| --PEERgroup --Parental Equality Enforcement Resource |
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| "All the cards were marked in advance. The trial was a pig-circus, he never had a chance." - Bob Dylan, Hurricane |
| IN THE SUPREME COURT OF INDIANA Garry L. Kirk, ) ) Appellant (Defendant) ) Cause No.S03-0205-CV-287 ) in the Supreme Court v. ) ) Cause No. 45A03-0103-CV-80 Kathy Mae Kirk, ) in the Court of Appeals ) Appellee (Plaintiff) ) ___________________________________________________________________ APPEAL FROM THE LAKE CIRCUIT COURT The Honorable Mary Beth Bonaventura, Special Judge Cause No. 45Co1-9001-DR-00199 ___________________________________________________________________ June 21, 2002 SHEPARD, Chief Justice After five years of working with experts to evaluate eleven-year-old G.L. and her divorced parents, the trial court honored the child’s wish to remain in the home Page 1 |
environment she had always known, but continued to try to stop the custodial mother’s efforts to destroy the father’s relationship with G.L. The Court of Appeals reversed and ordered custody awarded either to the father or a neutral third party. Because the trial judge was better situated to evaluate the best interests of this child, we affirm the trial court. Facts and Procedural History Kathy Mae Kirk filed for divorce from Garry Kirk in 1990, before their daughter G.L. (PEERgroup note: G.L. is referred to as Teri Ann on our site) was a year old. Mrs. Kirk was awarded custody of the child, with Mr. Kirk to have visitation. G.L. has lived with her mother since then, her maternal grandparents, two uncles, an aunt, and seven cousins. She does well in school and participates in activities including band, cheerleading, student council, the student newspaper, and church choir. Mr. Kirk transferred to Rockford, Illinois, shortly after the divorce but has returned periodically to maintain contact with G.L. In 1995, Mrs. Kirk accused Mr. Kirk of sexually molesting G.L. and petitioned the court to terminate his visitation rights. In February 1996, Mr. Kirk petitioned for modification of the custody arrangement. 2 |
The parties were regularly locked in a litigation struggle over the next five years. The court monitored the family situation and sought to establish regular visitation between Mr. Kirk and G.L. Mrs. Kirk repeatedly frustrated these reunification efforts. Five Psychologists, two social worker/therapists, a guardian ad litem and a psychiatrist provided reports on the family dynamics and personalities. The picture that emerged is not flattering to either parent. Mr. Kirk was diagnosed as recently as October as having a “chip on his shoulder” and being quick to anger (as the court observed firsthand at trial). He is “narcissistically disturbed” and at least as concerned with his own image and presentation as he is with his daughter’s well-being. At trial, he dismissed the diagnosis of narcissism as “blame sharing ...to appear politically correct.” He acknowledged having a “fireball anger” but described this as “not something that would be out of the ordinary.” Mrs. Kirk has her own issues. She was diagnoses as “severely narcissistically disordered” and unknowingly “”involved in manipulative, deceitful and exploitative behaviors in an effort to preserve her pathological enmeshment with her daughter.” Taken together, these findings confirm a 1998 psychologist’s report that “there is no real evidence that any of the parties involved has any insight into 3 |
| his or her own pathological; misbehaviors beyond minimal lip service. The major obstacle in this case will be getting these individuals on the same page.” It is not surprising therefore, that G.L. is “troubled and confused.” Although none of the experts have credited the molestation charge as true, G.L. firmly believes in it, and suffers anxiety over the possibility of further molestation. She has occasionally been so upset at the prospect of visiting her father that she has soiled herself and become hysterical. A psychiatric report in October 2000 concluded that although “[b]oth parents suffer from serious character pathology...a resolution of any kind, that included some degree of finality, is likely to improve the parent’s behavior and thus the life for [G.L.].” The psychiatrist recommended that G.L. continue to reside with Mrs. Kirk unless that arrangement proved “untenable”, in which case Mr. Kirk should move to G.L.’s neighborhood to take over her physical custody in an environment that would provide “a modicum of continuity.” ________________ In December 2000, G.L. told Judge Bonaventura, “I know he did it. I remember it. Nobody can ever change my mind, because it happened to me. I remember it.” When asked by the court , “[Y]ou didn’t think that your dad would sexually abuse you?”, she replied, “I think he would, yes. If he’s capable of doing it then, he’s capable of doing it now.” The psychiatrist recommended that Mr. Kirk be awarded “sole custody”, which light of his recommendation that G.L. reside with Mrs. Kirk we take to mean legal, not physical custody. 4 |
