who wrote passed them what the current law is or how it is applied. This year the House passed a bill by a vote of 99-0 that included provisions adopted from another law that was similar. However, this bill included a provision that judges consider the relationship of both parents with a child which has only lived with one parent. I was the only person to bring to the attention of the General Assembly that this law failed to consider the unique circumstances of paternity that differentiate it from marital relationships. I wrote about that bill here.

Lobbyist serve an essential roll of providing research, analysis and constituent desires to legislators. Lobbyist represent the interest of the organizations or enterprises who have hired them. Many people join organizations for the very purpose of funding the lobbying efforts. One of the largest lobbying groups is the AARP which claims membership of 35 million, over 1/10 of the US population. The AARP spends significant amounts of money to research, write and push legislators to pass laws on behalf of their 35 million members. Our members of Congress would face a logistical impossibility to accommodate communicating with 35 million people instead of the mere hundreds of lobbyist employed by the AARP to push their agenda.

If you have the skill and knowledge to research the topics that your legislators are called upon to debate then please step into the arena and assist. Not every shareholder in a corporation can visit the statehouse on their own behalf. Not every person affected by legislation can visit the statehouse on their own behalf. Not every legislator has time to listen to the concerns of each constituent and discuss legislation with them. Not every legislator has time to read all of the legislation presented to them. Until such time as that can happen then maybe it would be a good idea to appreciate the work that lobbyist are doing on your behalf.


Indiana Shared Parenting



Stuart Showalter


Thursday, July 16, 2009

Man freed from jail after not paying child support


This story is worth reading, not because he is a non-father ordered to pay child support but because he was released from jail after not paying it. Highly unusual!!!


Hatley was ordered to pay support for a child who was not his and then jailed after he was unable to pay. After a year he was released from jail. Here is information on Indiana non support law.


This case exposes some very interesting legal scenarios. The first that I would like to address is the statement by Hatley's attorney, Sarah Geraghty, who stated that this case amounted to "blatant unfairness." This gives me an opportunity to say again what I always do about courts. “Fair is not in a court, it is a place where you find greasy food, stinky animals and amusements rides.”


To first understand how a father or rather, a non-father, could be ordered to pay child support for a child that is not his you need to know the purpose of child support payments. Child support payments are a means of transferring wealth that will not be disturbed except for a showing of of substantial abuse. That is to say as money passes from one persons hands to another the government and others skim a little bit each time and they will not give that up. Utah Senator Greg Bell candidly tells it like it is in saying child support payments are a "huge economic shift" that "may not go to the child".


Courts in nearly every state have upheld rulings that men who are known to not be the fathers can be ordered to pay support. These are a few instances in which support can be based; the man was married to the woman at the time of the child's birth; the man signed a paternity affidavit; the man put himself forward as being the father; the man cohabitated with the mother; the man was the only man known to the court to be having sexual relations with the woman at the time of birth.


To the common person it would seem simple that if you didn't do something you shouldn't pay. If the utilities for yours and the apartment next to you had been combined and you paid someone else's costs for 10 years while they paid none you would be entitled to a refund. Not so in child support cases. Justice Kenneth Bell of the Florida Supreme Court articulated it well in upholding an order for a non-father to pay support. “We find that the balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding.” What Bell is saying is essentially that we are going to make someone pay child support regardless of that persons natural responsibility if, instead, it would mean that no one pays.


Former Clinton County Indiana prosecutor Louis Evans put it to me this way; “You can buy all the food, clothing and everything else for your child but if you still don't pay her that money I will continue to prosecute you.” Eventually, I put it to Evans who ran away from the case. Child support payments are about transferring money not about the best interest of a child.


Similarly, Indiana case law establishes that the “best interest” of the child supersedes the legitimacy of a child support payment order. It is well-established public policy in Indiana that a primary concern of all three branches of Indiana government is the protection of the welfare of children. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind. 1994). The paramount concern of a court in any case involving child support must be focused on the "best interests" of the child. Whitman v. Whitman, 405 N.E.2d 608, 613 (Ind. Ct. App. 1980).


