A panel of the Indiana Court of Appeals issued a ruling today in J.M. v Adoption of O.M., a strangely captioned case, which upheld a trial court's finding that Father's consent to adoption was not necessary.
This case raises one often missed but important exception in the adoption rule. This is when the natural parent "fails without justifiable cause to communicate significantly with the child when able to do so" for at least one year.
Indiana Code section 31-19-9-8(a)(1)(2)(A) provides that consent to adoption is not required from the parent of a child in the custody of another person if, for a period of at least one year, the parent “fails without justifiable cause to communicate significantly with the child when able to do so[.]”
[A] party petitioning to adopt without parental consent has the burden of proving both a lack of communication for the statutory period and that the ability to communicate during that time period existed. Whether this burden has been met is necessarily dependent upon the facts and circumstances of each particular case, including, for example, the custodial parent‟s willingness to permit visitation as well as the natural parent‟s financial and physical means to accomplish his obligations. Efforts of a custodial parent to hamper or thwart communication between parent and child are relevant in determining the ability to communicate. However, in order to preserve the consent requirement for adoption, the level of communication with the child must be significant, and also must be more than “token efforts” on the part of the parent to communicate with the child. The reasonable intent of the statute is to encourage non-custodial parents to maintain communication with their children and to discourage non-custodial parents from visiting their children just often enough to thwart the adoptive parents‟ efforts to provide a settled environment for the children.
In re Adoption of C.E.N., 847 N.E.2d 267, 271-72 (Ind. Ct. App. 2006) (internal citations omitted).
The standard of review in granting a petition for adoption without parental consent can be found in HNPG - When we review a probate court's ruling in an adoption proceeding, we will not disturb that ruling unless the evidence leads to but one conclusion and the trial court reached an opposite conclusion. “We will not reweigh the evidence but instead will examine the evidence most favorable to the [probate] court‟s decision together with reasonable inferences drawn therefrom to determine whether sufficient evidence exists to sustain the decision.” The [probate] court's decision is presumed to be correct, and it is the appellant‟s burden to overcome that presumption.
In re Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008) (internal citations omitted), trans. denied.
The record shows that O.M. has been in Mother‟s care and custody since his birth on April 12, 2002. Father last visited O.M. in June of 2005 and last telephoned him in December of 2005, prior to his incarceration. Over the next four years, at least nineteen months of which he was not incarcerated, Father made no attempt to pay child support, write, telephone, or visit O.M.3 Father admittedly only “assum[ed]” that Mother would not accept letters or telephone calls from him during this time.
The often overlooked standard established by Indiana Code section 31-19-9-8(a)(1)(2)(A) is failure to communicate for any one year period. When a petition for adoption is filed by a step-parent in which it is alleged that the natural parent failed to communicate for a period of one year I sometimes hear 'but I have seen my child like at least five times in the past year."
In Adoption of J.P. the court stated that the one-year period need not immediately precede the filing of the petition. This is where some people fail to understand the law as written. There is no requirement that the failure to communicate for at least one year immediately precede the petition for adoption. As said in the immediate case "Father's attempt to contact Mother in 2009 does not vitiate the lack of significant communication." See In re Adoption of J.P., 713 N.E.2d 873, 876 (Ind. Ct. App. 1999).
There is a legitimate and necessary reason for this. Permanence and stability in child custody arrangements are presumed to be in the child's best interest. Likewise, having continuing and regular contact with a non-custodial or absent parent is also considered to be in the child's best interest.
It is important for children to have this contact with their parents. If you have failed to communicate with your child for a period of at least one year when able to do so then you are doing a disservice to your child. Don't complain to me if someone else comes along and wants to step-in and provide that necessary contact and support.
If you need assistance in assuring that you can maintain contact with your child or a petition to adopt your child has been filed and you want to oppose it then please contact me.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
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Tuesday, April 5, 2011
An Important Note on Stepparent Adoption
Mother lives on Child Support - Court knows it
Often we hear the same cries of custodial and non custodial parents; I don't get enough child support to pay the bills and I can't pay my bills because I pay too much child support.
At the outset I first note that there is an assumption, within policy, that it will cost 50% more to raise a child in a fractured family. Additionally both parents are obligated to provide support.
