Indiana Court of Appeals Orders Shared Parenting Against Parents Wishes

To everyone who has wanted their children to live in a Shared Parenting arrangement and been denied, you may find hope in this recent case. But don't take too much comfort; it is an unpublished opinion. Published opinions are those that can be used as precedent which are known as case law and bind judges in the future to follow their directives.

The Father, Mark Jones, appealed the trial court's decision on three grounds which the court restated as follows: 1) whether the trial court’s refusal to modify the custody arrangement was clearly erroneous; 2) whether the trial court’s omission of guidelines for contacts with the maternal grandfather was clearly erroneous; and 3) whether the modified child support obligation of $130 per week was clearly erroneous.

The first issue, which relates to Shared Parenting, is the most interesting one. Jones and Marlene Huckaby (“Mother”) dissolved their marriage in an agreed pro se petition on March 18, 2002. They agreed to joint custody of both children, T.J. born in 1998, and L.J. born in 2001. Mark and Marlene essentially alternated nights and weekends. Marlene would also care for the children if Mark was at work.

Each parent filed a petition to modify custody requesting sole custody. The father first filed and an agreed judgment was made with child support payments to be determined later. Mother then filed a petition to modify custody. The court set the matters for hearing which took two days.

Both parents acknowledged that the back and forth arrangement is a bit tiresome and the children need stability and consistency. However, Mother and Father live within blocks of one another. The trial court even noted that the close proximity makes the “back and forth thing work better.” This situation provided some difficulties but was workable in the court's mind. The trial court even pronounced that “the best thing for the children is to have some sort of continuing joint custody”.

Stop smacking yourself in the face. You are awake and I am telling you the truth. I know it is unbelievable and likely left you confused so I will state this clearly. Judge Chris D. Monroe of the Bartholomew Superior Court said, “The best thing for the children is to have some sort of continuing joint custody.” So much for saying that Shared Parenting is only feasible when both parents agree to it.

Mark contends that the trial court erred in maintaining a Shared Parenting arrangement. The court disagreed and in its ruling said that it was not clearly erroneous for the trial court to decline to award either parent primary physical custody. The trial court instead opted to allow the parents to continue their joint custody and suggested they adjust the arrangement.

The third issue raised by Mark was child support payments. The trial court calculated that Mark’s child support should be increased to $130 per week based on its Indiana Child Support Guidelines (“the Guidelines”) calculation. The trial court also ordered that Marlene should pay the first $805 of annual uninsured medical costs and sixteen percent of costs thereafter. The court came to the $130 figure by averaging two amounts.

The trial court calculated the amount Father would be designated to pay under the Guidelines to be $149.36, with his credit for 183 overnights. It then calculated the amount Mother would be paying, if she was designated to pay, with a credit of 183 overnights, which resulted in a negative number of -$110.66. Because each of these numbers took into account 183 overnights with either parent and did not result in Mother paying support, the trial court opted to order Father to pay an average of the two, $130.

The case demonstrates the clear fallacy with the "child support" payment guidelines that many of us have been complaining about for years. If it hasn't jumped off the page at you yet then let me explain it you this way. Let's say Mark and Marlene each had a laundromat in town and each bought 183 little boxes of soap each week. However, the supply gives a price-break on orders over 300 units. So Mark and Marlene decide to combine orders. There are two ways they could settle the payments.

The simplest way to do this would be Mark buys them one week and Marlene buys them the next week. Each goes to the other's place to pick up his or her share. But there is a more complicated bureaucratic way which the courts prefer. They could each pay half each week with one reimbursing the other. So, they get out their "Indiana Court Calculator" to get an exact figure. When Mark orders the 366 boxes of soap the calculator says he is to pay Marlene $149.36 for his half. When Mark order's the 366 boxes of soap the calculator says he will receive $110.66 from Marlene for her half. The court reasoned that if Mark pays $149.36 for his half and gets $110.66 credit for Marlene's half then the total cost must be $260 which half of is $130.

Now you are asking yourself how can the Indiana Child Support Calculator determine that when physical custody is split equally can the amount a parent is ordered to pay not be the same as what the other is to receive? It's called starting with a desired result and then trying to craft a way to achieve it. You name the higher income parent as the NCP and he is calculated to pay $149.36. You name the lower income parent as the NCP and she is calculated to be owed $110.66.

