Intention, facts, feelings and all that binds us together is conveyed through language. In the realm of conflict surrounding parental relationships and child custody litigation the appropriate use of language cannot be overstated. Where some see the words 'can' and 'may' as readily interchangeable there are others who find them to be as diametric as 'yes' and 'no'. I have talked to numerous children and adults about their childhood experiences as it related to those words. What I have often found is children, more predominantly males, view the intended abstract representation of 'can't' as a challenge to the limits of the physical world and, more importantly, to their status as an intelligent and capable being rather than permissive. Clearly be told 'you can't go out tonight' activates the mind to conjure the possible methods – wait until the parents are sleeping, the use of bedsheets to rappel from the second level, covertly descending the corridors to a rear exit – to display that what was claimed to be a deficiency in competence would be rebuked. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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A parent who states that 'you may not go out tonight' would likely find a less challenging child and a more cohesive family structure. But is the common adulteration of words in our daily lives of such impact as to justify a careful examination and deliberate effort to correct any misapplications? I believe so.
Words of ubiquitous application or ambiguities torment the conveyance of ideas. In the legal realm, be it writing child custody legislation, drafting parenting time agreements or challenging a contempt action, precision is paramount. It can mean the difference between enforcing your rights and acquiescing to the abandonment of those rights.
Language can also be as important as life and death, literally. Imagine the scenario of patiently waiting to drive your vehicle over a busy crossroad. Your passenger suddenly declares, “It's clear from my side” which provides the same information as “From my side it is clear.” There is a clear distinction between the two messages when efficiency or conservation is applied. The information being sought is whether there is a sufficient lull in the flow of traffic to provide an opportunity to safely pass across the busy boulevard.
The passenger's declaration of “From my side it is clear” informs the driver that there is a sufficient lull in traffic from the right side of the vehicle to make passage safe. The onus is then transferred to the driver to determine whether the same condition exist from the left and if he shall then proceed.
The passenger's declaration of “It's clear from my side” can be reduced to an unambiguous mandate to proceed when efficiency or conservation is applied. The passenger's declaration becomes “It's clear!” when the driver's brain processes enough words to produce a complete thought. “From my side” can be discarded as surplus inconsequential words. But as any driver knows, those consequences could be deadly.
What caught my eye yesterday – the induction to this writing – was a bottle of liquid Drano. The label claims that it “Won't hurt pipes”. I immediately recognized this is a non-statement. It provides no beneficial information about the product to the reasoning mind but can give a feeling of comfort to the emotional or intuitive part of the mind. This is the trickery of marketing.
In the 1980's Johnny Cougar sung about the feeling of teenage love in Hurt so Good. Divorces hurt as does being cut with a knife, but in different ways. We comfort our children when they feel the hurt of being teased. The OED generally describes hurt as receiving a blow, being struck, being damaged, being harmed, injurious, causing the sensation of pain, wounds to the feelings. Hurt can include damage of any kind when portions of its dictionary definition are isolated. Words derive their meaning from usage in conformity with the dictionary applications. Thus, in reviewing our cultural use of hurt we can understand that to be hurt is to have the emotions or body harmed in such a manner as to generally feel the sensation of pain.
Pipes however do not have a central nervous system or the neural network that is cognizant of pain and produces the sensation of being hurt. Thus Drano has made no claim as to whether it could damage your pipes. So, alas, it comes down to this – say what you mean and mean what you say. Or “intend” if you don't seek to regress to the numerical middle of the road.
In matters of child custody petitions, agreements or orders precision of language is important. If your relationship with your child is more important than the rote cut-n-paste process that is often facilitated by the legal community then you should carefully consider the language being used.
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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Sunday, January 20, 2013
Be wary the selection of words
Saturday, January 19, 2013
2013 Indiana Senate Bill 0053 Child Seduction by Mental Health Professionals - Legislation Part 3
When your child who is of the age of consent for sexual relations goes to school we still expect that he or she is not going to be engaged in sexual activity with school personnel. It would be a crime for those adults to engage our children in sexual activity even though an adult outside of the school could. It is such because school personnel are assumed to be able to exert some influence or control over our children that could be used to manipulate them into a sexual relationship in which they otherwise would not engage.