Subsequent to this and inclusive in the child support calculations is an allocation of "fixed costs". For example; If a one bedroom apartment and utilities is $600 per month that is the fixed costs of the apartment. If an upgrade to a $750 per month two bedroom is made because of the need for a child to have his own room then the child's share is $150 [$750 - fixed cost of $600].
The child support calculator does not ration costs based upon this logical principle, rather the calculator uses a share based model. The child represents a one half share of the people in the apartment and is thus apportioned a cost of $375 of the rent and utilities rather than $150.
In 1989, the Indiana Supreme Court adopted the Child Support Guidelines to facilitate adequate support awards for children, to make awards more equitable by ensuring consistent treatment of persons in similar circumstances, and to improve the efficiency of the process of determining support. Ind. Child Support Guideline 1 & Commentary; Garrod v. Garrod, 655 N.E.2d 336, 338 (Ind. 1995). There is a “rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.” Ind. Child Support Rule 2*. See Matula v. Bower, 634 N.E.2d 537, 539 (Ind. Ct. App. 1994), trans. denied.
From what we already know about how the calculation is formulated it is not based upon a logical application of the actual costs of supporting a child. In fact, often times the amount ordered to be paid by one parents exceeds the total expenses for the child. If this is true then that presumption should be easy to overcome. Yet, most often the courts simply order the amount arrived at through the application of the Indiana child support calculator. This may be based upon the prior rulings upholding that the Guidelines provide a presumption of correctness.
Although a trial court does have discretion on issues pertaining to child support, its decision is nonetheless governed by the Indiana Child Support Rules and Guidelines, which provide a rebuttable presumption that the correct amount of child support results from applying the guidelines. D.W. v. L.W., 917 N.E.2d 725, 727 (Ind. Ct. App. 2009)
It may still be inappropriate though for a court to use an amount arrived at through application of the Guidelines. Trial courts must avoid the pitfall of blind adherence to the computation for support without giving careful consideration to the variables which require a flexible application of the guidelines. Talarico v. Smithson (1991), Ind. App., 579 N.E.2d 671, 673.
There may be times where a deviation from the Guidelines is appropriate based upon the actual support that a parent provides. A parent's nonmonetary contribution to a child's care may be counted as support. M.W. v. A.W. (In re N.W.), 933 N.E.2d 909, 914 (Ind. Ct. App. 2010). Absent a deviation the child would then be entitled to a higher standard of living. Quite possibly greater than that of the custodial parent.
This is because child support is not paid to the custodial parent. A custodial parent merely acts as the executor of the child support trust account. Just as any executor that parent is not entitled to transfer those funds to his or her personal use. The executor /parent has a fiduciary responsibility to the child in managing the child's finances for his or her personal support. [T]he right to child support lies exclusively with the child, and a parent merely holds child support payments in trust for the benefit of the child. Hamiter v. Torrence, 717 N.E.2d 1249, 1255 (Ind. Ct. App. 1999).
Technically then it should not be possible for a parent to live solely off of child support. Yet we know it happens. It is actually the intent of the Indiana Child Support Guidelines that child support payments be used in lieu of spousal support or that the custodial parent is acting in the position of and being compensated as a nanny.
This is one of the reasons that when I was going through my divorce that I never wanted child support payments. I was wanting and willing to provide support for my child because I had a desire to provide for him not that I was getting paid to.
In the case of Ro. C and Ry. C. decided 31 March 2011 Mother appealed the denial of her request to relocate the child from Indiana to New York.
In finding that Mother did not have a legitimate reason to relocate the Indiana Court of Appeals found that there were no findings supporting a relocation but noted the following "Finding" from the trial court;
3. The evidence of the trial presented [sic] proved [Mother] has been unemployed since the date of dissolution and up until her filing of [the] Petition to Relocate to Western New York to work in a company where her [m]other is the Vice-President and that [Mother] never obtained employment and is living on the current child support that [Father] pays. [Mother] seeks to move to Stockton, New York, and claims to have been accepted at Jamestown [Community College] to study nursing. She has testified that she is eligible for a Pell Grant and Obama Grant and can receive nursing school free books and tuition in the fall. [Mother] claims she will work for $12 per hour on a part-time basis in Stockton, New York.
The panel concluded that 3 was not a "finding". I am not going to get into the legal basis for the denial of the relocation of the child but, instead, want to focus on the highlighted portion of the "finding" - [Mother] never obtained employment and is living on the current child support that [Father] pays.
