23 September 2013
Today I am saddened to announce that Indiana State Representative Phyllis Pond died Sunday presumable as a result of pulmonary fibrosis which was diagnosed last month. She was 82 years of age.
Representative Pond was elected to the state legislature in 1978 where she served until submitting her resignation over the Summer that was to be effective 15 October 2013. During her tenure Pond became know as a leading advocate for Shared Parenting in child custody cases. She served on the Indiana Child Custody and Support Advisory Committee and continued to file a joint legal custody bill but was unable to gain majority support.
Funeral service is 10:30 a.m. Friday, September 27, 2013 at Emanuel Lutheran Church, 800 Green St., New Haven with calling from 9 to 10 a.m. prior. Rev. Scott Zeckzer officiating. Calling is also 11 a.m. to 5 p.m. and 6 to 9 p.m. Thursday, September 26, 2013 at the church. Burial in Woodlawn Cemetery, Warren. Preferred memorials are to Emanuel Lutheran Church or Pulmonary Fibrosis Association. Arrangements by E. Harper & Son Funeral Home, 740 St. Rd. 930 E., New Haven.
Source: E. Harper & Son Funeral Home
If you are a parent who is or your client is seeking a Shared Parenting arrangement in a child custody proceeding and want to be best prepared then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
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, September 24, 2013
Services set for Indiana Representative and Shared Parenting Advocate Phyllis Pond who died on Sunday
Saturday, September 21, 2013
Let's talk about Price, Value and Costs
19 September 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Price is a rather simple concept; it's the amount charged – money or other consideration -- for a good or service. Going beyond that term into the world of trade and finance seems to lead to ambiguity, misunderstanding and confusion for much of the populace. Other terms used in conjunction with price include cost, value, charge, worth and expense. Sellers often try to develop an emotional attachment to their products by appealed to greed through proclaiming their product to have a particular financial “value” – a subjective term. But first, a question that I have difficulty in answering: “What did that cost?”
The Oxford English Dictionary [A must have for anyone who wants to communicate effectively] defines costs as that which must be given, surrendered, in order to acquire, produce, accomplish or maintain something. A sacrifice. “Cost” is one of those terms like “compare” that has no assigned charge but may be positive or negative. That is, “compare” means to show both likeness and difference so it is neutral whereas “contrast” has assigned to it the negative -- to show differences. Cost can be associated with either the expense borne by the producer or the consumer. To first answer that question it would be necessary to be informed if the interrogator wants to know the producers' or consumers' “costs”. If I am the end user then it can safely be assumed that consumer cost is being sought. If I am the retailer then producer costs can be assumed. Calculating costs is then a matter of compiling data and assigning proportional values. This is simpler for the consumer as it consists primarily of price, taxes, plus resources expended such as travel and then the “opportunity costs” – the price of goods or services that could have been obtained through applying that time and capital towards another pursuit. Costs, therefore are not static but a variable dependent upon the productivity value of the individual. The costs of going to the grocery to get a pain reliever could be $50+ for the overworked attorney whereas it may be less than $3 for an out-of-work person with little or no ambition. Cost can also be applied to human situations such as letting the house work accumulate all week cost me the opportunity to go to the festival during the weekend. After considerable mental output the number given often shocks people.
Expense is defined as an outlay of time, resources, money, labour. Pecuniary charge, cost or sacrifice involved in the requisition of an object. Essentially it is the same as cost but is more narrowly applied to trade. Expense is also more aligned to a non-recoverable outlay. When considering a purchase we often weigh the expense against the value whether we realize it.
Value is defined as the amount of some commodity or medium of exchange that is considered to be a fair, adequate or equivalent return for a good or service provided. The relative status of a thing. The usefulness or importance of a thing or service and the comparable fair exchange of goods or services for exchange. Value also is subjective. The $50 cost for a bottle of pain reliever for the attorney who had to give up 15 minutes of work time to get it may be a bargain value. If that pain reliever allows him to complete two additional hours of billable work that day then the instant value to him is $400, minus his expenses. So value is always dependent upon time, place and user.
Charge is defined as a pecuniary burden, cost, The price required or demanded for the exchange of a good or service. Charge is the verb form of price.