| Judge Bonaventura interviewed G.L., who made it clear that she wanted no contact with her father. Only when pressed did the child reluctantly accept the notion of limited, supervised visitation. In January 2001, the court denied the custody modification petition and set new visitation guideline affording Mr. Kirk a minimum of three hours each weekend, supervised by the maternal grandparents, for an eight-week period, followed by at least four hours per weekend, unsupervised but in a public setting. The court ordered both parents and G.L. to participate in family counseling with the possibility of eventual overnight visitation contingent upon a therapist’s recommendation. The court formally ordered both parents not to speak negatively about each other in G.L.'s presence. Mr. Kirk appealed, and the Court of Appeals held that the trial court abused its discretion by leaving legal and physical custody of G.L. with Mrs. Kirk “despite overwhelming evidence that their relationship was harmful to G.L.’s mental health.” It reversed and remanded with instructions to give Mr. Kirk legal custody and either Mr. Kirk or a neutral third party physical custody . It also ordered a re-determination of visitation rights. We granted transfer. _________ Mr. Kirk reacted to the court’s ruling by creating an anonymous web site to disparage the trial judge, including several irrelevant and/or unsubstantiated verbal barbs. Such a campaign only undermines his effort to portray himself as the more responsible, mature parent. On the web site, Mr. Kirk invokes Bob Dylan’s ballad about Rubin “Hurricane” Carter in excoriating the custody proceeding as a “pig-circus”. On the contrary, we commend Judge Bonaventura for staying the course for five years to do her best for a child torn between warring parents. A family court judge’s task is not easy, but it is terribly important, and at the end of the day those judge’s “remember children’s faces best.” See Bob Dylan, “Long Time Gone”. 5 |
| Standard for Custody and Visitation Judgments Under Indiana Code Ann. 31-17-2-21 (West 2001), a court may not modify a child custody order unless modification is in the child’s best interests and there is a substantive change in one of several factors that a court may consider in initially determining custody. These factors are: (1) The age and sex of the child (2) The wishes of the child's parent or parents (3) The wishes of the child,, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) The child's parent or parent’s (B) the child’s sibling (C) any other person who may significantly affect the child’s best interests. (5) The child’s adjustment to the child’s: (A) home (B) school; and (C) community (6) The mental and physical health of all individuals involved (7) Evidence of a pattern of domestic violence by either parent (8) Evidence that the child has been cared for by a de fat custodian....Ind. Code Ann. 31-17-2-8 (West 2001). 6 |
We review the modifications for abuse of discretion , with a “preference for granting latitude and deference to our trial judges in family law matters.” In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993) (affirming trial court judgment shifting primarily custody of children to father). We set aside judgments only when they are clearly erroneous, and will not substitute our on judgment if any evidence or legitimate inferences support the trial court’s judgment. (citing Trial Rule 52(A)) We explained the reason for this deference in Brickley v. Brickleyt, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965) (footnote omitted) While we are not able to say the trial judge could not have found otherwise that he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions that we are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence, or that he should have found its preponderance or the inferences therefrom to be different from what he did. Therefore,”[o]n appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by the appellant before there is a basis for reversal.” Id (citations omitted). 7 |
| The Child’s Best Interests The psychiatrist who most recently evaluated this struggle between two battle-hardened parents observed that because all the alternatives here are far less than ideal, “we might need to substitute the hope for the ‘least detrimental alternative’ as proxy for ‘the best interest of the child.’” He went on to describe this as “a case where one can easily get buried in detail and minutia that might overwhelm any decision making process.” We agree, noting that it is particularly difficult for a reviewing court to second-guess a situation that center on the personalities of two parents battling for control of a child. Courts certainly should not reward parents who refuse to cooperate in the court’s efforts to reunify a child with another parent. Nonetheless, the trial judge may well have believed: [C]hildren will normally prosper and mature...under a standard of consistency better that they will otherwise, even through at any given point in time the noncustodial parent may appear capable of offering “better” surroundings, either emotional or physical. In the large sense, the stability in surroundings, schooling, relationships, authority figures, daily routine,economic circumstances, etc. constitute a substantial determinant in assessing the statutorily enumerated factors relevant to a determination of the best interests of the child. Kuiper v. Anderson 634 N.E.2d at 558. 8 |