Senator Phil Boots has introduced SB0053 to add Mental Health Professionals [MHP] to the list of other persons to which the child seduction statute applies. Senate Bill 0053 affects the following citations : IC 35-31.5-2; IC 35-42-4-7. The synopsis is as follows:
Child seduction. Provides that the offense of child seduction, a Class D felony, includes a mental health professional engaging in certain sexual behavior with a patient who is at least 16 years of age but less than 18 years of age.
Currently child seduction applies to cases where an adult participates in sexual conduct with a person under the age of 16 years except in a few exceptions. Those exceptions include when the person may be over the age of 16 years but mentally incapacitated and when the older person is in a position of trust or supervisory capacity such as a custodian, step-parent, school employee or even a military recruiter.
Representative Boots should be supported in his effort to add to the list another category which was conspicuously absent from the original legislation – MHPs. Children, especially those of divorce, are more often engaged with MHPs. Because of the ability that MHPs have to influence and manipulate their subjects it is beneficial to the therapist-patient relationship that a level of surety be maintained that a child of consensual age not be put at risk of being unduly persuaded into a sexual relationship.
The bill passed out of the Senate Corrections and Criminal Law Committee by a vote of 9-0.
If you are engaged in a child custody dispute and want to minimize the adverse effects on your child then please visit my website and contact my scheduler to make an appointment to meet with me.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Friday, January 18, 2013
Domestic Relations Committee met today to review implementation and application of the 2013 Amended Indiana Parenting Time Guidelines
On 04 January 2013 the Indiana Supreme Court approved the Amended Indiana Parenting Time Guidelines that will become effective on 01 March 2013. The amendments are not applied retroactively. This is indicated under Preamble (C)(2) Scope of Application -
Amendments “Existing parenting time orders on the date of adoption of these amendments shall be enforced according to the parenting time guidelines that were in effect on the date the parenting time order was issued. Changes to the Indiana Parenting Time Guidelines do not alone constitute good cause for amendment of an existing parenting time order; however, a court or parties to a proceeding may refer to these guidelines in making a change to a parenting time order after the effective date of the guidelines.”
The Commentary to this section provides:
“Parents who agree that current changes to the Indiana Parenting Time Guidelines are in their child's best interest should file written agreement with the court for approval. Parents may agree to some or all of the changes to the Indiana Parenting Time Guidelines and should be specific in their written agreement.”
I have been speaking to judges about their interpretation as to applying the modified IPTG prospectively and received varying opinions. All agree that adoption of the amended IPTG to current cases must be in the best interest of the child. Where it becomes ambiguous is the specific language, “Changes to the Indiana Parenting Time Guidelines do not alone constitute good cause for amendment of an existing parenting time order”. Does this imply that there must also be a substantial change in one of the enumerated factors under IC 31-17-2-8? Listening to the members of the committee discuss the matter provided little clarity either.
The Indiana Supreme Court explain in Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008), that the factors to be considered in both an initial custody determination and a modification of a custody order are essentially the same. In particular, the Baxendale court observed that:
The general provision governing custody modifications is found in section 31-17-2-21. Modifications are permitted only if the modification is in the best interests of the child and there has been “a substantial change” in one or more of the factors identified in Section 8 as considerations in the initial custody determination.
The crux of the argument for adopting the amended IPTG [2013 Guidelines] is whether the amendments constitute a “modification of custody”. What I am hearing from judges thus far varies. Some view that the adoption of the 2013 Guidelines is not making a change to the custody order such as from joint legal to sole legal or making Sunday an overnight for the NCP and then requiring that parent to provide transportation to school. Others though view the 2013 Guidelines as making a change to parenting time when the current order adopts the IPTG. In a technical sense the 2013 Guidelines do change the parenting time order. Simply look at the winter break schedule that many parents agreed to adopt this past year. It changed the parenting time. When faced with a contested modification all judges seem to agree that they inherently have the authority to apply the 2013 Guidelines prospectively. That is, they can now be ordering that the 2013 Guidelines go into effect for the particular case on 01 March 2013.