This clearly demonstrates that the Court is aware that Mother is stealing money from the "trust account" of the child and using for her own personal gain. Does the Court make a sua sponte modification of the child support payment order? No. Will Father be able to sue Mother and recover the stolen funds for the child? No. Will the prosecutor charge Mother with conversion or some other crime for stealing this money from the child? No. Will a court order be put into place requiring Mother to provide an accounting of how the child's trust money is spent? No. Do courts in every jurisdiction know that child support money is being stolen from children and being spent by the fiduciaries for their own personal gain? Yes.
So the necessary question becomes - Why aren't policy makers in Indiana requiring that fiduciaries of child support payment monies e an accounting of how the child's money is spent?
The simple answer is because the system wasn't designed to provide support for the child. Instead it was designed to transfer wealth and increase spending.
Some of the largest consumer corporations in American lobby heavily at the federal level through various organizations to ensure that maximum child support payment orders are issued and enforced. The greater the amount of money transfered from an earner to a spender without restriction then the more likely it is that the money will end up in the pockets of Corporate America.
*Support Rule 2. Presumption
In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.
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Make a suggestion for me to write about.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Sunday, April 3, 2011
So I get called to a Domestic Violence situation
A week ago around midnight a friend of mine gets a call from a friend of hers who is into a situation with her domestic partner. I get told by my friend that "the next thing he is going to do is hit her". While at my friend's apartment she then says go ahead and call the cops but changes her mind and says go over there.
I get the feeling that many cops do when sent on one of these runs without having personally spoken to the reporting party; what am I going to face. My adrenaline is pumping as my 140 pound frame puts my hand forth to ring the doorbell and then pound on the door with my best I mean business knock.
After a few moments the father answers the door, obviously inebriated, and invites me in. I see mom in the kitchen washing dishes and crying. Her face is very red.
Father and I sit for a moment and I get his side of the story. I then go speak with mother who immediately breaks down in tears. I get her side of the story which nearly matches that of Father. Not unusual but somewhat of an oddity. Generally I find that in these types of situations I get to the truth much quicker when not accompanied by the police.
So what it came down to was Father had been drinking a little too much, saw a program on television about Pelicans migrating to some part of Australia each 10 years and he wanted to know why. By his account Mother started giving him "some lip" and an argument ensued. He also complained that she started hitting him in the face.
She added that Father had been insulting her which he later confirmed. She made no allegation and I saw no physical indications that he had committed any violence against her. They both agreed that there would be no more problems that evening, that their son was asleep and that everyone would be safe. Mother then went to check on their son.
That is when Father in a somber and almost helpless child tone asked what he should do. I said just go to back to watching your show and fall asleep on the couch. That is when he hit me with it. He said, "No, I mean what should I do to stop her from always hitting me. It's just not right that I am always getting hit."
So I went and told her that she better not hit him again, that if she continued to do that then he could and should contact the police. I further instructed her about the possibilities that could occur with the issuance of a Domestic Violence Protective Order or an arrest. That I could be called as a witness and that my testimony carries nearly the same weight as a police officer.
Interestingly the friend who asked me to go over there and help has admitted to me that she engaged in a unilateral act of violence against her domestic partner.
The long-held belief is that women are victims of domestic violence and men are the perpetrators. Most of that is based upon reporting to police or medical personnel. However, the reality is that few men report to police that they are the victims of domestic violence. Men do not seek medical treatment for injuries as frequently as women do or the injuries are not as severe. Also, law enforcement officers still do not believe claims by men or encourage men to seek assistance as often as they do for women.
Men who are victims of Domestic Violence or Intimate Partner Violence should report and seek assistance. If you have children in the relationship then this is a must. A record of the violence will be necessary if the relationship ever dissolves.
When a woman makes a DV accusation, false or otherwise, during a divorce she is trying to protect her children. When a man makes a DV accusation, false or otherwise, during a divorce he is trying to use the courts to still maintain control over her and this type of controlling person should not be around the children.
That is the general view of the courts. Without proper documentation that can become the reality in many cases where men are the victims of DV.
For additional information on DV or IPV click here.