The Child Support worksheet requires that one parent be designated as the custodial parent. This is for the purpose of assessing "fixed costs" which is shown at the bottom of the worksheet as uninsured medical care. 6% of the child's expenses are assumed to be for uninsured medical care. Thus, one of the parents pays support and the other pays those fixed costs. I used the child support payment calculator to determine support for a hypothetical family. Whether the mother or father was selected as the NCP the figures remained the same. Each parent earns $500 per week and has no other support orders. The calculator determined the support of the child to be $152 per week. 6% of this is $475 for the year. The NCP would pay to the CP $11.40 per week or $593 per year. There are also some other fixed costs such as school textbook rental that a parent could encounter. So, all-in-all it appears that the calculator provides a somewhat even distribution of costs.

After the CP pays the first $475 of uninsured medical care the parties pay pro rated amounts based upon their share of the support. In this case each would pay 50%. Why have this 6% formula there to begin with though? It is one way of providing a windfall to the custodial parent when the full amount of the uninsured medical is not used. There is already a formula established by which the parents split uninsured medical cost after the base amount paid by the CP. That assessment should be applied for all uninsured medical cost. This is the fallacy in the guidelines that leads to two different amounts when equal Shared Parenting is in place.

Since the Indiana Supreme Court wants to receive as much federal incentive payments for the amount of child support payment ordered then they have crafted a calculator to do just that. As the trial court pointed out during the hearing, the Guidelines do not advise a method for determining support in a joint custody arrangement. The Guidelines do not advise a method for determining support in a joint custody arrangement. That is not a typo - I wanted you to see it twice. The Indiana Supreme Court is so opposed to Shared Parenting that they won't even contemplate figuring child support payments under that possibility.

The court ultimately found that the figures used to make the calculation are supported by the record and the result is not contrary to law. Given the discretion of the trial court in determining child support, its decision here is not clearly erroneous. See In re Paternity of E.C., 896 N.E.2d 923, 924 (Ind. Ct. App. 2008). The decision of the trial court is affirmed.

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

2009 Kids Count Survey - Indiana

The most recent Kids Count Survey by The Annie E Casey Foundation was released on 28 July 2009. It found that Indiana ranks 31st in child well-being based upon 10 indicators. Some significant points are the significantly higher child death rate [10th] and substantial jump in parental termination cases.

Here are the Featured Indicators of the Kids Count Survey
Child Population Under 18 (2007) 1,586,518
Children in Poverty, Age 0-17 (2007) 17.1%
Students Receiving Free Lunches (2008) 31.0%
Low Birthweight Babies (2006) 8.2%
Teen Birth Rate per 1,000 Females Age 15-17 (2006) 20.8
Graduates Passing the GQE (2007) 92.1%
Child Abuse and Neglect Rate per 1,000 Children Under Age 18 (2008) 11.1
Juveniles Committed to the Department of Correction (2008) 1,063

The following data provides a look at the family structure of children in Indiana.

Number of Paternity Cases filed by Year:
2007 - 20,998
2008 - 20,544
This reduction is not statistically significant. The rate of paternity cases has remained consistent around 23% for the past few years.

Non Marital Births
From clinical research we know that children born out-of-wedlock are more likely to suffer various harms including abuse and neglect, incarceration, psychological problems and suicide. The children in Indiana appear to be headed for harsher times as the Non Marital Birth rate continues to climb.

Head of Household Type
Although Indiana is slowing improving custodial arrangements we are still at the national average of 32% of children living in single parent headed households. Some progress has been made in increasing the rate of children living in single parent households headed by fathers but from 2000-2007 that increase was less than 3%.

Single Parent Households
Although the overall rate of single parent families has remained rather consistent from 2000 to 2007 the rate for African Americans is extremely high at 68%. InCRA is committed to reaching out to and working within this community to help remedy this situation.

Termination of Parental Rights
Indiana has made a significant effort to tear families apart and is having great success in doing so. From 1995-2008 the rate jumped 450%. In just the most recent year the rate jumped 39%. We encourage you to connect with FightCPS and Honk for Kids to help put control of raising children back to parents instead of the State.