I feel that the matter of the burden for meeting the requirement for a modification may end up being resolved by the Indiana Court of Appeals and very likely I'll be involved in the case. I can see one of the parties in a high conflict case – the area in which I specialize – taking this to that level just because the other parent adopts the alternative position on applicability.
The Spring Judicial Conference will be held on 17-19 April 2013. I would like to raise this issue for discussion at the conference to see if there can be consensus on application of using the 2013 Guidelines to amend current custody orders.
The next meeting of the Domestic Relations Committee is scheduled for 15 February 2013, 10:30 a.m. at the Indiana Judicial Center, 30 South Meridian Street. Members of the public are welcome to attend but these meetings are not public input sessions.
I offer assistance to parents who would like to have the 2013 Guidelines applied to their current custody order whether by agreement or contested and also whether represented by an attorney. If you would like to change your custody order to adopt the 2013 guidelines then please visit my website and contact my scheduler to make an appointment to meet with me.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Now I can tell you what I knew about Lance Armstrong
When I first competed against Lance Armstrong we were both young cyclist aspiring to reach the pinnacle of our sport. We were surrounded by countless others with the same desires. It was clear to me that Lance would stand above nearly all others that came along. I saw it both in attitude and physiology. When we were at the US Olympic Training Center in Colorado Springs Lance demonstrated not only his skills and determination but the characteristics of the person who would engage in the use of performance enhancement techniques.
There are two things that I am not going to do. I am not going to rationalize his behaviour and I am not going to persecute him for his actions. Those sitting outside the world of elite athletics may find it easy to draw lines in absolute terms. In the world we experienced though the absolutes don't exist. What is considered a performance enhancement itself is arbitrary. Some techniques that provided minimal enhancement may have been banned while more effective means were not. As Lance said, he passed the tests.
While the phrase “everyone was doing it” can be seen as a rationalization proffered by an offender, that does not negate the truth of the phrase. The culture of the sport, and other sports, is that there is a limited amount of financial resources to support a few promising prospects. To be one of those who is perceived as a promising prospect you must get noticed. The way to do that is to win races. Since it is only the winners of the top races who are tested there was no deterrent from using performance enhancements at local, regional and also national events except those top few like the Olympic Trials.
Every time we piled into hotel rooms there were performance enhancements around. Usually nothing more than cortizone, anti-inflammatories, pain medications, caffeine and anything else that could increase blood oxygen levels. As the stakes increased so did the level of enhancement. Although I wouldn't let a needle be stuck in me – having had to have one of the girls at the OTC hold my hand when blood was drawn – others did so with regularity. One of the most accepted enhancements was “blood doping” – extracting and discarding plasma from blood to increase the red blood cell percentage – because it was not drugs but simply manipulating the body's natural state much like taking protein supplements during body building.
With all that said I have never said that Lance took performance enhancements because I didn't see it. Thus I could only say intuitively that I “knew” that he was doing that. It was just common knowledge that those at the top made it there through some use of enhancements. That is not to say that there weren't riders who won races while clean. There could have been the exceptional few who had clean successes but in the culture of the sport it took enhancements to get noticed, to get the spot on a team that could provide the support, equipment and opportunities. As Lance said there was no fear of getting caught.
Before anyone stands on a moral high ground to condemn Lance, any other riders or the sport for succumbing to the pressures associated with having to achieve or engaging in a prohibited act for want of fear of repercussion I ask this; do you have clean hands? When you filed your Indiana tax return did you cheat? An enforcement officer from the Indiana Department of Revenue once told me that they don't even bother trying to combat the tax evasion that “99% of filers” engage in. That was no exaggeration. Department audits confirmed it as was later reported in the media.
While I turned pro and was nearly killed by a vehicle two months later Lance Armstrong went on to win the Tour de France seven times but has been stripped of those titles because he “cheated”. Lance Armstrong is still a Tour de France winner. He was intensely scrutinized because he was a seven time winner. That's the nature of the oversight authorities – to ensure that those who made it to the top got there cleanly. But what about everyone else? Strip Lance of his titles. But who do you replace him with? Who was cheated? Does cheating involve gaining an advantage that others don't have? In my estimation you will be down to names that are not even well known by those intimately involved in the sport before you find someone who can't be retroactively found to have cheated. But then even those riders may likely be doping just to stay in the sport, albeit at the lowest level where they may feel more pressure knowing that any performance decrease means they are out of the sport. Back in the 90's at that level you knew you wouldn't be tested.