Worth is a more interesting term in that it is both financial where it is nearly synonymous with value but also humanistic where it applies to a person's essence. It is defined as a pecuniary value. The esteem in which something is held. The amount of a resource or medium of exchange to be tendered in consideration of the transfer or a good or service. The value of a person or thing in terms other than a monetary exchange. In financial terms it differs from value in that the subjectivity of the user's benefit is removed. The value of the pain reliever may have been over $100 to the attorney at that time and place but it's “worth” was still market dependent. Worth more closely matches a consensus of the general population or rather “market price”. The so-desired-to-be benevolent are often heard in negotiation saying things like “It's worth $100 but you can have it for $20”. So nice to offer an 80% discount from what could be attained at that time and place from another party. Obviously that would make a good investment if the seller was being truthful.
Investment is defined as an outlay of capital into a business, commodity or other material for the purpose of seeking a profit. An investment can also be the monetary value of an outlay of human capital in time or effort. When making an investment there is an assumption or expectation that the original outlay of money, resources or some other medium of exchange will be returned in addition to a greater amount – profit. Technology is often seen as an investment, especially for businesses. What once may have required file cabinets filling a room the size of the footprint of your house can now be stored on the device that you are likely using to read this. Those files can also be searched with key terms of other fields rather than a clerk being paid to shuffle through file cabinets. The minimal outlay of funds for such a system is an investment with a substantial return.
To effectively manage your own finances and get the most productive use of your time it is imperative that you know and understand these terms. Invest some time in improving your financial acumen so that the value of your purchases exceeds their costs and provides a good return on investment. You'll find your life to be less stressful when you master that simple exercise.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Tuesday, September 17, 2013
Donating to The Salvation Army? You may be “giving” more than you think!
17 September 2013
If you are a regular reader of my postings then you realize the emphasis that I place on ethics and morality. Also that in any endeavor one must practice what they preach or "walk it like they talk it" so to say. Here is another story about responsibility that may surprise you.
I often make trips to downtown Indianapolis or the Broad Ripple area, riding a bicycle to do so. My parents live near Butler University and thus this provides me with opportunities to refuel, change clothes, jump on-line, and rest briefly. When I arrived a week ago I followed my usual routine. As I sat on the front porch I removed my shoe covers, shoes, and both pair of gloves. I shoved those against the wall opposite some boxes of items that were awaiting pick-up from The Salvation Army. I then proceeded inside where I removed my cycling clothes and got into some street clothes. I was going to put my clothes on hangers and hang them from the hooks in the ceiling that are for the potted plants but I reasoned that those clothes may get considered as donations. Instead I laid them across the back of the lawn chairs on the porch.
As mid day approached I was on my way to the Indiana Government Center for a meeting. I returned early in the afternoon and prepared a lunch and rested. It was during this time that The Salvation Army guys showed up. The first guy who comes upon the porch sees my cycling accessories and digs through those. He settles upon one of the pair of gloves and puts those into a box of the items to be donated. What he didn't realize is that my mother was observing him through the solid glass french doors from inside the house. She then went onto the porch, returned the gloves to their original place and told the man that she saw him rifle through the pile, he knows that those are not items to be donated, and that he better not steal anything else.
I planned to make it a day their house as I was going to the law school in the evening. Upon returning I decided to stay overnight and head home first thing in the morning. Shortly after sunrise I go onto the porch to retrieve my clothing. Everything is there, including other valuables, except my cycling shirt. I searched the porch to no avail. Clearly, it appeared, someone had come upon the porch and stolen my shirt only.
So I grab a shirt that I keep in the house and head home. I rode down again on Wednesday and mentioned my dismay that someone would take only my shirt. That is when I heard the story of my gloves. Now, I am not saying that the Salvation Army guy took my shirt. What I am saying is that he had attempted to take my gloves, the shirt was the only item within arms' reach from where he was retrieving items, and other much more valuable items of mine had been on the porch for weeks and hadn't been disturbed. In the criminal justice context we would call this circumstantial evidence.
My mother immediately contacts The Salvation Army and gets moved up the chain of command until she ceases upon leaving a voice mail with a head-honcho. A report of the theft was also made to Metro PD.
As of this time, nearly a week later, there is no response. It may be conceivable that any organization could have this type of person within it. There are, however, organizations where this won't happen. Those are the ones with a top-down ethic that absolutely forbids such action. They follow a particular protocol which includes an authoritative discipline. There is also a practice which must be followed that The Salvation Army has missed.