Actual statistics may be found on the Indiana Custodial Rights Activists website.

Overall Indiana is not rated well when it comes to terms of child well-being. These statistics provided in the 2009 Kids Count Survey reveal the effects of a policy towards removing parents and particularly fathers from raising children. I continue to work with the Indiana General Assembly to help make Indiana's laws more child friendly. If you would like to help please contact member services at InCRA.

Please read the following Letter to the Editor I submitted to the Indianapolis Star on 05 August 2009.

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Editor - The Indianapolis Star

As someone who is a child advocate and works with the Indiana General Assembly to help make Indiana's laws more child friendly it is no surprise to see Indiana rank 31st in the 2009 Kids Count Survey. Although there are some family dynamics that we can do little to control, there is a much greater ability for us to formulate policies that could benefit children.

Evan Bayh's Responsible Fatherhood Act was recently reintroduced in the US Congress. Legislation like this is a step in the direction that will aide the well-being of children. Bayh makes particular findings in the Act which include; "There is an irrefutable body of evidence demonstrating that father absence is a major contributor to such troubling societal trends as increased teen pregnancy, teen violence, educational under-performance, and drug and alcohol abuse. Children who grow up without a dad are five times more likely to live in poverty and commit crime. They are more likely to drop out of school, more likely to commit suicide and more likely to become teenage parents. " Yet Indiana still maintains a policy of promoting single parent households.

Next year Hoosier lawmakers will have an opportunity to initiate policies that will benefit our children. Currently Indiana family law court judges order fathers out of their children's lives in about 80% of divorces without providing a reason unless specifically requested to do so. Senator Denis Kruse plans to reintroduce a Shared Parenting bill that will require judges to presume that both parents are fit to continue raising their children together following dissolution and to enter specific findings as to why Shared Parenting is not in the child's best interest if it is not ordered.

The rate of children born out of wedlock is steadily increasing in Indiana. Often times children are born without the fathers being involved or even knowing of the birth. Paternity is only established in about 20,000 of these 35,000+ births. Senator Greg Taylor intends to introduce a bill that would require a father to establish paternity at the time of or prior to birth. If this is not done then the mother would have to name a putative father who would receive notice and opportunity to establish parenthood.

These are just two bills that will aide Hoosier children by promoting the rearing of children in two parents households. The concept of children being raised by both parents still faces a huge hurdle though. Until the federal government reverses its incentive payment program to the states for forcing one parent out of a child's life Hoosier lawmakers are likely to remain addicted to that incentive money to the detriment of our children.

The American Coalition of Fathers and Children has proposed an amendment to Senator Bayh's bill that would change federal policy of providing Social Security money to states to break up families and instead be used to keep both parents involved with their children. Our children are far to valuable to be sold into the potential for destruction simply because lawmakers want to balance a state budget.


Stuart Showalter,
Legislative Liaison
Indiana Shared Parenting
Box 374
Lebanon, IN 46052

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Stuart Showalter


Indiana Custodial Rights Advocates

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

Supreme Court overturns judge's unwritten policy

Although it is a Kentucky case this is too funny to pass up. The case involved a judge ordering prosecutors to not make objections to defense counsel's questioning of witnesses during probable cause hearings. On its face this appears to be a clear violation of due process for the State. The caveat is that there was good reason for the ban although the Kentucky Supreme Court rightfully struck it down. It makes for a very interesting read and raises another important issue.

The most telling part about this case is not any of the points of law made, although interesting, but that the judge admits to having an unwritten policy towards particular litigants. In this case, the prosecutors. Does an unwritten policy towards a particular gender seem familiar to anyone who has been involved in a child custody dispute? Please read the following story by Jason Riley which appeared in the Courier-Journal yesterday and then my analysis.

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Judge's no-objection policy struck down

The Kentucky Court of Appeals has upheld a lower court ruling ordering Jefferson District Judge Sean R. Delahanty to stop forbidding prosecutors from making objections in his courtroom.

The ruling, supporting a March 2008 decision by Circuit Judge Susan Schultz Gibson, said it is “fundamental to our judicial system that an attorney zealously represents his client without fear of repercussions from the court.”