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Make a suggestion for me to write about.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Thursday, March 24, 2011
Opinion from Judge Kirsch on Depriving Children of a Father
In a 2007 appeal of the grant of a custodial mother's relocation pursuant to the Indiana Relocation Statute [IC 31-17-2.2 et seq] a panel of the Indiana Court of Appeals approved the mother's relocation. Judge James Kirsch gave a compelling dissent that deserves mention.
In 2009, the Indianapolis Bar Association presented Judge Kirsch with its highest award – the Hon. Paul H. Buchanan Award of Excellence in recognition of “his notable attainments as a lawyer and honorable service to the legal profession over an extended period time.”
Judge Kirsch and his wife Jan have two children, Adam and Alexandra. Judge Kirsch was retained on the Court in 1996 and 2006 and stands again for retention in the 2016 fall election.
In the present case the panel found that mother could relocate to Texas while father stayed in Indiana without disrupting the relationship between father and the children. Father had children three overnights per week and although he was not the primary person responsible for tending to the children's frequent medical appointments and daily needs he was still significantly involved.
In a custody evaluation by Dr Richard Lawlor, Lawlor opined that both were fine parents and he could not make a recommendation as to whether the relocation should be allowed or who should have custody.
Ultimately, the trial court found that it was in the best interest of the children to relocate to Texas and be near mother's extended family.
KIRSCH, Judge, dissenting.
How can depriving children of the presence of their loving and caring father in their daily lives be in their best interests?
My colleagues conclude that Father failed to carry his burden that Mother’s relocation to Texas was not in the best interests of his children without raising or answering this question. To me, it is of paramount importance. These children’s father will not be there to attend their birthday parties, school functions, recitals, concerts, science fairs, athletic contests, and extracurricular events. Their father will not be there for parent-teacher conferences. Their father will not be there to take them to school in the morning or to pick them up in the afternoon. Their father will not be there for their doctor and dentist appointments. Their father will not know their teachers, and he will not know their friends. Their father will not be there as they move into and through adolescence with all of its attendant challenges.
The choice before the trial court and here is not a custody determination between parents who live in different places. Mother said she would not move if the trial court denied it. Rather, the choice is between whether the children should live in the same community as both of their parents or should live with one parent several hundred miles away from their other parent. To me, the better choice is obvious.
The preamble to the Indiana Parenting Guidelines states that the Guidelines “are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child.” Mother’s move to Texas will make such contact and such nurturing impossible.
I respectfully dissent.
I respectfully say that the children in Indiana would be in a much better position following familial breakdowns if we had trial court judges who would follow the lead of Judge James Kirsch. The first question judges should answer is: How can depriving children of the presence of a loving and caring parent in their daily lives be in their best interests?
If you need help with a relocation proceeding or any other child custody action please contact me.
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Make a suggestion for me to write about.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Wednesday, March 23, 2011
Interference with Child Custody - Parenting Time
One of the most common complaints I get from parents is that they are being denied custody rights of or parenting time with their children in some form. For legal custody this can be making medical decisions, enrollment in activities or a change in religious practices or attendance without consultation with the parent who shares custody. For parenting time this varies from first-right-of-refusal issues to outright denial of extended summer parenting time.
In this article I am going to limit my presentation to issues related solely to parenting time. Although the Indiana Interference with Custody statute [IC 35-42-3-4] is permeated with language about "child custody rights" the statute wholly relates to parenting time rights. The statute was last amended in 1990. It hasn't been until the last ten years that we have full embraced using the term "parenting time" to refer to physical custody.
Interference with parenting time is a crime in the State of Indiana.
(a) A person who, with the intent to deprive another person of child custody rights, knowingly or intentionally:
(1) removes another person who is less than eighteen (18) years of age to a place outside Indiana when the removal violates a child custody order of a court commits interference with custody, a Class D felony.
(b) A person who with the intent to deprive another person of custody or parenting time rights:
(1) knowingly or intentionally takes;
(2) knowingly or intentionally detains; or
(3) knowingly or intentionally conceals;
a person who is less than eighteen (18) years of age commits interference with custody, a Class C misdemeanor. However, the offense is a Class B misdemeanor if the taking, concealment, or detention is in violation of a court order.
Interference with parenting time does more than deprive a parent of the opportunity to spend time with his or her child. More importantly the child is deprived of his or her right to a consistent and reliable relationship with the parent from which everlasting bonds will be built.