The ethical lapse in the Salvation Army organization is aptly demonstrated by the lack of response from any of the numerous people within the management echelon who were contacted about this alleged theft by an employee. That is the sign of the true character of this organization. It's the very thing that brought disrepute, among objective observers, to the world's largest and most organized child-molestation ring – the Catholic Church – which is still raising money to pay off settlements and legal fees amassed in an effort to hide the truth from the public about their systemic penchant for sex with children. The Salvation Army is no different in it's response.
Character is not defined by name or intention but in actions. This is a contention that I stress to parents whose families or lives are in chaos or distress. Ethics and morality must be demonstrated, especially to children, when one seeks an ethical or moral response. Expectations must be communicated in a coherent manner that embraces feedback. All feedback must receive a timely and appropriate response. That is a demonstration of character.
The Salvation Army doesn't need donations, especially “donations” that cost the donors a bit more than expected, but instead and morality and ethics check.
If your clients' case involves allegations of neglect, immorality or failure to discipline then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
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.
Thursday, September 12, 2013
Indiana Supreme Court Heard Oral Arguments in State v Brewington Today
12 September 2013
Dan Brewington was released from prison one week ago today after serving his sentence for a conviction of threatening a judge. The alleged threats were statements that Mr Brewington made in a blog posting about Judge James D. Humphrey of Dearborn County Circuit Court who stripped Brewington of his rights to his children following a contentious divorce proceeding.
The five justices engaged in a rigorous dialogue with attorneys for both Brewington and the State for an hour this morning. The sole consideration for the court at this time is whether to accept transfer of the case from the Indiana Court of Appeals which upheld the conviction.
Mr Brewington alleges that the statute under which he was convicted infringed upon his First Amendment right of free speech. Mr Brewington does not dispute that his statements that the judge was a child abusers because he had arbitrarily denied the children access to their father was meant to bring public shame to the judge. Instead, he argues that ridiculing someone for an action and threatening to bring additional condemnation for continued or further actions is protected speech. He likened it to op-ed pieces in newspapers that vigorously condemn and ridicule public officials or sports commentators who malign a player or coach for a decision made. He asks, should they all be subject to criminal prosecution for their statements?
Mr Brewington was joined by the State of Indiana, The Indianapolis Star, The Indiana Civil Liberties Union, The Indiana State Press Association and other free speech organizations in seeking review of the case by the Indiana Supreme Court. This case has far reaching broader First Amendment consideration that have lead to it being followed nationally.
Chief Justice Brent Dixon indicated that the decision whether to accept the case hinged upon properly made and preserved objections at the trial court level. Under the invited error doctrine if Mr Brewington didn't correctly object at the trial court level then procedurally the Justices are precluded from hearing the case. At issue is whether Mr Brewington was required to specifically object to the use of the word “or” in place of “and” in the jury instructions. Both the State and Mr Brewington countered that it would be “fundamental error” to allow the appellate ruling to stand. A “fundamental error” is one which makes a fair trial impossible such as a defendant being required to give a police statement and then using those statements against him even though he sought legal counsel and wanted to remain silent.
The justice will now consider the matter and issue their decision on whether to accept transfer.
If your clients' case involves a judge that you feel is bias then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
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.
Wednesday, September 11, 2013
IndyCar racing, integrity, building your custody case and why you must participate in a boycott
11 September 2013
Every time a client makes a case to me for an appeal it begins with the challenge to adverse witness testimony. This usually involves an accusation that the witness lied or that there was competing contradictory testimony from my clients' side. The Indiana Court of Appeals has been clear on this issue – it will neither reweigh the evidence nor judge the credibility of witnesses. See Kondamuri v. Kondamuri, 852 N.E.2d 939, 946 (Ind. Ct. App. 2006). The court reasons “we afford the trial court considerable deference as it is the trial court that observes the parties’ conduct and demeanor and hears their testimony.”
Thus, it is imperative that witnesses demonstrate integrity to the trial court judge. The best way to do this is to practice integrity and live by proper ethical and moral codes. This may include sacrifice of wants and convenience on your part but when the custody of your children is at stake then those become a non-issue. A recent event in the sports world provides a great example of integrity, or lack thereof, and an opportunity for an appropriate response.