In February 2008, Delahanty threatened to hold a prosecutor in contempt if he objected during a probable-cause hearing, saying it violated the judge's long-standing, unwritten policy.

At the time, Delahanty told then-County Attorney Irv Maze and several of his prosecutors that he was tired of certain prosecutors wasting court time by making “obnoxious” and “ridiculous” objections” during hearings.

Under his policy, Delahanty said prosecutors have a “standing objection to each and every question” that defense attorneys ask of witnesses during probable-cause hearings. Such hearings are held so a judge can decide if there is enough evidence for a case to continue.

The appeals court ruled Friday that Delahanty could have found the individual prosecutor in contempt but could not issue a “verbal and written directive that quashed every county attorney's ability to object to any question poised to a defense witness.”
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The opinion of the Kentucky Court of Appeals raises some very interesting legal concepts. The issues before the court were as follows:
(1) whether the Jefferson Circuit Court had jurisdiction to issue the writ against a district court judge;
(2) whether a summons was required to be issued to the appellant to properly commence the action;
(3) whether the county attorney had standing to file the petition for a writ of prohibition;
(4) whether the writ was properly issued because the appellant had no authority to prevent the county attorneys from cross-examining defense witnesses; and
(5) whether the appellant promulgated a rule in contradiction of Section 116 of the Kentucky Constitution or SCR 1.040(3)(a).

Judge Delahanty frustration is apparent from information found in the record. Delahanty voiced his frustration with a particular assistant county attorney whom he referred to as “obnoxious” and a “nuisance.” He further stated that other judges within the court system had expressed the same view. The source of Delahanty's displeasure with the particular attorney was his continued frivolous objections on the basis of hearsay, relevancy, discovery, and a myriad of other grounds to defense counsel’s questions during preliminary hearings. Delahanty pointed out that he had consistently overruled the objections and the waste of judicial efficiency caused by repeated interruptions.

Delahanty made his standing order on the record during the proceedings and then reduced it to writing as follows:

This document memorializes the verbal instructions this Court has given to lawyers regarding Probable Cause Hearings for the past nine years.
***********
The Court’s responsibility in a Probable Cause Hearing is to make a determination if a felony crime was committed and whether the defendant was likely to have committed that crime.

After the Commonwealth has completed its direct examination of its witnesses, the defense can cross-examine that witness asking most any question, for a limited time.

The Commonwealth has a standing objection to each and every question asked by the defense. The standing objection includes the issue of relevance, asked and answered, improper discovery, and I’m tired of listening to defense counsel.

At the conclusion of the Commonwealth’s case, if the defense requests to call witnesses, defense counsel will be required, as an officer of the court, to make a proffer of evidence as to the substance of the witnesses testimony.

Probable cause is an issue of law. Witnesses offered for credibility will not be permitted to testify. Credibility is an issue for the trier of fact, the jury, and Court will not substitute its judgment for the jury’s.

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If you aren't laughing at this its only because you have never experienced this type of legal shenanigans going on in the courtroom.

The first three issues were dispensed of rather easily by the appellate court as they are issues of law which were dictated by statute. The court affirmed the trial court on all three issues. The fourth issue concerns the issuance of a writ of prohibition against a district court judge. Many of you may find interest in this discussion if you feel a superior or district court judge is acting beyond his scope of authority.

This is where Judge Delahanty warned prosecutors that if they made objections during defense counsel's questioning of witnesses that they would be held in contempt. It is fundamental to our judicial system that an attorney zealously represents his client without fear of repercussions from the court. Our system is adversarial in nature and depends upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. “The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers.” Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952).

Is it appropriate ask if a prosecutor must then attempt to keep any information beneficial to the defendant from coming out during a probable cause hearing. I disagree with the Kentucky Supreme Court that Sacher is instructive in this instance although I do believe Delahanty overstepped his bounds.

In Sacher the US Supreme Court stated, "If its aid be needed, this Court will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever." This case applied to counsel for criminal defendants who was jailed following trial for criminal contempt on the basis that he was repeatedly warned during trial that his defense of the defendants was contemptuous.