Denial of parenting time has little if any consequences, especially criminally. Although existing in statute penalties are rarely imposed. I look to Minnesota for a model of where I would like to see the development of laws in Indiana.
In her landmark study, "Surviving the Breakup," researcher Joan Berlin Kelly found that as many as 50 percent of custodial mothers routinely and actively tried to sabotage father-child relationships.
The following are the remedies for denial of or interference with court-ordered parenting time in Minnesota. All parenting time orders must include notice of the relevant provisions of Minnesota law.
If the court finds that a parent has been deprived of court-ordered parenting time, then the parent who has interfered must make up parenting time to the other parent in most cases. If compensatory parenting time is awarded, additional parenting time must be:
1.at least of the same type and duration as the deprived parenting time and, at the discretion of the court, may be in excess of or of a different type the deprived parenting time;
2.taken within one year after the deprived parenting time; and
3.at a time acceptable to the parent deprived of parenting time.
If the court finds that a parent has wrongfully failed to comply with a parenting time order or a binding agreement or decision, the court may:
impose a civil penalty of up to $500 on the parent;
require the parent to post a bond with the court for a specified period of time to secure the parent's compliance;
award reasonable attorney fees and costs;
require the parent who violated the parenting time order or binding agreement to reimburse the other parent for costs incurred as a result of the violation of the order or agreement or decision; or
award any other remedy that the court finds to be in the best interests of the children involved.
The Canadian The Family Justice Review Committee believes in a number of basic principles when it comes to the issue of interference of parenting. Some of these principles are:
That parents who interfere with a child's parenting time with another parent are indeed perpetrating a form of emotional abuse and that interference in a parent-child bond may not only produce lifelong alienation from a loving parent, but lifelong psychiatric disturbance in the child. A parent who interferes with access is bringing about a disruption of a psychological bond that could, in the vast majority of cases, prove of great value to the child, regardless of the relationship between the parents.
Parents who interfere with access are failing to act in the best interests of their own child and are in fact failing in their duties as parents.
That the courts must give serious consideration to interference of parenting when deciding the custodial status of the parent.
Those principles were taken from the article Interference of parenting is child abuse! on canadacourtwatch.com which I suggest that you also read.
There are times when facilitating parenting time will not be possible. Not all of these will be considered a denial of parenting time. Sitting in a doctor's office 45 minutes after the scheduled appointment before getting seen is certainly excusable. Doing like my ex wife and scheduling her own appointment for 3:30 at a location a half hour away from the exchange site and then calling at 4:05 to say she was just leaving the doctor's office was intentional interference. The Indiana Parenting Time Guidelines [IPTG] contemplate circumstances where facilitating parenting time may not be possible. Canceled flights, medical emergencies, distant relatives coming in for the weekend, and such.
Whenever there is a need to adjust the established parenting schedules because of events outside the normal family routine, the parent who becomes aware of the circumstance shall notify the other parent as far in advance as possible. Both parents shall then attempt to reach a mutually acceptable adjustment to the parenting schedule.
If an adjustment results in one parent losing scheduled parenting time with the
child, “make-up” time should be exercised as soon as possible. If the parents cannot agree on “make-up” time, the parent who lost the time shall select the “make-up” time
within one month of the missed time. - IPTG I(C)(2)
Next year I plan to introduce comprehensive child custody notice legislation in the Indiana General Assembly. If you have ever seen a No Contact Order [this is likely if you've gone through a contested child custody proceeding] you know that there is an advisement page stating the possible penalties for violating the order. Just as Minnesota has done I would also like to see an advisement page added to Indiana child custody orders.
I want the statutes about modification of legal custody or parenting time to be included on the advisement page. Many parents are not even aware of the "eight factors" enumerated under IC 31-17-2-8. Also a brief listing and location of some of the provisions in the IPTG that lead to the most contempt actions such as first-right-of-refusal and sharing of school records.
I believe this is important because interference with parenting time in addition to possible criminal penalties can be a basis for modification of custody or parenting time.
When the custodial parent denies visitation rights to the other parent without evidence that the noncustodial parent is a threat to the child, it may be proper based upon the circumstances for the trial court to modify custody. Bays v. Bays, 489 N.E.2d 555, 561 (Ind. Ct. App. 1986), trans. denied.