On 01 September 2013 IndyCar ran the worst auto race I have ever seen. That issue aside there was a huge ethical dilemma that occurred that day. In one of the numerous crashes during that race Scott Dixon – number two in the points standing – was pushed into the wall and the car stalled. Dixon exited the car and returned to the pit but IndyCar officials refused to return the car the to Target Chip Ganassi Racing stall for repair and reintroduction to the race so Dixon could increase his points standing. After a controversial penalty for Dixon the week prior Dixon was rightly upset by the IndyCar officials to not allow him to continue racing and accumulate points towards the championship.
Dixon expressed his disagreement with those decisions by IndyCar officials and he called for race director Beaux Barfield to be fired. Barfield, whose thin skin can't handle criticism, demonstrated his continued lack of integrity by fining Dixon $30,000. "Reflecting on it, I shouldn't have been so outspoken and I probably will be fined for it and I respect that," Dixon told The Associated Press last Wednesday. "For me, I love the sport, I want to see it better and what I did didn't help.
Dixon made a clear error by back-peddling on his comments. Dixon was justified in his condemnation of IndyCar. No sporting body should show favourtism towards or hinder any participant without just cause. That is what IndyCar has done and so has the Indianapolis Motor Speedway through its' unwritten and arbitrarily enforced rules. IndyCar has no integrity and based upon other past events neither does the Indianapolis Motor Speedway. I therefore have a moral and ethical obligation to no longer attend any event at the Indianapolis Motor Speedway or race conducted by IndyCar. I will abide by that obligation even though I have attended the Indy 500 all but about four times since 1978. If you see me at that track again please come kick me in the balls because I will deserve it. Dixon should demonstrate equal ethical strength by doing the same. Instead though he joined the sell-outs who compromise integrity for dollars. Dixon got fined and put on probation so he essentially withdrew his objection to the capricious manner in which IndyCar officials, Barfield in particular, run the racing series.
Integrity is vital. This is not just for parents experiencing child custody litigation but for all parents -- all people. Parents should demonstrate to children that those who are morally malignant will not be supported. If you are morally and ethically principled then you must show a deprecate response which, when it comes to these unethical businesses, is done through a boycott. This is not just Indycar but all businesses that have unethical practices. Wal-Mart, General Motors, Blockbuster Video, Dell Computer, Radio Shack, AT&T, and Sprint are just a few of the businesses which I will NEVER have a financial relationship with again because of their lack of ethics.
This moral and ethical adherence must be absolute, not just at times of convenience or outrage. Practicing this behaviour carries itself over into daily living including potential child custody litigation. Much in the way that practicing yoga and daily meditation has what can be perceived as indirect benefits so does living by an absolute moral and ethical code that includes not supporting or encouraging others to behave immorally or unethically. Living a moral and ethical life doesn't end with your direct actions but includes your choice also of whom you associate with or support. Don't let financial greed bankrupt your integrity.
If your clients' case involves conflicting accounts of the facts and you want to ensure his or her credibility in court then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
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, August 20, 2013
Common Core, Location and the Best Interest of Your Children
09 August 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Earlier this week I sat amongst our legislators in the large, comfy swivels chairs in the Senate Chambers listening to testimony about Common Core. The interim study committee on Common Core met for the first of three sessions to decide if it will recommend that Indiana adopt the Common Core standards for student achievement in Indiana.
While the purported intent of Common Core is to elevate student achievement throughout the United States by implementing the standards common to the countries with the highest student achievement – those in the Pacific Rim – no such common curriculum exist. The Common Core standards that have been established and adopted by 46 other states fall short of those of those of the successful Pacific Rim countries. Even if Indiana adopted the Common Core standards and even if the standards were consistent with those of the highest achieving students we would still not meet the level of achievement attained by those along the Pacific Rim. There is one underlying reason for this which in the most basic form is well known to realtors – location, location, location.