| G.L. has no family in Rockford except a father whom she fervently wishes to avoid. Every aspect of her life would be disrupted should her father obtain custody. Her mother may have caused the estrangement, but the trial court’s necessary focus what was best for G.L. under the totality of the circumstances. Like the Court of Appeals, we might has arrived at a different conclusion, such as awarding custody to a neutral third party to allow G.L. to remain in her hometown environment while developing a more positive attitude toward her father. The trial court was better situated, however, to determine whether an appropriate third party was available and, if so, to weigh that alternative. We cannot say from the record that the trial court clearly erred in deciding to leave G.L. with her mother while continuing to exert the court’s authority to re-establish G.L.’s relationship with her father. Conclusion We affirm the order of the trial court. Dickson, Sullivan, Boehm, Rucker, JJ., concur. |
| Working with Experts? Ignoring experts is what Bonaventura did. However, if disregarding informed, professional opinions is working, then Bonaventura was on overtime. |
| The record shows that Bonaventura did nothing except issue meaningless, empty threats that Kathy Kirk disregarded with impunity. Garry Kirk cited Kathy 13 times for contempt of court orders, but Bonaventura balked and refused to enforce her own court orders. |
| The fact that a judge appoints experts makes is clear that the EXPERT is better situated to determine the best interest of the child. Is a judge more qualified than a psychologist to diagnosis mental health? If so, why did Bonaventura appoint 11 professionals? |
| Garry Kirk left Kathy Kirk in December of 1989 citing emotional abuse. Kathy Kirk moved in with a new boyfriend the following month and filed for divorce in 1990. |
| A clear attempt to give the impression that Garry didn't care about his child and simply left town. The court NEVER mentions Dr. Rebesco's commented that prior to Sept. 1995, Garry and G.L. had a close and meaningful relationship. Further Garry rarely missed visitation before 1995 and routinely drove 6 hours round-trip to attend twice-weekly therapy sessions to facilitate reunification. |
| This is tantamount to stating that in the 1930's the Jews and Nazi's were regularly locked in struggle. The fact is Garry Kirk was under constant legal attack which often included false allegations. These false allegations carried no penalty to Kathy, of course. |
| So, stated another way, the court watched as Kathy "frustrated" reunification efforts, as if Kathy's actions were natural. No mention here that "frustrating" reunification NEVER carried any penalty. Bonaventura did NOTHING! |
| Gender-biased blame-sharing intended to level an unlevel playing field. This is modus operandi for courts: to manufacture a reason to rule for the mother. |
| Lie. This is a [deliberate?] mistranslation of court testimony. Read the true transcript...coming soon |
| Supreme Court doesn't even BEGIN to list what the professionals said about the psychotic disfunction of Kathy. Read some quotes HERE. |
| See how the Court tries to portray that the parents are EQUALLY to blame, regardless of the facts? NOT A SINGLE THERAPIST ROMOTELY SUGGESTED THAT GARRY AND KATHY WERE EQUALLY TO BLAME. READ THE QUOTES HERE. The fact is, G.L. is "troubled and confused" because she has been brainwashed into believing her father molested her. Something the courts seems happy to allow her to continue to believe, despite the warnings of long-term mental health risks by the experts. |
| This quote is from Dr. Helding...this is a misleading and partial statement that is intentionally taken out of context. Keep in mind that Helding awarded custody to Garry. |
| Again, the court here should recognize that the child believes something that NO professional appointed to this case believed to be credible. G.L. had been "rehersed" in these types of statements since age 6. Yet the court says its best for the child to live with parent responsible for this outrageous lie. How can the court pretend to be concerned about the "troubled" state of the child and yet, rule that she must stay in the environment RESPONSIBLE for this "trouble"? |
