Imagine that everyday on the way to the courthouse the judge in your child custody case passes 100 men and each are yelling at, smacking around, or ignoring the pleas of a child for assistance. Also, imagine that while en route 100 women are simultaneously observed holding a child lovingly, emphatically listening to the child’s chatter, and providing guidance about safely traversing their course. If you think that may have a subconscious impact on the assessment by the judge about who you are as a parent then keep reading.
If you are a viewer of old films then you are familiar with the leading bombshell who would pull her dress up enough to show off her ankle or the more enticing calf. Through conditioning the exposed ankle or a calf of a woman had become arousing to men. This was a cultural development of the time as young men in our contemporary society experience no sexual arousal from the ubiquitous exposure of women’s ankles or calves and likely do not understand the basis of a gratuitous display of the lower portion of a woman’s leg in pre-depression films.
Contrary to these puritanical cultures are the more enlightened and intelligent cultures that we observe in Central and South America, sub-Saharan Africa, and areas within the Australian continent and southern Asia. There they have evolved sufficiently to realize that the purpose of the female breast is for the production of milk to nourish the children. Thus, the female breast are openly displayed and the male members of the society do not experience lust or arousal from observing such.
Although distinct gender roles are largely being eliminated in the practices of child rearing as the various nurturing activities, emotional needs, and perfunctory duties are aptly tended to by me and women. One only need look to the baby changing tables in men’s restroom to observe the actuality of this social phenomena. Yet this paradigm shift has not been fully integrated into the courtroom setting. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Indiana Code 35-45-4-1 defines "nudity" as “the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple . . .” [emphasis added]
It also includes “the showing of covered male genitals in a discernibly turgid state.” This is what is called a “boner law” which makes it illegal for a man to obtain an erection while in a public place. [en1]
There are two conditions in which one can meet that statutory requirements for the offense of public indecency. The first is that if a person appears in a state of nudity with the intent to arouse the sexual desires of the person or another person. The second being that a person at least eighteen years of age who knowingly or intentionally, in a public place, appears in a state of nudity with the intent to be seen by a child less than sixteen years of age. The intent element is the pivotal factor in meeting the statutory elements of the offense but that is not my purpose in this rationation so I do not address that now. Rather, my intent is to demonstrate that there is a deliberate purpose in establishing a birth sex differentiation in defining public nudity and the offense of public indecency.
A study by the National Institute of Health found that “manipulation of the nipples/breasts causes or enhances sexual arousal in approximately 82% of young women and 52% of young men with only 7-8% reporting that it decreased their arousal.”[en2] Although I have not conducted an amount of research on this topic to make significant findings I do feel that men may under-report based upon the perception that the breast is a sexual organ for woman and thus being aroused by niple stimulation as a man may produce a sense of being feminine. Is there a biological basis for the perception that the breasts of women are sexual organs?
Fetishes are created by selectively hiding and revealing — making that which is hidden enticing.
Laws like Indiana’s public indecency statute are carefully crafted to develop a culture that views a women as a sexual being rather than a productive functional person. The result of the patriarchal dominance in the United States is that the female breast is portrayed not for its biological purpose -- producing nourishment for a baby or young child -- but as a medium of sexual gratification for men.
The sneak-a-peek excitement from seeing behind the abundant garb of a woman’s clothed body has not diminished in 100 years. In contemporary Islamic countries women may gracefully expose their hair or necks as a titillation to men. What is obscured or forbidden creates desire. This is much the same way that young gentile adults have been manipulated to desire alcohol.[en3]
The male breast, however, lacks the internal structures to produce milk and has only the observable external structure as a woman - cleavage, areola, and nipple. The majority of men also report that nipple stimulation produces or enhances sexual arousal. Clearly then the male breast only serves a sexual function and is therefore a sexual organ.
From a logical construct this practice of sexual discrimination is backwards is such arbitrary discrimination is to exist. The sex codes which distinguish the exposure of breasts as a criminal offense based on birth sex -- allowing men to expose their sexual organ while requiring women to obscure a means of producing sustenance for their children -- serves an obvious social agenda.