I live in a location that stands in stark contrast to that of the Pacific Rim. It's not noticed only by me. When my son, Therin, arrived for the summer this year we met near Butler University and eventually rode our bikes from there through Carmel, Zionsville, Whitestown and then arriving in Lebanon. Therin quickly pronounced that the people in Lebanon are slow – mentally. It's the same observation that I make on a regular basis just as I did after riding to Zionsville on Tuesday. As soon as I passed the Whitestown exit just south of Lebanon I noticed it. When I relayed the story of Therin's observation to my sister – a Chicago area resident – she immediately responded by saying that every time she comes down to Indy she notices it as soon as she passes Lafayette. Lebanon, Indiana and the immediate surrounding area is a dearth of human intellect and cognitive functioning on a massive scale. It's not from a lack of resources or opportunity though.
Lebanon, Indiana has a sufficient public school system, an extensive public library and ample internet access. So why are the residents only exceeded by nearby Thorntown when it comes to deficiencies in intelligence and brain functioning? The answer is location just as the realtors harken but not based upon any geological factors.
The reason is a human factor. Separate identical twin children born in contemporary Lebanon or Thorntown by moving one to the Pacific Rim and leaving the other to be reared here. I guarantee that the child raised in Asia as a reflection of the norm of both communities will be more intelligent and have higher cognitive functioning. In short, the child raised in Asia will have a brain hardwired in a superior manner to his sibling left behind. This is because children learn through observation - their environment is the passive teacher.
This is what proponents of Common Core have failed to observe or realize. Intelligence and cognitive functioning are not hereditary traits waiting to be released through training consistent with a rigorous standard. Instead these have a hereditary foundation but are developed environmentally. The environment in the Pacific rim is one of the pursuit of knowledge, learning and personal development. This is contrasted by the Homer Simpson environment of the other Boone County – the area outside of Zionsville.
The families that I know in those countries or who have immigrated here reflect the culture of learning and personal improvement that lead to their intellectual supremacy. From a child development perspective it is stimulation. Stimulation that comes from exposure to situations that challenge the higher level functioning of the developing brain as well as inducing logical thought processes.
So as a parent – especially one engaged in a custody dispute – it is not enough to select a location, school system or interactive toy. What will serve the best interest of your children is providing a safe, secure, enriching environment that fosters intellectual exploration and cognitive development. Some communities make that readily available while others make providing these necessities more of a challenge.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Tuesday, June 11, 2013
Notice of Intent to relocate - Indiana Code 31-17-2.2 et seq
In Indiana a parent who has a child that is subject to a custody order or parenting time order must file a notice of intent to relocate before attempting to relocate the child to a new residence [31-17-2.2-1]. The notice requirement applies to any party who is subject to a custody or parenting time or grandparent visitation order involving an unemancipated child. The requirement applies regardless of distance involved in the relocation – even if it is across the hallway in an apartment complex. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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“Relocation” is “a change in the primary residence of an individual for a period of at least sixty (60) days” [Swadner v. Swadner, 897 N.E.2d 966, 975 (Ind. Ct. App. 2008)].
The relocation notice requirements may seem burdensome but are easily manageable with proper planning. Each element of the requirement serves a legitimate purpose which may initially appear absurd in some cases but are significant in others. The subjective requirements are as follows [31-17-2.2-3(a)(2)];
The intended new residence, including the address of the relocating individual;
The home telephone number of the new residence, if one exist, and any other applicable telephone number for the relocating individual;
The date that the relocating individual intends to move;
A brief statement of the specific reasons for the proposed relocation of the child; and
A proposal for a revised schedule of parenting time or grandparent visitation with the child.
The notice shall be filed at least 90 days prior to the anticipated relocation date. [31-17-2.2-3(a)(1)(B)]. If the information cannot be obtained at least 90 days prior to the move then the notice can be filed without that information but it must be supplemented not later than ten (10) days after the date that the relocating individual obtains the information [31-17-2.2-3(b)].
If a party wishes to oppose the relocation of the child then he or she may file an objection not later than sixty (60) days after receipt of the notice from the relocating individual [31-17-2.2-5(a)]. Either party may request a full evidentiary hearing on the motion to prevent the relocation [31-17-2.2-5(b)]. The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason [31-17-2.2-5(c)]. If the relocating individual meets the burden of proof that the proposed relocation is made in good faith and for a legitimate reason burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child [31-17-2.2-5(d)].