In opposition to the requirements of trial lawyers to provide a zealous defense of their client, a prosecutor sits in a quasi-judicial position. He represents the people but may not carry forth a lynch-mob mentality to the judge. The American Bar Association Criminal Justice Standard 3-1.2(c) requires him “to seek justice, not merely to convict”. Ethical Canon 7-13 of the ABA Model Code of Professional Responsibility states that a prosecutor must also “not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”

I do not agree with a prosecutor who makes an objection to every question posited by defense counsel but can't argue with wasting a court's time and keeping them too busy to harm more children. The prosecutor must seek to bring forth the truth even if it may dissolve his case. I must strongly object to a blanket restriction on objections for the prosecutor just as I would if it was made against defense counsel. Seeking a writ of prohibition was appropriate.

Writs are extraordinary measures which should only be applied in extraordinary circumstances. The court reasoned that our system is adversarial in nature and depends upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. “The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers.” Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952). Thus, there must be a balance between the trial judge’s duty to maintain control of the courtroom and that of the attorney to be an effective advocate for his client.

The court found that the writ issued by the Circuit Court was appropriate in that in met at least one of the two required tests: that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

The litigant seeking a writ of prohibition is known as the relator. A relator seeking a writ of mandamus or prohibition must do so “expeditiously after the jurisdiction of the respondent court became an issue[.]”  Ind. Original Action Rule 3(A); see State ex rel. Petry v. Madison County Superior Court, Div. No. 3, 573 N.E.2d 884, 885 (Ind. 1991). In Indiana the writ of prohibition is conferred in statute at IC 34-27-2.

Delahanty had been a judge for nine years at the time he issued his written order. We have the benefit of a written order and this case to examine, with clarity, the unwritten policies that a judge may have. Those of us who have been through child custody proceedings have often seen the unwritten rules in place. Primarily, judges view a father seeking to provide parenting to his child with skepticism and that his motive is to avoid paying child support. Mothers, on the other hand, are viewed as the rightful custodians of children and need to do nothing more than offer plausible denials to issues raised by fathers.

Another area which I am often confronted while providing coaching to self-represented litigants are court's policies of not allowing pro se litigants to make statements or objections. Statements by judges such as "If you want to be heard you need to get an attorney" are a blatant due process violation. The judge may well be correct that the litigant cannot speak at that time but establishing a policy that litigants must be represented by an attorney is no less a prospective constraint upon zealous advocacy for a litigants cause than a prophylactic restriction of prosecuting attorneys right to make an objection. Such policy is ripe for filing an original action for a writ of prohibition against a judge denying a pro se litigant the opportunity to speak.

Finally, the court found that Judge Delahanty had promulgated a rule in violation of the constitution and power of the supreme Court. We agree with the appellee that regardless of the label given, the appellant promulgated a rule: It is not limited to a particular case; is prospective by its terms; and is indefinite in nature. See Abernathy, 899 S.W.2d at 87. Whether a rule of court or a local rule, its promulgation is limited by either Section 116 of the Kentucky Constitution or SCR 1.040(3)(a). Id. The authority to prescribe rules of practice and procedure is exclusively in the Supreme Court. Although inferior courts are empowered to enact local rules, it is a power limited by two conditions: The local rules cannot contradict any substantive rule of law or any rule of practice and procedure promulgated by the Supreme Court and is effective only when approved by the Supreme Court. Id. Because the appellant lacked authority to promulgate the rule under review, on that basis alone, it is invalid.

Courts clearly are not what the layman feel they should be. Courts are simply a forum of procedure where litigants are to be given the opportunity to be heard. This gives me another opportunity to remind you that if you are looking for fair you will find that is the place with stinky animals, greasy food and amusement rides. If you think a judge has a policy that curtails your rights from which he has no authority then a writ of prohibition just may be your proper remedy.


Stuart Showalter


Indiana Custodial Rights Advocates

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

Two New Teen Mom/Parent Groups

Two new teen mom support groups have started in Boone County. It is important to have these support groups because of the extraordinary challenges that teen parents face. There is more than just trying to finish schooling for many. Teen moms generally have higher rates of poverty and poorer "life outcomes" for the children of teenage mothers.

Statistically a teen mom is six times more likely to have come from a single-parent household. These children are unlikely to have learned the necessary parenting skills or had a supportive family structure modeled to them.