The intended outcome of this code is to inculcate gender based roles and hierarchy. Men, with their breast tightly draped over large pectoral muscles, demonstrate strength and are shown to be builders -- producers -- not objects of sexual gratification. Women, however, with their breast -- their most demonstrable means of production -- covered are shown to be meek, idle -- not productive -- and objects of sexual lust and fantasy. Therefore, when producer is contrasted to idle object of lust the producer must be granted elevated status and position of authority in the industrial or financial provider scheme.
Men who object to the maternal preference that largely still exist in child custody cases and the child support awards that accompany their diminutive role in the lives of their children need look no further than such a law as this which, while not part of the child custody statutes, serves as a constant subconscious guide to judicial officers making child custody decisions about the proper roles of mothers and fathers.
notes
1] Although removed from the books in many jurisdictions this element of an archaic puritanical code remains on the books in Indiana because men are not to be publicly seen as sexual aggressors aroused by the seductiveness of the covered woman.
2] Taken from http://www.ncbi.nlm.nih.gov/pubmed/16681470 15 January 2016.
3] Jewish as well as some mediterranean children are generally introduced to alcohol consumption during elementary school age. Both populations have significantly lower rates of consumption and abuse of alcohol within countries or cultures that do not use alcohol as an enticement to display maturity such as the policies of the United States are designed to do.
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. 
Saturday, January 16, 2016
Indiana law allows men to publicly display sexual organs and promotes maternal preference in custody decisions
Friday, January 15, 2016
2016 Indiana House Bill HB 1338 CHINS cases and protection of Parenting Time
Representative Timothy Harman has introduced House Bill 1338 relating to child representatives, foster care, and parenting time in CHINS cases. It has been referred to the committee on the Judiciary.
The first section of this bill would amend the CHINS statute IC 31-34-5-3 related to the detention of juveniles. Under current law a child who is believed to be a CHINS may be detained under certain conditions including absence of a parent. This bill would provide that when a child is taken into custody from the home of a parent, guardian, or custodian and is the subject of a previous court order that granted parenting time to a parent, guardian, or custodian who does not reside in the home from which the child was removed and was not a part of the allegation of abuse or neglect that resulted in removal of the child then the parenting time of that parent, guardian, or custodian shall continue as previously ordered.
The next section would amend the CHINS statute at IC 31-34-15-7 which allows a child to select up to two representatives to assist him or her in developing a case plan with the Department of Child Services. Under existing law DCS has the authority to reject a representative chosen by the child. This bill would allow DCS to only object to the selection of a representative. DCS would be required to file the objection with the court that found the child to be a child in need of services and state why the department believes the child representative would not act or has not acted in the best interests of the child. If the court determines that the DCS has demonstrated good cause regarding the objection then the court shall set a hearing to consider the objection. Both DCS and the child would be permitted to participate in the hearing. After a hearing the court may order the removal of a child representative if the court determines DCS established good cause to remove the child representative.
The next section would amend the CHINS statute at IC 31-34-20-1 which relates to dispositional decrees. It provides the same protection of parenting time orders as the detention portion of the bill. If a dispositional decree orders or approves removal of a child from the child's home or awards wardship of the child to DCS and the child is the subject of a previous court order that granted parenting time to a parent, guardian, or custodian who does not reside in the home from which the child was removed and was not a part of the allegation of abuse or neglect that resulted in an adjudication of the child as a child in need of services then the parenting time of the parent, guardian, or custodian described shall continue as previously ordered.
The next section would amend the CHINS statute at IC 31-34-21-7 which relates to permanency plans by establishing factors which the court may consider. These will look familiar at anyone who has been through a paternity or divorce case involving child custody. The difference here is that these considerations are not mandatory and do not include all eight factors.
The court may consider the following factors in establishing a permanency plan for the child:
(1) The age and sex of the child.