“Fostering a child’s relationship with the noncustodial parent is an important factor bearing on the child’s best interest and, ideally, a child should have a well-founded relationship with each parent.” In re Marriage of Kenda and Pleskovic, 873 N.E.2d 729, 739 (Ind. Ct. App. 2007), trans. denied.
“When the custodial parent denies visitation rights to the other parent without evidence that the noncustodial parent is a threat to the child, it may be proper based upon the circumstances for the trial court to modify custody.” In re Marriage of Kenda and Pleskovic, 873 N.E.2d 729, 739 (Ind. Ct. App. 2007), trans. denied.; see also Hanson v. Spolnik, 685 N.E.2d 71, 78 (Ind. Ct. App. 1997), trans. denied.
In the reality of family law courts punishment for interference with or denial of parenting time is a rarity. Much more often you will certainly find the resources of the courts and prosecutors being dedicated to the enforcement of child support payment orders.
However, one of the most effective ways to ensure that child support payments are made is through the issuance of substantive parenting time orders and enforcement of those orders.
A majority (81.7 percent) of the 6.4 million custodial parents due child support payments in 2007 had arrangements for joint child custody or visitation privileges with the noncustodial parent. This is a decrease from 1993, when 85.6 percent of custodial parents due support had joint custody or visitation arrangements. Among this group, 78.3 percent received at least some child support payments in 2007. Of the custodial parents due child support who did not have either joint custody or visitation arrangements, 67.2 percent received child support payments. - US Census
One recent study found that only 1.9 percent of non-custodial parents who had access to their children didn't pay what they owed. But when access was denied by the custodial parent, the non-payment topped 60 percent.
In a 2006 issue of Children’s Voice Magazine comes the following information;
The government spends roughly $4-billion on child support enforcement while at the same time it spends only $10 million on parenting time enforcement. The government, using our tax dollars, spends 400-times more money on collection efforts than it does making sure that children get to spend time with the parent, usually a father, when the other parent is willfully violating parenting time orders.
There is a new section that I believe I will be successful in having added to the IPTG as the Domestic Relations Committee works this year on amending the guidelines. That is Virtual Visitation also known more formally as electronic communication time.
This will provide guidelines as to the usage of cell phones, on-line chat, texting, Skype and other forms of electronic communication that parents and children may use to stay in touch with each other. Once I know how it will be added to the IPTG I want to amend the criminal statute to include interference with electronic communication time such as blocking a parent's phone number, "defriending" or blocking a parent on social networking sites or denying the child access to the devices during the times the parent may be trying to make contact.
Ultimately policy makers, prosecutors and judges need to adjust rulings, dedicated resources, laws, guidelines and policies to reflect what is truly in the best interest of the children; that children are entitled to establish and maintain bonds with their parents without interference from either parent.
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Make a suggestion for me to write about.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Monday, March 21, 2011
Getting Legislation Passed in Indiana
Admittedly I have not been a long-time participant in the legislative process at the Indiana State House. Those who have been still have not seen anything like the walk-out by Democrat lawmakers in 2011.
The last time there was a walk-out was in 1864 and was based upon ratification of the 14th Amendment.
This time the purpose for boycotting the session is not as clear. We are now close to setting a national record for the duration of the legislative strike as Brian Bosma has called it.
I spoke to Bosma soon after the 2010 election and again on Thursday 17 March 2011 before he went into the House chambers and made this announcement. On both times it was clear that Bosma would be firm in his resolve to support legislation that would remove the long standing barriers that have reduced the opportunities for children in Indiana to flourish.
I have some rather strong feelings about this situation and my reasons for them. First, let me disclose that I do not hold an allegiance to either of the two parties. I actually refer to them as the two-factions of the Incumbent Party. I am about as independent as you can get. I do tend to favour Republican fiscal policies while seeming to side more with Democrats on social issues. That is almost a contradiction within itself. Libertarians are the people who I find myself at home with although I have some substantial differences with them in areas where I feel there should be government regulation or involvement.
I have run and been elected on the Democratic ticket but get invited to and participate in more Republican election activities.
As for legislation I have always enjoyed bi-partisan support. In fact, it is not good enough for me to get a bill passed by a simple majority. I know that one day I will face the point at which I am going to have to accept that not everyone is going to support my legislation but until that time I want and demand of myself that I get unanimous support.