| This is EXACTLY what a brainwashed child WOULD SAY. That is what brainwashing is all about! The court twists the logic to suggest that the child's view of the father should be respected. In fact the child's view of the father NEEDS TO BE CORRECTED AND HEALED, not validated. Simply granting a brainwashed child what she wishes perpetuates a lie that makes things WORSE! |
| Three hours a week at Kathy's parents, whom she lives with. Think about this ruling. It's absolutely ignorant and patently unfair...and MORE family counselling, despite over five years of sabotage by Kathy. Helding intentionaly ended therapy given the track record, and suggested Garry be awarded legal custody. He mentioned that therapy was causing problems. Clearly Bonaventura refused to take meaningful action, opting instead to drive the father into bankruptcy |
| Not content with the facts of the case, the Supreme Court manufactures some facts of their own. Nothing on the record shows that Mr. Kirk "created" ANY web site. The court has simply based their opinion on issues outside the record. Also, not content with the psychologist's evaluations of Kirk, the court does their own evaluation of him and questions his "maturity". Not a single professional questioned Garry's maturity. |
| An adolescent bit of one upsmanship, don't you think? Who has the maturiy problem here, anyway? Is this what you'd expect from a state Supreme Court? |
| G.L.'s "wishes" have been consistent since she was 6 years old, while the court allowed the mother to isolate the child from the father for the next 5 years. The court allowed the mother ample time to brainwash the child into hating the father up until she attained an age that approached an age when her wishes would begin to be given consideration (i.e., age 14). Yet, at the time of the Supreme Court's opinion, G.L. is only 11 not 14. Why are they relying on a 11 year-old's opinion? Again, we see that the law is ignored when is is not in tune with the agenda of the court. |
| Completely ignored years of accumulated evidence. |
| This is carte blanche for the Supreme Court to ignore the most outrageous and biased decisions by a lower court, such as in this case. Here the court admits that evidence isn't as important as other factors...say, political or personal agenda. In Indiana, the ability to ignore evidence (while creating your own) is supproted by legal precedence. Courts in other states, bound by the shackles of fact and evidence, eat your heart out. |
| The psychiatrist the court refers to here is Helding, who, by the way, recommended to the court that Garry Kirk be given sole legal custody. The court deliberately refused to note this, yet picked out soundbites that support their agenda. They prefer to cherry-pick only tidbits of evidence that allow them to act irresponsibly while refusing to take the facts as they exist in their totality into consideration. |
| This completely downplays the seriousness of the emotional abuse G.L. has been subjected to, which has been documented for years. To suggest that G.L. is in a "normal" situation is outrageous and irresponsible. The dangers that G.L. face in the future are well documented (click here) This case has never been about choosing who is the best parent, it has always been about the emotional abuse of G.L. which continues to this day. And because of the Supreme Court's politically motivated decision, it will continue into the future. This danger is well documented, yet supressed by illegitimate judges who value political connections over the well-being of a child. |
| This comment looks completely past the cause, as if a mother's deliberate alienation and destruction of a child's relationship with her father is unworthy of consideration. This gives every mother in Indiana the right to turn her children against their father without fear of legal consequence. That is especially true in Bonaventura's court, where such a mother can be assured of protection and encouragement. Regarding stability, G.L. has changed schools and residences several times already in her short life. |
| A unanimous decision. Every Supreme Court Justice was in lock-step with his master, Randall Shepard. Ask yourself a question: Is there anything inconsistent and suspicious about a court system where a UNANIMOUS COURT OF APPEALS DECISION is later overturned by a UNANIMOUS SUPREME COURT DECISION. Doesn't exacty give you the sense that there is an objective standard of law being applied in Indiana, now does it? The only thing you can count on in Indiana is for the system to protect its own regadless of the facts. |
| Read PEERgroup's notes in this column. (Supreme Court decision shown with bold color and underlined to coordinate text with PEERgroup notes). |
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| Misleading. GARRY, not Kathy, was the FIRST to initiate proceedings. In Oct of '95, Garry filed a citation for visitation. Kathy, in Nov., filed for termination of Garry's visitation rights based on false molestation accusations. Then, in Feb. '96 Garry petitionred for modification of custody to him. |