Lance isn't a victim of persecution, the system or peer pressure. Lance was a victim of himself and he owns his actions. In the interview he even said people would say “Look at that arrogant prick”. Back in the 80's and 90's that was a phrase often used about him from insiders. But then, anyone who lives among a culture where win at all costs is the norm it takes a sophisticated character to not appear that way. His public persona certainly didn't match the personality of the man seen by those of us who knew him.
I don't apologize for the guy or offer excuses. Lance is, however, a Tour de France winner.
If you are an athlete who would like coaching services which can include assistance from my associate who just retired as an Olympic swimmer then please visit my website and contact my scheduler to make an appointment to meet with me.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Thursday, January 17, 2013
2013 Indiana Joint Legal Child Custody - House Bill 1025 - Legislation Part 2
Representative Phyllis Pond is joined this session by Representative Ron Bacon in proposing a bill for a rebuttable presumption in dissolution and paternity cases that an award of joint legal custody is in the best interest of the child. Pond has long advocated for the right of children to maintain meaningful relationships with parents following separation.
House Bill 1025 affects the following citations : IC 31-9-2-67; IC 31-14-13; IC 31-17-2. The synopsis is as follows:
Joint legal custody. Establishes a rebuttable presumption that an award of joint legal custody is in the best interest of the child. Requires a court, if a party seeks to rebut the presumption, to consider:
(1) the fitness and suitability of each of the persons who would be awarded joint legal custody;
(2) the ability of the persons who would be awarded joint legal custody to communicate and cooperate in advancing the child's welfare; and
(3) whether the child has established a close and beneficial relationship with both of the persons who would be awarded joint legal custody.
Repeals certain provisions governing the award of joint legal custody that are being superseded by this bill.
The significant change to the current statutory scheme would provide that “there is a rebuttable presumption that an award of joint legal custody is in the best interest of the child.”
The new section, 2.4, provides three factors that the court shall consider if a party seeks to rebut the presumption that an award of joint legal custody is in the best interest of the child. Those are as follows:
(1) the fitness and suitability of each of the persons who would be awarded joint legal custody;
(2) whether the persons who would be awarded joint legal custody are able to communicate and cooperate in advancing the child's welfare; and
(3) whether the child has established a close and beneficial relationship with both of the persons who would be awarded joint legal custody.
Currently all 50 states provide for joint legal custody of children whose parents are married. Upon the filing of a dissolution action however, that status is dissolved. This bill would not mandate joint legal custody but instead would maintain the status quo for parents in dissolution actions unless the court found that the evidence does not support maintaining that status. Essentially, if this bill was adopted into law, Indiana would become an opt-out rather than an opt-in legal custody state. In paternity actions both parents would be presumed to be fit to make the major life decisions for their child unless the court found that the evidence does not support joint legal custody status.
Research has consistently shown that parents who share joint legal custody provide greater levels of support, are more dynamically involved and cooperate with each other for the benefit of the child. Fathers who shared legal custody paid more for college than those without shared custody (Fabricius, 2003). Just as patients are always encouraged to seek a second opinion before a major medical procedure is undertaken, second opinions for children as it may relate to their medical care or education may be beneficial. There is no legitimate reason why parents who made these decisions jointly prior to dissolution shouldn't be presumed competent enough to make these same decisions following their divorce. House Bill 25 has been referred to the Committee on the Judiciary which is chaired by representative Gregory Steuerwald.
If you are a parent involved in a custody dispute and would like to ensure that your bevaiour is consistent with the best interest of your child then please visit my website and contact my scheduler to make an appointment to meet with me.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Wednesday, January 16, 2013
Amended Indiana Parenting Time Guidelines to be effective on 01 March 2013
I have been informed by some judges that the much anticipated revised Indiana Parenting Time Guidelines will go into effect on 01 March 2013. The implementation is prospective. That is, the new IPTG will not be automatically applied to current cases although some judges are now ordering in new cases that the 2013 version will be effective upon its' implementation.