States establish their basis to order child support payments to recover their costs for public assistance. When mothers get custody and then receive public assistance the states go after the purported fathers to recover that cost regardless of ability to pay. The courts find that public policy supports ordering one person who has no liability in the child's birth to make those payments rather than the public at large through public assistance programs. Although child support payment orders are restricted to recovering money for the state they have become common place in most custody proceedings.


Courts are without authority to order child support 'payments' unless the order is established for the state to recover money paid to the mother through public assistance. In 2007 a Marion County Indiana man was acquitted by a jury after he was alleged to have failed to make $122,000 in child support payments. The jury found that he did provide 'support' to his children, not financial payments to the mother. Indiana Supreme Court case law establishes that a man has a duty to 'support' his children but not that this must be in the way of financial payments. The Court in Lambert v Lambert, 2007, cited Haase v. Roehrscheid, 6 Ind. 66, 68 (1854) (“[i]t is the duty of a father to support and educate his minor children”).


Courts have left it to the defrauded fathers to sue the mothers to recover any support payments that were made for a child that is not there's. Essentially what they are saying is if you are a woman and you want to go after any guy for money claiming he is the father we will help, but when it comes time for that defrauded father to get his money back he is on his own because the courts know it will never be collected. Again, child support payments are about the transfer of wealth. If there is no money to transfer then the state won't help a father recover it.


Hatley has experienced what few men have but what many more should; being freed from being imprisoned for not paying for a child that is not his. Unfortunately, until the public demands that their legislators pass laws to protect men from being ordered to pay for something that is not theirs then it will continue.

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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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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Tuesday, July 14, 2009

African-Americans lose the presumption of innocence in criminal trials

Based upon past acts and conviction statistics, the US Supreme Court has ruled that states may now limit the presumption of innocence in criminal trials to whites only. This reversal of hard fought for equal rights has outraged many in the civil rights and legal communities. Well, it would if it was true. I will get back to that story towards the end but before that I want to speak about Shared Parenting.

Often times new terms or concepts are surrounded by misconceptions. We have all heard of the “Patriot Act” but without knowing what is actually in the law you may be under the false impression that it is something that would have actually gained the approval of Patrick Henry. Likewise there are many misconceptions about Shared Parenting and Shared Parenting legislation.

About.com gives this definition of Shared Parenting:
“Shared parenting refers to joint physical custody, where both parents share approximately equal parenting time and are equally recognized by the law as the legal guardians of their children.” This definition should provide readers with a rather clear understanding of the term.

In April of 2007, Michigan State Representative Glenn Steil, Jr. introduced House Bill 4564, which would require shared parenting in all cases except those situation where either parent is deemed unfit, unwilling, or unable to care for his/her children. The bill was referred to the House Family and Children's Services Committee on April 5, 2007.

In January of 2009, Indiana State Senator Dennis Kruse introduced Senate Bill 560, which would require judges to presume that both parents would maintain custody of their children and have nearly equal parenting time unless they were deemed unfit, unwilling, or unable to care for his/her children.

Much confusion about Shared Parenting comes from the differences in application and result. Shared Parenting is a result where parents share in the decision making for their child and also have parenting time with them in a near equal ratio to each other or the time spent with their children pre-separation. Presumptive Shared Parenting is what is being sought as a mandate for judges. That is, judges will be required to put aside prejudices, personal financial interest and assumptions about genders and presume that both parents had equally parented the children prior to separation.

Presumptive Shared Parenting would have a dramatic effect in child custody situations. Judges would be required to order near equal parenting time unless some exceptions were met. The most significant portion of Shared Parenting legislation is the requirement that judges issue Findings of Facts and Conclusions of Law when there is a deviation from the presumption. This will provide a legal and factual basis for a custody order rather than a judge's assumption that 'mothers make better parents'.

Opposition to Presumptive Shared Parenting comes primarily from those parents who abuse children and don't want them having significant time away from that parent or the household where the abuse could then be detected or exposed. Another significant factor in opposition is the financial impact. Unequal division of responsibility for the children often results in a child support payment order. This 'transfer of wealth' is commonly known to not be used for the support of the children and through Title 42 Section 666 of the United States Code judges and prosecutors actually receive Social Security incentive payments for issuing and processing child support payments.

To put presumptive Shared Parenting into perspective I will now get back to what I opened with. In using race and the criminal courts as an example. I hope to bring forth a simple to understand analogy to the gender issues faced by fathers in the civil courts.