So with that said it matters not to me whether the absentee legislators are Republicans, Democrats or any other party that may come along. What matters is that they were elected to do a job which they are not doing.
I can't recall any campaign where I have heard a candidate proclaim that, if elected, he or she will abandon the legislative body and process as a means by which to propound a political agenda. I have heard it said though that this is a viable means by which to prevent the majority from ramming legislation down the throats of the minority. This is one of the fundamental principles of our constitutional republic; that we allow the majority to rule while protecting the rights of the minority.
Democracy in its purest form is said to be two wolves and a lamb voting on what's for dinner. As an agnostic I am very thankful and appreciative of the Freedom of Religion Clause in the First Amendment to the United States Constitution. Freedom of religion is not only the right to practice the religion of ones choosing but also to not practice religion at all.
Some of my fellow agnostics may find themselves at odds with my position on religion and government - that within the halls of government I believe it is perfectly acceptable to open some proceedings with prayers or display religious texts such as the Ten Commandments.
While maintaining the inalienable rights of the individuals I do feel we should then be subject to the rule of the majority through a representative government. I also believe that referendum should be used in very limited circumstances. Referendum often becomes the vote of those with the most money.
So, as for the walk-out that has occurred this year I have just one word that covers my feelings completely: disappointed.
These are legislators that I know. People that I have worked closely with on bills. Individuals that have discussed their opinion, the position that represents their constituency and what it would take to gain their full-support for legislation for which I advocate. Yet now, some of that very legislation that would serve to benefit children who are in the thralls of an abusive home-life or otherwise subject to harm has been defeated.
I think that it is inexcusable to avoid the legislative process. It may very well be true that the majority party will pass legislation opposite to the will of the minority party and their constituency. But that is our process.
If the majority is successful in passing legislation that violates the rights of the minority then we have the opportunity for relief through our judicial branch of government. It is inappropriate for legislators to attempt to usurp the authority of the judiciary by not allowing legislation to be passed.
I believe that during the hearings on the legislation that those who are in opposition, be they constituents, lobbyist or legislators, make their voices heard at that time. Give me a reason to side with you in opposition. You may give me a reason to support your party in the next election.
What I am hearing today is that other than the budget the Democrats will not be returning to finish any legislation that is currently pending.
By avoiding the legislative process though I can not find any reason to support those who have done so and, regardless of their platform, I would advocate for the election of those who promise to serve by participating in the session.
If you would like to participate in the legislative process when it resumes please contact me.
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Friday, March 18, 2011
Parental Alienation and Child Custody decisions
Divorce and separation should be about dissolving the cohabitation, shared lifestyle and co-mingling of finances between two adults. It should never be about separating the children from a parent unless there is clearly substantial abuse of the child by that parent. Yet, abusive parents often use the child as a pawn for retribution against the other parent, as a hostage for a beneficial settlement of property or as leverage to obtain a high child support payment order.
If you are in a contested child custody battle then it is important that you recognize what Parental Alienation is, what you can do as a loving parent to ensure that you do not engage in it and how to combat it when the other parent is alienating your child from you.
Much of the information I will be providing here was gleaned from Parental Alienation Awareness Organization. I encourage you to visit their website if you feel that your child may be experiencing Parental Alienation or if you feel you may be at risk of alienating your child from the other parent.
Here are a few things that may indicate that you may be at risk of alienating the other parent.
~ you feel overwhelmed by hurt feelings from the actions of the other parent;
~ you don't want reminders of or items from the other parent in your home;
~ you want to "get back" at the other parent;
~ you feel that you need to protect your child from the other parent;
~ you want your child to affirm that you were correct; or
~ you want sole custody
I am not going to give a full examination of Parental Alienation but, instead, I will just examine a few points and how this may be viewed in the courts and typically what to expect from courts.
First, you should know that your child may side with the alienator. There are reasons for this that may be logical to the child. These include that the child feels the need to protect a parent who is depressed, anxious, or needy. The child may also want to avoid the anger or rejection of the alienating parent.
Parental alienation syndrome [PAS] is the term coined by Richard A. Gardner in the early 1980s to refer to what he describes as a disorder in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the other parent and the child's own attempts to denigrate the target parent. Gardner introduced the term in a 1985 paper, describing a cluster of symptoms he had observed during the early 1980s. There is dispute among the psychiatric and legal community as to whether such a condition exists.