In Lebanon, Indiana Shannon Mohringer is the coordinator of The Teen Mom Club which meets at St Peter's Episcopal Church. The group currently meets on Saturdays at 2:00pm. Ms Mohringer, who was a teen mom, has been working for six months to get this group going. She hopes to be a source for all teen parents to get the support they need be it simply others to talk to or resources in the community to help them provide the necessary care for their children.

Sometimes parents of teen parents will not provide the support their children need. “Some kick you out to the curb, basically,” Mohringer said. “They just need someone to talk to, or want advice, to tell their stories, or just to chat and have fun.” Mohringer clearly hits upon what I have found to be an issue that leads to teen pregnancy. Girls want someone to hear them.

With the breakdown of the family structure we now find many children raising themselves. These young girls and boys need someone to do more than listen, they need someone to hear them. Parents who are too involved with trying to maintain a household, pay the bills and raise other children rarely have the time to hear these at-risk youngsters. They find comfort in each other and through opportunity and a desire to maintain that connect they engage in sexual activity. Girls are more at risk because they developmentally exceed their males counterparts and often rely on the stability provided by older men.

The Teen Mom Club is somewhat of a misnomer as Ms Mohringer wants everyone to know that fathers are encouraged to be part of the group. The group plans to have various speakers such as those from WIC or a bank representative to make presentations to participants. For additional information about this group you may visit their website or contact Ms Mohringer by e-mail.

In Zionsville Susie Jordan is the Teen Parents Director of Central Indiana Youth For Christ. In this program, each young parent is matched up with an adult mentor in a small group. Mentors provide small group leadership as well as one-on-one mentoring. Meetings include guest speakers and group discussions on such topics as parenting skills, life skills, wellness education, high school completion and employment skills. For meeting times and locations contact Susie Jordan.


InCRA Parenting Tips and Resources


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

More on Jury Trial Demands - USSC, "vast potential to disrupt" courts

This story was posted as a comment to my previous post about demanding a jury trial.

My first posting about demanding a jury trial may be viewed here.

While at a meeting that evening I had a discussion about the supposed statutes criminalizing non compliance with child support payment orders. I raised the issue of if you have two of the 25 defendants scheduled for a jury trial that week actually follow through with their jury demand who do think goes, the guy behind on support payments or the one accused of raping a child? Thus, given the choice between prosecuting real crimes or trying to pad their pockets by skimming support payments, what do you think will happen. My counter-part responded that they will simply double the courts and prosecutors.

That would seem to be a logical approach. We don't want to set criminals loose upon society just because we don't have enough current capacity to manage them. But, that is precisely what happens. The Marion County Jail has been regularly releasing inmates for years because of overcrowding. Is Marion County building more jail cells or adding courts and prosecutors to speed the process? Not at a rate exceeding the caseload or population growth. There comes a point where society will only tolerate spending so much money on the scam known as the 'war on drugs'.

Marion County is likely more recognizable to you as Indianapolis. Like any large city they will have their problems. A problem encountered last year was that judges were considering issuing bench warrants for potential jurors that did not appear. Some trials were unable to proceed because of a lack of jurors. This was with only a very small percentage of cases being resolved through jury trial. Put aside the limited number of judges, courtrooms, prosecutors and public defenders. There still must be enough jurors.

Under Criminal Rule 4(C) the prosecution must take a defendant to trial within one year of the arrest or charging of the offense. There are certain exceptions to the time limit. Any delay attributed to the defendant will not count against the one year requirement. So, it is important for defendants to be prepared for trial and not ask for a continuance because it is unlikely that the prosecutor will be ready.

Do not be so quick to think it is only a logistics problem. It appears that the public has a limited tolerance for unbridled spending to support the fanciful extravagances of prosecutor's. Maybe it was Mike Nifong and his malicious prosecution against the Duke University lacrosse players in a fabricated rape case. Spending tens of thousands of dollars to manufacture a case before ever speaking to the alleged 'victim' did not go over well with many people. In fact, Nifong was sent to jail for the offense.