Imagine a situation in which two people are arrested for the same crime and are set for trial. One is African-American and the other is white. The jury for the white defendant is given these pattern instruction from the US Seventh Circuit;
“The defendant is presumed to be innocent of [each of] the charge[s]. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty as charged. The government has the burden of proving the guilt of the defendant beyond a reasonable doubt.
This burden of proof stays with the government throughout the case. The defendant is never required to prove his innocence or to produce any evidence at all.”

The jury for the African-American is then given these instructions;
“The defendant is presumed to be guilty of [each of] the charge[s]. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless the defendant presents evidence in the case that convinced you that the defendant is not guilty as charged. The defendant has the burden of proving his innocence.
This burden of proof stays with the defendant throughout the case. The state is never required to prove his guilt or to produce any evidence at all.”

Think of the outrage amongst the civil rights and legal community if that situation were to occur. If you are old enough or have sufficient knowledge of America's past then you will already know that this was the case at one time although not in the literal sense.

There wasn't such an actual jury instruction but there was the perception amongst jurist and jurors that when an African-American was arrested that he probably did it. There were times that a trial was actually seen as an impediment to justice. In 1930, at the Grant County Jail in Marion, Indiana where three young black men were held on charges of killing a white man and raping his girlfriend, a large mob estimated at 2,000 gathered seeking 'justice'. Before they could be tried Thomas Shipp and Abram Smith became the last confirmed lynching victims in the northern states. The Civil Rights Act of 1964 helped to bring about a presumption of racial equality and opportunity.

This is not unlike what occurs during child custody proceedings. Two parents enter the courtroom, one male and the other female. Although considered equal by statute, which says there is no presumption favouring either, that simply is not the case. The bias or prejudice of judges is apparent. It is as though the mother is told that there is a presumption that she is the fit parent and should have custody of the child(ren). The father appears to be on the opposite side having to present evidence to show why he should be considered fit or why the mother isn't.

Presumptive Shared Parenting would do for gender what the Civil Rights Act did for race. Both parents would go into court with the presumption that they are both fit parents for equally sharing custodial responsibilities. Neither would have to prove fitness to have custody. Judges would be required to order joint legal custody and set a physical custody arrangements that would provide nearly equal time with each parent. Although judges may still have prejudices or bias against fathers the change from a general judgment finding, where no reason must be given, to one where Findings of Facts and Conclusions of Law must be articulated by the judge would quell those biased rulings.

If you don't object to people walking into the courtroom and being considered entitled to equal due process based upon race then you shouldn't object to it based upon gender. Those who oppose equal rights for children and father's are no different than those who would tie a rope over a tree branch.

– Stuart Showalter

Indiana Shared Parenting

Monday, July 13, 2009

Electronic tracking makes its way into family law cases

''We are moving into a world where your location is going to be known at all times by some electronic device,'' said Larry Smarr, director of the California Institute for Telecommunications and Information Technology. ''It's inevitable. So we should be talking about its consequences before it's too late.''

Today I am going to address issues of electronic tracking of your whereabouts and what steps you should take to protect yourself. Electronic tracking comes in many formats and can be readily accessed by the government or other people, often through subpoena or other surreptitious ways.

Cell Phones -

In 2008 Dennis Mullendore went on trial for the alleged shotgun slaying of his estranged wife along a stretch of Interstate 865 in the southern portion of Boone County. During the trial the prosecution called as a witness a representative of Sprint cellular service who testified as to the technical capabilities of cellular phones and towers to track the location of the phone.

Essentially a cell phone tower emits and receives signals in three directions covering an approximate 120 degree range each. The witness testified that when there are overlapping coverage areas the cellular phone will attach itself to the strongest signal. Cell phone towers have a range of approximately 5 miles. Thus, through accessing the records of the tower activity it can be determined where a cell phone is located to within just a few miles such as a three mile stretch of interstate.

If the phone can connect to one antenna, it can calculate a very rough approximation of the user’s position to within a few miles. If it gets a signal from two antennas, it can hone in much further, but if it’s in touch with three or more cell sites it can plot almost the exact location by measuring the distance from each site and using a process known as “triangulation” to find the users within a pretty close range.