(2) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(3) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(4) The child's adjustment to the child's:
(A) home or placement;
(B) school; and
(C) community.
(5) The mental and physical health of all individuals involved.
The fifth section would add a new section to the CHINS statute at IC 31-34-23-1.5 which relates to a child in foster care. It provides that if the child is in foster care and reaches the age of 18 that the child may opt out of foster care.
The final section applies the same standards and procedure to probation officers objecting to a child’s selection of a representative as is applied to DCS objecting.
I think this is great legislation that provides some judicial oversight of CPS and protects the interests of parents who were not part of the abuse or neglect which resulted in their child being detained subject to a CHINS dispositional decree. I will be contacting legislators and asking them to support this bill.
If you support this bill please ask the Chair of the Committee on the Judiciary, Greg Steuerwald, to set HB1338 for hearing.
The progress of this bill will be updated on the posting List of 2016 Indiana Child Custody, Child Support, Domestic Violence, and Child Well-Being bills.
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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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Thursday, January 14, 2016
2016 Indiana House Bill HB 1183 Guardianship and Department of Child Services investigations
Representative David Frizzell has introduced House Bill 1183 relating to assigning the custodial decisions of minor children. Frizzell has long shown an interest in child well-being matters. The bill has been assigned to the committee on Family, Children and Human Affairs.
This bill amends the Guardianship and Protected Persons section of the Indiana Code at 29-3-9-1. Currently, under certain conditions this section allows for legal decisions to be delegated by a parent of a minor or a guardian (other than a temporary guardian) of a protected person to another person by a properly executed power of attorney. The power of attorney may be executed under two conditions; 1] for any period during which the care and custody of the minor or protected person is entrusted to an institution furnishing care, custody, education, or training. or, 2] for a period not exceeding twelve months. The authority granted to the other person may include any powers regarding health care, support, custody, or property of the minor or protected person.
This bill adds a section giving protections to all parties against government intrusion or regulation. It provides that a “delegation of powers executed under this subsection does not, as a result of the execution of the power of attorney, subject any of the parties to any laws, rules, or regulations concerning the licensing or regulation of foster family homes, child placing agencies, or child caring institutions”. It further restricts reclassifying the child in that any child who is the subject of a power of attorney is not considered to be placed in foster care. It precludes the parties from foster care regulation in that the parties to a power of attorney, including a child, a protected person, a parent or guardian of a child or protected person, or an attorney-in-fact, are not, as a result of the execution of the power of attorney, subject to any foster care requirements or foster care licensing regulations.
However, a foster family home may not provide overnight care and supervision to a child who is the subject of a power of attorney concurrent to providing care to a child placed in the foster home by the Department of Child Services or under a juvenile court order under a foster family home license. The parties may request that the department grant an exception to this rule.
The final amendment to this section allows for persons conscripted to a deployment for government service to execute a power of attorney for longer than 12 months but that such power shall expire 30 days after the deployed person returns.
This bill creates a new section at Indiana Code 31-33-8-15. This section would allow for the Department of Child Services when engaged in the investigation of alleged abuse or neglect to provide services without an implication of abuse or neglect. “If DCS classifies an assessment as unsubstantiated, the department may provide information about community service programs that provide respite care, voluntary guardianship, or other support services for families in crisis to the parent or guardian of the child who is the subject of the assessment.”
If DCS provides information to a parent or guardian of the child then that cannot be used as a basis to initiate an investigation or substantiate a finding of child abuse or neglect. If DCS substantiates the abuse or neglect it may refer the parent or guardian to a community service program that provides respite care, voluntary guardianship, or other support services for families in crisis as appropriate to meet the needs of the family.
Finally the bill provides that the providing of information by DCS does not create any obligation on its part nor can it be held liable for any action arising out of having furnished the information.
The provisions of this bill would not supercede the Indiana Parenting Time Guidelines or existing child custody orders. It should also aid in encouraging some families to avail themselves of services without fear that DCS will use their participation to implicate them in an abuse or neglect finding. With that I see no reason to oppose this bill.