Back in Marion County in 2007 prosecutor Carl Brizzi made a big public showing of his top ten deadbeat dads. At the top of the list stood Eric D Walker. This loving and caring father was accused of severely neglecting his children. Brizzi had all his ducks in a row. He had court orders, child support payment history and the purported statute he would prosecute Walker under. What Brizzi didn't have was a jury who was going to allow the State to invade the sanctity of the family. The jury determined that Walker should be able to provide care for his children as he and the mother saw fit. Brizzi's waste of taxpayer money was monumental. The not guilty verdict of the jury sent a clear message to all criminal defendants that the citizens will only allow a limited amount of governmental tyranny.

Society is starting to see that prosecutors are not much unlike the people they seek to prosecute. There is a difference though in that prosecutors have taken an oath to abide by and uphold the law. As Nifong and others in Indiana have shown recently prosecutors can't be trusted any more than the defendants they go into battle against.

Police misconduct is being revealed more often with the use of audio/video recordings. In this incident a group of police officers manufacturers a case against a woman after the officer collided with her car. An Indianapolis officer plead guilty to having 'forced sex' [rape] in his police car, while on duty, with a woman wanted on a warrant. Apparently crime by officers is so prevalent that the Metro PD has only placed him on suspension while considering termination.

Police officers who have long abused their position of authority are now being seen for such conduct on a regular basis and demonstrates that no more weight should be given to an officers testimony than that of a criminal defendant.

Now I find out that the United States Supreme Court has given criminal defendants another due process consideration. In a 5-4 Melendez-Diaz v. Massachusetts decision, the high court said that lab reports served as “witnesses” for the prosecution. Justice Antonin Scalia reasoned that since the 6th Amendment gives defendants a right to "be confronted with the witnesses against him," that drug and DUI defendants among others were "entitled to be confronted with the [lab] analysts at trial." Now the prosecution must make a lab technician available to testify in person if the defendant demands it.

As a result, some cases already have been dismissed. The four dissenters readily admit to this jury demand strategy overburdening the courts. They said the ruling had "vast potential to disrupt" the criminal courts. They also said it gave "a great windfall" to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.

Clearly, criminal defendants can overwhelm the criminal courts system if they choose. If you are a criminal defendant demand a jury trial. If you are involved in any case involving an analysis report then call the reports author as a witness. If you are selected to sit on a jury demand that the case be proven and always invoke your right to veto the law if you chose.



Stuart Showalter


Indiana Custodial Rights Advocates

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

More than Grades – Homework also used to Determine Child Visitation

This is not a new case but one that is worth mentioning because of the significant impact it has. The Indiana Court of Appeals in the published opinion of Higginbotham v Higginbotham upheld the denial of a child's visitation rights to her father until she showed “vast improvement in her scholastics”.

Pursuant to the parties’ agreement, which was approved by the dissolution court, Kathryn was to have primary physical custody of their daughter,K.H., who was age 10 at the time and the parties were to share joint legal custody.

Robert Higginbotham out of concern for his daughter filed his Verified Petition to Modify Custody, alleging that there had been substantial changes in circumstances that were not in her best interests. The parties agreed to a custody evaluation that was performed by Dr. John C. Ehrmann, Jr., who recommended that custody remain the same with the addition of the appointment of a parenting coordinator. The parties agreed with the evaluators findings and stipulated to its admission.

The trial court found that the most recent report card of K.H. reflected below average grades in Science, Math, and Social Studies, and she did not pass the portion of ISTEP testing relating to English and Language Arts. Kathryn Higginbotham placed blame for this on Robert saying that their child returns from her Wednesday night visitations with Robert with homework that is incomplete or that needs to be redone.

The trial court issued its order on the petition by giving full physical and legal custody of K.H. to Kathryn. The court further eliminated K.H.'s midweek visitation with her father and conditioning its resumption upon her showing a “vast improvement in her scholastics.”

Finding no error, the court affirmed. Opinion by Judge Baker with Robb and Kirsch concurring.

There are a few problems I have with the dangerous precedent that this case sets. I have not found cases in which Higginbotham has been cited and I hope I never do. It clearly goes against logic to say that a child's “below average grades in Science, Math, and Social Studies, and [that] she did not pass the portion of ISTEP testing relating to English and Language Arts” are a direct result of her visitation time with her father on Wednesday evenings.