Ultimately, Mullendore's contention that he was not in the area and therefore could not have been the one who either drove the vehicle or was the passenger in the vehicle was not persuasive to the jury and Mullendore was convicted of First Degree Murder. With the new FCC's wireless 911 rules pinpointing your exact location will now be commonplace. The question isn’t whether you can be found, but how that information will be used and who will have access to it.

When the system is fully implemented, 911 operators will know your longitude and latitude, which is a good thing if you need help and can’t report your exact location. However there seems to be no rule limiting that technology for emergency services only. In fact, there are numerous commercial services that are already offering this E911 location technology.

While there are benefits to these technologies, there are also dangers. My reason for bringing this to your attention is not to help you plan or escape from a murder scene undetected. I want to focus on issues on how this tracking technology is related to family law courts. In child custody or support proceedings there could be issues raised as to allegations of ones whereabouts whether visiting a bar or doing additional work on a farm. In a highly contentious custody proceeding a lawyer could seek cell phone records to show a parties whereabouts. A GPS map could detail exactly where and when you were at particular locations. Arguments can be made as to which parent is selecting the safest driving routes or times with children which is in their best interest.

Do not be assuaged that simply carrying the cell phone turned off keeps you from being tracked. The government has technology that allows your receiver on a cell phone to stay open even when your phone is 'disconnected'. This allows them to listen to the ambient sound around your phone including any conversations you may be having in person. The best way to avoid having your phone track you is through not carrying it. Alternatively the phone should be carried without the battery in it. This is just one technology and one reason why cell phones should not be carried on your person.

GPS car tracker
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This device, which has a self-contained power unit or can be connected to your vehicle's power source, is added primarily as a safety device and is part of the internal operating system of the vehicle. A GPS car tracker can let you know where your car is, the direction of travel and the speed of travel. One of the main reasons that people install these is to lower their insurance premiums. Insurance companies are impressed by only one thing: lowering their risk. A GPS car tracker does just that, so you will be able to realize a deduction in your premiums.

A record is made of all movements of the GPS device. This provides an additional benefit. If you are involved in a collision the GPS data could be used to show the exact movements of your vehicle prior to the collision. These records could also show if you were at a location you claimed not to be or could imply that you were not where you said you were. All it takes to get these records is a simple subpoena to the record holder; your service provider.

In addition to the professionally installed devices are those that are placed somewhere on the exterior of the vehicle and used by someone whom you may not want knowing your whereabouts. This includes ex spouses, stalkers, pedophiles or any other people whom for whatever reason want to know when and where you are.

RFID -

Radio frequency identification chips went through a period of testing on cats and dogs early in the first part of this decade. After successful test on animals they are now being installed in humans. Five years ago Florida-based Applied Digital Solutions received FDA approval to start marketing the chip for use as a medical record storing device. Just as in science-fiction movies the rice grain sized device is installed just under the skin. As is passes by a reader the data is read from it.

Although more limited in scope the RFID can also be used to track your location when passing by a reader. As time passes more employers are requiring RFID chips to replace name badges and key cards for access to offices. The opportunities for misuse of this technology probably exceed that of the others as data may also be added to this chip without your knowledge.

For more on RFID please read this article.

Like cell phones, other technologies such as laptop PCs, PDAs and Internet phones can track your location through GPS technology. When in possession of any of these electronic technologies I hope you will keep in mind how they can be used against you and that you will take some precautions against having that happen.

When traveling batteries should be removed from cell phones and any other wireless devices including laptop computers with built-in wireless cards. GPS devices should not be used on your vehicle. If you have one you should remove it although in some vehicles this may require replacing the wiring harness if it is integrated into the electrical system. In the alternative you can use lead to block signals. A lead-lined box that your devices can be placed into while traveling would be sufficient to maintain your privacy and keep electronic snoops and hackers from knowing your movements.

Anyone who has been regularly involved in child custody proceedings knows that there are parties who will go to any length to challenge the other. Electronic tracking devices can be used to show where the children are, what time they return to the house, did you drive through a gang infested neighborhood, were you actually at the park with the children and many other situations that can be used against you in court.

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Make a suggestion for me to write about.


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.

View Stuart Showalter's profile on LinkedIn



Subscribe to my child custody updates

* indicates required
©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.