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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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Wednesday, January 13, 2016
2016 Indiana House Bill HB 1223 - Issues relating to the death of a minor
Representative Olthoff has introduced House Bill 1223 relating to the death of a child who is the subject of a child custody order. The bill has been referred to the Committee on the Judiciary.
This is a rather simple bill which addresses an issue that I have, thankfully, yet to encounter in a child custody case. It provides that if a minor child who is the subject of custody order, the parent who was awarded sole legal custody of the minor child or primary physical custody, if the parents were awarded joint legal custody of the minor child, is entitled to make the decisions regarding disposal of the body.
If parents disagree on this issue then the matter needs to be addressed in settlement negotiations or before the court and entered into a court order. As disposal of a body is time sensitive challenging the decision of the custodial parent after the death of the child would not be practical and likely ineffective. It is a matter that should be considered in all cases though because children of parents who are not co-habitating have a significantly elevated risk of death.
The progress of this bill will be updated on the posting List of 2016 Indiana Child Custody, Child Support, Domestic Violence, and Child Well-Being bills.
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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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Tuesday, January 12, 2016
2016 Indiana Senate Bill SB 82 Rape and termination of parental rights
Senator Ed Charbonneau has introduced Senate Bill 82 relating to parental rights in alleged rape cases. The bill has been referred to the Committee on the Judiciary. It is scheduled for hearing on 20 January 2016 at 9:30 a.m. in Room 130. The companion bill in the House is HB1064.
This bill is a modified version of the one that has been previously introduced. In discussions I had with legislators in 2012 regarding the version introduced that year I expressed concern about the burden of proof and that men could suddenly find themselves facing a rape allegation because they filed a paternity action.
This bill provides that a woman who alleges that she conceived a child through an act of rape may file a petition with the probate or juvenile court to terminate the parental rights of the alleged father. This bill provides that the act of rape is prima facie evidence that termination of the parent-child relationship between the alleged perpetrator and the child is in the best interests of the child. In simple terms this is saying that at first glance it is assumed that it is not healthy for a child to have a relationship with his or her parent who is a rapist.
The bill further provides that the “court shall terminate the parent-child relationship if the court finds:
(1) by clear and convincing evidence that the allegations in a petition described in section 4(2)(A) and 4(2)(B) of this chapter are true; and
(2) that termination of the parent-child relationship is in the best interest of the child.”
When it was reintroduced in 2013 I wrote this about the clear and convincing standard;
The clear and convincing standard is what is called the mid-level burden-of-proof. In criminal trials the standard is proof beyond a reasonable doubt. This is generally attributed to certainty of about 95% or greater. In civil actions the standard is by a preponderance of the evidence. That means 51% or more of the evidence is in favour of the verdict. Clear and convincing is used in civil actions where there may be a substantial loss of liberty involved such as in this scenario or when CPS initiates a custodial action. Clear and convincing requires much more than a preponderance - >50% -- but not beyond a reasonable doubt -- >95%. It is generally attributed to a level of certainty of about 75%.
I am not in opposition to the intent of this bill. Clearly a woman who went through the trauma of a rape should not have to regularly face the unincarcerated perpetrator during parenting time exchanges or through other interactions. This is viewing the bill through the subjective lens of the victim.
In examining legislation I provide an objective analysis, looking both at support for the bill but also potential hazards or why it should be opposed. In 2013 I further wrote;
I am initially disturbed by this legislation in that as a specialist in high conflict child custody cases I immediately see the potential for abuse. Just think of the false allegations that are often made in petitions for protective orders that are used as part of a child custody litigation strategy. I was falsely accused of rape in a protective order petition once. The police actually came and testified against my stalker/accuser. One only need look to The Innocence Project to see the list of “rapists” who were convicted beyond a reasonable doubt but later release upon a showing that they could not have been the perpetrator. Imagine being sent to prison for the duration of the childhood of your son or daughter and losing all custody rights in the process all based upon a false allegation.