I don't think I am alone when I say that the basis for scholastic results are dependent upon much, much more than three or four hours on one week night. Many educational sites recommend such things for improving grades as:
~ Talking to teachers
~ Reviewing class placement
~ Tutoring
~ Getting parents involved with teachers
~ Using peer study groups
~ Sleeping and eating well prior to taking tests
However, I found no information that suggested cutting off contact between a parent and a child. Quite to the contrary involving the parents with the educational process was highly encouraged. An intelligent judge would have instead crafted a visitation order that may have involved some type of school participation by both parents.

This opinion had nothing to do with the best interest of a child. Punishing a child by cutting off the very limited contact that she already had with her father until she raises her grades is a travesty. This opinion is based more upon the Court's long-held opinion that men are the root of all problems in a child's life. If Baker, Robb and Kirsch had any compassion for children and concern for their best interest then they would have remanded this case to the trial court, based upon an abuse of discretion, and instructed the trial court to craft a visitation order in the child's best interest.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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

Social Networking sites making their way into the Courtroom

With government satellites, GPS and surveillance cameras watching your every move the last thing you need is your personal information and habits being recorded and brought into court to be used against you. I recently posted information here about Electronic Tracking and the use of Store Loyalty Cards being introduced into evidence in child custody cases.

Well now you have one more thing to be concerned about. Fortunately, this is one that you have almost complete control over. Using social networking sites can be a convenient and fun way to keep friends and family updated about your activities. However, it can also be used against you in a child custody or child support proceeding.

The games you play, photos you post, questionnaires you answer, notes you send and your status updates can provide a treasure trove of ammunition. Those wishing to question your integrity or, more importantly, parenting skills or fitness to be the custodian of your children can use this against you in court. Therefore, it is important to limit what you put out there for the public to see. Simply making your page private will not save you. To illustrate what I am talking about I will use "Bob" as an example.

Bob is a NCP who has been hammered with child support payments and has fallen significantly behind. Bob was forced to move across the country after losing his job in the community where his children lived because his home community to longer offered the high paying position he needed to maintain those payments.

Now Bob wants to have the children come live with him and is seeking a modification of custody. Bob was recently arrested on an alcohol related offense but the charge was dismissed following his demand for a jury trial. Come back and take a look at this posting about demanding jury trials. The strategy explained there paid off for Bob.

I have been helping Bob with such things as seeking a support modification while he was unemployed and with his notice of intent to relocate. When it comes to child custody issues I only advocate for the position I believe will be in the child's best interest. So, before seeking a custody modification Bob must first work on some personal issues.

Here are two status updates that Bob posted on a social networking site.
"Thanks for all of the Birthday wishes....I would have a drink for each one of you.....But I would never see my NEXT birthday.....(Yes...I'll admit...I'm....Slowing....down.....a little....)”

I am happy to see that Bob is slowing down with the drinking and has made further progress since that time. I don't want to see this on his page though. It is an admission that he is a heavy drinker. Not long after that update came this one-
“Takes life with a grain of salt... A wedge of lime...and a shot of tequila..”

Oh Bob, am I still not getting through to you? My reply to that one did. Bob's updates now are much more about family and his children. His ex-wife hasn't been oblivious to his lifestyle though. She notes, "You have two mutually exclusive relationships going on right now, your seeming enamor with the 'Margaritaville' lifestyle or being of some use to your children, your family and the public at large.  I would think you have got to be getting tired of bar nonsense and excessive drinking that has yet again reared it's destructive head in your life for too many times to count now." She went on to mention the arrest and some other issues.

Bob is not only cleaning up his public persona but also himself. Projecting a father-of-the-year lifestyle on social networking sites is not a replacement for being a beneficial parent to your children, but it's not going to come back and haunt you at a custody hearing either.

In general you do not want to put photos or comments on your social networking sites that you wouldn't want displayed or read in court. This includes things like drinking parties, dangerous activities around children and bragging about luxurious purchases or vacations. Also, do not put comments about the other parent, the lawyers or judges on these sites while you are going through the custody battle.

The mining of social networking site information goes much deeper than what I have presented here.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

Tweet

Subscribe to my child custody updates

* indicates required

Email Address *

First Name

Last Name

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