The next meeting of the Domestic Relations Committee – the judicial body responsible for drafting the IPTG – is set for Friday, 18 January 2013 at the Indiana Judicial Center beginning 10:30 a.m. I will obtain additional information then about the IPTG.
If you would like to have the revised IPTG applied to your current custody case then please visit my website and contact my scheduler to make an appointment to meet with me.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
Subscribe to this blawg.
More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Tuesday, January 15, 2013
2013 Indiana Child Custody and Child Related Legislation - Part I Great Grandparent Visitation
Opening day of the Indiana General Assembly was a week ago and marked the beginning of what should be a less volatile and more productive session – precisely what provides a moment of anxious enthusiasm. With a Republican super majority that block can pass legislation without any participation by Democrats. Interestingly, the Democrats have attained the results which they, just as my life coaching partners, have chose for themselves. In the pursuit of goals one must be – or act – in accordance with the desired goal. Conversely, what one does – or one's actions – determines one's station or as it may also be called the results or consequences. Thus, when the Democrats walked away from their obligation to serve their electorate and taxpayers of Indiana who funded their salaries for a job not done during the two most recent legislative sessions the voters responded in kind. Assuring the Democrats obtained their desired goal – to not work as legislators. The basis for my anxious enthusiasm is that the Republican block may now push through an unchecked social agenda without the Democrats applying any brakes. The refuge from a potential tyranny would only be available from the courts. Relief to freedom loving citizens is going to be difficult to attain as long as someone so opposed to individual liberties -- and most notably equity in family law – like Justice Steven David sit on the Indiana Supreme Court. So, onto the actual legislation.
I have identified 40 bills related to children which I have broken into three categories. The legislation I expect to be the most contentious is that related to grandparent and great-grandparent visitation. Representative Steve Davisson has authored House Bill 1101 which would allow great-grandparents to seek visitation rights with their great-grandchildren in certain circumstances. This bill merely adds “great grandparent” to the current grandparent statutory scheme found under IC 31-9-2-48.3, IC 31-14-14-3, and various portions of IC 31-17. Senator Lonnie Randolph has authored Senate Bill 28 which provides a broader application and framework to grandparent and great grandparent visitation. SB28 does little more than add “great grandparent” to the current grandparent statutory scheme found under IC 31-9-2-48.3, IC 31-14-14-3, and various portions of IC 31-17 except in one meaningful way.
31-17-5-1 is amended by this bill to read --
A child's grandparent or great-grandparent may seek visitation rights if: (4) subject to subsection (b), the grandparent or great-grandparent has had meaningful contact with the child but, as a result of an estrangement between the parent of the child and the grandparent or great-grandparent, the parent of the child terminated the child's visits with the grandparent or great-grandparent.
In the current statutory scheme grandparents may seek a visitation order in paternity and dissolution of marriage cases. The rationale behind the existing statutes is that parents will withhold from the child the opportunity to be engaged in a meaningful relationship with the parents of the targeted parent as a perceived form of revenge or punishment against the targeted parent. This is the type of abuse of children that I often see being perpetuated in the high conflict cases in which I participate.
Senator Brent Steele has authored SB0171 which mirrors SB0028. Steele had introduced a similar bill in the 2010 session which resulted in heated debate over the controversial inclusion of bringing intact, married families within the jurisdiction of the family law courts. What became the engrossed bill that year now emerges as Senate Bills 28 and 171.
Although compelling testimony was provide in both support and opposition of the proposal, on balance I believe that it is dangerous to open intact families to the purview and control of the courts which have shown a propensity to harm relationships of parents and their children.
I will attempt to make a daily post about other pieces of legislation introduced to the Indiana general Assembly this year. I currently have one more life coaching partner than I like to at this time of year but I do believe that I can effectively manage my time and stay on top of these legislative matters.
If you are a grandparent or great-grandparent who has been estranged from your grandchildren or great-grandchildren and would like to re-establish your relationship then please visit my website and contact my scheduler to make an appointment to meet with me.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
Subscribe to this blawg.
More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
