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COA: Court must hold another hearing on custody

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A trial court may refuse to approve a settlement agreement entered into by parents regarding custody of minor children, the Indiana Court of Appeals pointed out Tuesday, but in this case, the court erred by not granting the father’s motion for a continuance regarding his mental health evaluation.

The judges ordered a new hearing on custody of M.S., the daughter of Kevin and Jennifer Stone. The two entered into a settlement agreement regarding custody and division of marital property and asked the court to approve it. But the judge decided not to approve the portion regarding custody, citing concerns about Kevin Stone’s mental health. He made threats to Jennifer Stone after the divorce was filed and communicated with her family, her neighbors and M.S.’s teacher that Jennifer Stone was a fraud, thief and liar. He also refused to communicate with her unless through their child.

Kevin Stone sought three continuances of the hearing on the custody issue so he could hire counsel and obtain a mental health evaluation that the judge ordered. But the judge denied his motions and ruled that Jennifer Stone should have sole custody of M.S., with Kevin Stone having supervised parenting time. The judge noted that she would consider the results of the evaluation at a later hearing. The evaluation found no reason that Kevin Stone shouldn’t have some custody of his child.

In Kevin C. Stone v. Jennifer M. Stone, 49A02-1210-DR-820, the Court of Appeals affirmed that the trial judge could reject the parties’ settlement agreement regarding child custody. The judges pointed to statements made by Kevin Stone that he gave up the marital residence so that he could have joint legal and physical custody of M.S. This is why courts must review agreements on child custody, to ensure children aren’t being used as bargaining chips, Judge Michael Barnes wrote.

“If a party is having second thoughts about the propriety of a child custody agreement, we do not see why a trial court should be prohibited from taking such reluctance into consideration when deciding how thoroughly to examine whether the agreement suits the child’s best interests, which is the ‘overriding’ concern in any dissolution where children are involved — a concern that trumps the interest in promoting the settlement of disputes,” he wrote.

But the judge abused her discretion in denying the continuance relating to Kevin Stone’s mental health evaluation. The judge had concerns about his mental health regarding custody and there was no evidence or testimony to support the findings made by the judge. A continuance wouldn’t prejudice Jennifer Stone, so the judges ordered a new hearing on custody.

The COA also reversed the portion of the order that Kevin Stone pay $5,000 in attorney fees to Jennifer Stone.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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