I suggested then that three provisions be added to bill. 1] Require the petitioner to disclosure any other current or past child custody proceedings between her and the accused parent, 2] that petition to terminate cannot be used as an independent action if another custody action is currently pending between the parties, and 3] that if the alleged victim of rape did not make a prior report to law enforcement or at a minimum have a rape kit test performed then there is a presumption that there was no rape and that the petitioner must first establish that a rape occurred before the termination of parental rights proceeding may move forward.
The current version of this bill has had a section added which attempts to concisely address these concerns.
Sec. 4. (a) A parent who:
(1) is the victim of an act of rape; and
(2) is at least eighteen (18) years of age at the time the act ofrape occurred;
may not file a petition for termination of the parent-child relationship under this chapter more than one hundred eighty(180) days after the birth of the child.
(b) A parent who:
(1) is the victim of an act of rape; and
(2) is less than eighteen (18) years of age at the time the act of rape occurred;
may not file a petition for termination of the parent-child relationship under this chapter more than two (2) years after becoming eighteen (18) years of age.
Adding this section is a substantial protective step by bringing the termination process in closer proximity to the time of the alleged rape. This would eliminate the rape allegation from being used as a trial strategy in a significant portion of custody battles but it could still affect a great portion of paternity cases. I would still like to see language added that requires a court that currently has jurisdiction over custody of the child to have the case transferred and joined to the existing case.
The progress of this bill will be updated on the posting List of 2016 Indiana Child Custody, Child Support, Domestic Violence, and Child Well-Being bills.
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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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Monday, January 11, 2016
2016 Indiana Senate Bill SB 198 Domestic Battery
Senator Michael Crider has authored Senate Bill SB 198 relating to Domestic Violence. The bill has been referred to the Committee on Corrections and Criminal Law. It is scheduled for hearing on 12 January 2016 at 10:00 a.m. in Room 130.
While the bill is 48 pages most are original texts that contain no changes or the inclusion of a code citation. That is simply conforming various portions of the existing criminal code related to battery and Domestic Battery by locating all Domestic Battery offenses within that section and relating or including Domestic Battery with other battery offenses throughout the numerous sections. The substantive portion of the bill comes in the amendments to the Domestic Battery statute.
The bill simplifies the relationship definition for the domestication element of Domestic Battery. Removed is that the persons involved in the battery are or were married or living as married, or have a child in common. This is replaced by the simple parameter of “family or household member”.
A series of aggravating factors are detailed for the purpose of establishing the various offense levels consistent with simple battery offense levels. This bill also adds battery by bodily waste to the Domestic Battery section.
One thing that I did not see in the bill is a definition of “family member”. In providing the inclusion of “household or family member” as a required relationship element for qualifying as Domestic Battery I believe the intent to be people that are domesticated together - residing together as a traditional family such as parents and children and possibly other close relations such as grandparents, adult siblings or cousins.
The Indiana Parenting Time Guidelines define “household family member” as an “adult person residing in the household, who is related to the child by blood, marriage or adoption.” I suggest that for the purpose of the Domestic Battery statute that “household or family member” be defined as “a person who primarily resides in the household, who is related to the the other person by blood, marriage, living as married, or adoption.” This would include multiple generations of family members, residing extended family, and also any family member who has temporarily relocated from the household to a shelter or elsewhere. I have sent this suggestion to Senator Crider.
This is logical legislation because it would disqualify absurd applications of the Domestic Violence enhancement to situations such as two people who bump cars in a parking lot and get into a fight who just happened to have been married 20 years earlier but haven’t seen each other in 15 years.
The progress of this bill will be updated on the posting List of 2016 Indiana Child Custody, Child Support, Domestic Violence, and Child Well-Being bills.
Update
Senator Crider has informed me that he has been assured that judges commonly use "family member" as a household member.
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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.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