If a party opposing relocation has filed an objection the court may issue a temporary restraining order preventing the relocation of the child or the return of the child to the court's jurisdiction pending a final hearing [31-17-2.2-6(a)]. In considering whether to grant the restraining order the court shall consider if the notice requirement was not served in a timely manner and the parties have not presented an agreement concerning a parenting time schedule [31-17-2.2-6(a)(1)], that the child has been relocated without the appropriate notice or an agreement between the parties or a court order [31-17-2.2-6(a)(2)], or from an examination of the evidence presented at the temporary hearing, that there is a likelihood that, after a final hearing, the court will not approve the relocation of the child [31-17-2.2-6(a)(3)]. The court, however, may grant a temporary relocation pending a final hearing if notice requirements have been met and after it reviews the evidence presented at the temporary hearing determines that there is a likelihood that it will approve the relocation of the child following the final hearing [31-17-2.2-6(b)(3)].
Any party may file a motion for the court to set the matter for a hearing to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order [31-17-2.2-1(b)]. In considering whether to modify its existing orders the court shall consider the distance involved in the proposed change of residence, the hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation, the feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements (including consideration of the financial circumstances of the parties), whether there is any relevant established pattern of conduct by the relocating individual which includes whether that individual has either promoted or thwarted a nonrelocating individual's contact with the child, the reasons provided by the relocating individual for seeking relocation and the nonrelocating parent for opposing the relocation of the child, and any other factors affecting the best interest of the child [31-17-2.2-1(b)].
In addition to those factors the court must also consider the eight factors found under I.C. 31-17-2-8 which govern child custody orders generally. While the relocation statute is a self-contained chapter and does not by its terms refer to the general change of custody provisions those must still be considered. The relocation chapter introduces some new factors that are required to be balanced, but also expressly requires consideration of “other . . . factors affecting the best interest of the child” [31-17-2.2-1(b)(6)]. The general custody determination required under 31-17-2-8 is to find “the best interests of the child” by examining the factors listed in that section. Thus, the relocation statute incorporates all of the eight factors and adds some new ones. However, there does not necessarily need to be a substantial change in one of the original 8 factors because consideration of the new factors might at least theoretically change this balance of factors [Baxendale v. Raich, 878 N.E.2d 1252, 1256 (Ind. 2008)].
The statutory framework of the relocation law is for application to child custody matters when one parent is a “relocating individual”. It is not a means by which to test waters to see what affect it would have on the custody and parenting time of the child. It is an abuse of the system to file a notice of intent to relocate without having made the substantial steps towards relocating. This is expressed in the notice requirements which include the address, telephone number, the date, and specific reasons for the relocation. A parent engaging in filing a frivolous motion to relocate may be ordered to pay attorney fees of the affected parties [31-17-2.2-1(c)].
Regardless of a custody determination or if the parent actually intends to relocate the relocating individual does still retain the right whether to relocate which a court cannot prevent. The Supreme Court of the United States has held that all citizens have a right to interstate travel “uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement,” Shapiro v. Thompson, 394 U.S. 618, 629, 631, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 15 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and laws that chill that right with no other purpose are “patently unconstitutional.” Id. (quoting United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)). The contravening interest in the right of a parent to relocate and the right of the other parent to maintain a relationship with the child are balance using the best interest standard. Thus, a parent is free to relocate but may not be able to relocate the child.
Recently I obtained an injunction preventing a parent from relocating with the children by alleging that parent was a risk to abscond with the children and the relocation was not in the children's best interest. Opposing counsel expressed his intent to withdraw the notice of intent to relocate but that has yet to happen. During my family evaluation of the non-relocating parent the children expressed no knowledge of the proposed relocation scheduled to occur three days later.
This parent has played games for years and always seeks to harm the children. Once it was realized that I would soundly prevent the relocation of the child no further attempt has been made. This parent and the attorney apparently didn't realize that the decision “ultimately turn[s] on the best interests of the child” which is, after all, the “overarching policy goal of all family court matters involving children” [Lambert v. Lambert, 861 N.E.2d 1176, 1180 (Ind. 2007)].
In summary, when a parent intends to establish a new residence for at least 60 days, notice must be provided to the other parties. The court may temporarily allow or prevent the relocation based upon the likelihood of a similar ruling following a full evidentiary hearing. In addition to the eight factors that govern initial custody determinations the relocation statute also has additional factors. There does not, however, need to be a substantial change in one of the eight factors when a relocation has been proposed. Ultimately, the court is required to determine whether the relocation is in the child's best interest.
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.