The Ocala Divorce Law Blog had this to say in a posting about the effort to get the American Psychiatric Association [APA] to include Parental Alienation in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders [DSM-5] Dr. William Bernet, a psychiatry professor at the Vanderbilt University School of Medicine, said it was "flatly ridiculous" for the APA to contend there is not enough information available to warrant including parental alienation in the DSM. He cited legal developments and new research in numerous foreign countries. His proposal defines parental alienation disorder as "a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification."
Since the APA has not included Parental Alienation in the DSM some judges will not accept any evidence of or conclusions that a child is afflicted by PAS. However, there are some specific behaviours that when taken as a whole can lead to only one conclusion.
I have worked on numerous cases where parental alienation seemed evident. During the initial interview process I ask about the opposing parent and the child. As these behaviours are being described to me I am considering then how is it that I can present, in detail, some of the additional behaviours of the parent or child involved in alienation to the court?
Here are some of the behaviours that an alienating parent will engage in;
• Inaccurately or untruthfully telling the child about the rejected parent, or suggesting they are unsafe or dangerous.
• Inappropriately confiding adult information with the child.
• Throwing out gifts and letters from the rejected parent.
• Calling excessively during time with the rejected parent.
• Forbidding any reference to, or photos of the rejected parent.
• Scheduling activities that compete with time with the rejected parent.
• Monitoring or forbidding communication or time with the rejected parent
• Withdrawing love, inducing guilt for having fun or feeling love toward a rejected parent.
• Forcing the child to choose between parents.
• Creating conflict between the child and the rejected parent.
• Giving the child parental decision making authority, ie whether to visit with the rejected parent.
• Refusing to provide the child’s information (medical, educational, etc.), to the rejected parent.
• Not inviting/informing the rejected parent of important events. (awards, honors, graduations, etc)
• Refusing to provide others with the rejected parent’s contact information.
• Rewriting history to reduce a rejected parent’s role in the child’s life.
There are classes that may be required of divorcing or separating parents in addition to standard conditions that courts will include in custody and parenting time orders. These often include efforts to mitigate some of the behaviours I have just listed.
Because there is such a reluctance by the courts to acknowledge parental alienation it is difficult to run into court and ask a judge to order the offending parent into counseling. Instead, I suggest a plan that includes reference to specific behaviours that the court has already acknowledged.
Since the alienator will engage in a specific set of bevaviours then I would offer to the court, through an Information for Contempt, those that are specifically acknowledged in the court order or the Indiana Parenting Time Guidelines.
Monitoring or forbidding communication or parenting time with the rejected parent, refusing to provide the child’s information (medical, educational, etc.), to the rejected parent, giving the child parental decision making authority, ie whether to visit with the rejected parent, and not inviting/informing the rejected parent of important events (awards, honors, graduations, etc).
The clearest order of a court is going to be parenting time. The less knowledgeable parent or attorney may counter the parenting time violations with the argument that the child chose not to participate or that he or she felt the targeted parent was unsafe for the child.
While courts are less likely to find a parent who expresses a safety concern to be contemptuous it does fit the alienator pattern. The parenting time violations and to a lesser extent the interference in communication will lead to a finding of contempt.
The parent who constantly calls the child to "make sure everything is okay" or because he or she "is concerned" or "worried" or who is excessively clingy at the parenting time exchange is using a technique to alienate the child. Essentially the alienator is transmitting to the child a fear of the targeted parent, raising anxiety in the child while engaged in parenting time.
If this can be brought out in the testimony from the contemptuous parent then you are a giant leap closer to getting the court to recognize that the parent is an alienator.
The second area in which I seek to bring out evidence of a parent being an alienator is through exchange of information. The IPTG are rather clear about what is required of a parent as it relates to communicating information from the school or a doctor to the other parent.
I reiterated this point to the Domestic Relations Committee [DRC] today when speaking about Indiana House Bill 1422. The DRC will be altering the language about parental notification. It will soon be clearer as to exactly what information a parent is required to transmit to the other parent.
In summary it is important that you learn about parental alienation because you don't want to be an alienator but also need to recognize if your child is being alienated from you. Parental Alienation is child abuse. It does psychologically damage the child. Although I can create strategies which will use a parent's alienating behaviours against him or her I would much rather have your child not go through it to begin with.
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