Preparing for Mediation in Indiana

Several weeks ago I had a consultation about mediation.  The potential client was rather unclear about what she wanted to know about mediation and I wish I had been aware of some new videos from the Indiana Supreme Court.  I would have sent her onto this web page. Since you are reading this, I assume that you have questions about mediation. 

I think the vast majority of family law attorneys prefer settlement.  Mediation provides one means to reach a settlement.  Give Yes we can! Using divorce mediation in a collaborative divorce a read for using mediation in a collaborative divorce case. 

However, it suffers from the same weakness as all other forms of settlement:  if one person acts in bad faith, does not want to settle, there will be no settlement.  With one or both parties unwilling to settle, the only choice is for a judge to tell the parties what they will do.

Although not connected with Indiana, here is a an hour plus audio lecture on mediation (I must admit I did not listen to it all - it was distracting the wife from a movie on Showtime).

It seems I may need to start an archive for mediation articles.  In the meantime, you will find my other articles touching on mediation if  you use the search box at the top of the blog with the query of "mediation".

Good-bye to the Madison County Courthouse Law Library

Several weeks ago I walked into what had been the Madison County Courthouse Library.  Almost every book was gone - one wall of reporters and Indiana specific material was left.  It was a truly surreal moment.  So far, we still have access to Westlaw.   Since that space will be converted to a new hearing/court room, that access has a lmited future.

Good news that we will soon get more room for hearings but sad to learn that all those books were trashed - no one wanted to take them.

While drafting this post, I ran across Law - How to use the new Google Scholar legal search options; the demise of courthouse libraries on The Indiana Law Blog.  The underlying Indianapolis Star article is no longer online.

What happened in Anderson is happening elsewhere.  Since I found our law library denuded, I learned that Delaware County has also gotten rid of their law library.

I cna say that Union County has not done so.  In fact, their's is most heart-warmingly found in their Circuit Court.  I say heart-warmingly for the simple reason that one can hope that the judge can readily find the case law.

Improving Indiana's Courts for Custody Litigation

What are you willing to pay and what will you pay for?

Let me begin close to home with an article from The Anderson Herald Bulletin, Judges say stipend debate not about greed

The Madison County Council is faced with making $3.8 million in budget cuts this year and decided to ax the judges’ stipends in early October.

County judges are paid $125,000 by the state and receive an additional $5,000 stipend from the county each year.

Between the five Superior Court judges and one Circuit Court judge, the county pays $30,000 in stipends each year.

The article sets out the cause of the problem:

Although many Indiana counties are facing budget deficits as a result of property tax caps, stipends are fairly common in counties near Madison County.

Taxes fund the courts - so do some of our filing fee money - but this is essentially a tax issue.   Whatever criticism some people have about the services offered by our courts, they need to answer how they will fund their solutions.

Nor is this solely an Indiana problem.  I strongly urge reading The Indiana Law Blog's Courts - "State Courts at the Tipping Point ".  I strongly doubt that many of you realize just how widespread are our problems with courts.  Then give a look at John Bolch's Putting children first for similar problems in England.  With that understood, I am going to write about Indiana courts - this being an Indiana law blog and this being where I practice law.

For example, Fiona over at Divorce Survivor covers the proposed reforms to the Scots' civil system (understand the civil system - Scots and American - means the non-criminal side of things) in her Reaction to Review and Civil Courts Review. Yet I see some of these proposals as being just as good for Indiana as for Scotland.  I am not so sure how Indiana could implement this McKenzie Friend concept she writes about in McKenzie Friend Petition: Recent Submissions.

I have no idea why our local courts do not have an electronic calendar on their website, an online version of our financial declaration, or an online version of our Children in the Middle Seminar.  I cannot even explain why our courts' online presence is so lame.  Except to say that there are worst ones in our State.

Take a look at  The two ways to settle children's disputes: Family Court case from Australian Divorce Blog.  From what I read, I see a standard operating procedure of their courts having routinely what we call Guardians ad Litem.  Madison County cannot afford GAL's for routine custody cases.  They might be helpful to provide another perspective - that of the children - for the trial court to consider in determining the child's best interests.  Other articles on here that pertain to GAL's are here and here.  I have so far cataloged how Shelby, Howard and Henry Counties pay for GAL's here.

Is Indiana ready to fund Guardians ad Litem for each and every county?  Are we willing to pay for this?

The General Assembly allows for certain services for the courts in custody cases:

IC 31-17-2-12 (a) In custody proceedings after evidence is submitted upon the petition, if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by any of the following:

(1) The court social service agency.
(2) The staff of the juvenile court.
(3) The local probation department or, if the child is the subject of a child in need of services case under IC 31-34, the department of child services.
(4) A private agency employed by the court for the purpose.
(5) A guardian ad litem or court appointed special advocate appointed for the child by

the court under IC 31-17-6 (or IC 31-1-11.5-28 before its repeal).

Except for (a)(2), (3) and (4), I do not think that any of these possible investigators are funded by the State and not by the County.  (I do not that (a)(2) and (3) do receive State funds but that may also be besides the point on taxes).

Again:  Is Indiana ready to fund custody investigators for each and every county?  Are we willing to pay for this?

From conversations I have had, I think there are people out there who expect the courts to have its own resources.  For the most part, the courts do not the resources imagined of them.  The resources that are available do not actually exist.  I think the opinion I expressed here in Paternity - use of caseworker for custody issues - 31-14-13 is still true.

Which means the tools some expect to be provided by the courts must be provided by themselves.  Which, in turn, means those that have the funds are in a better position than those without.

Meanwhile, I still remain concerned about the possibility of a two-tiered system in Indiana.  Add the cost of preparing a case to the costs of lawyers and this concern gets magnified.  Indiana has a system for dealing with indigents (see The Indiana Law Blog: Ind. Courts - More on: "If you cannot afford an attorney, one will be appointed for you.").  Expect our courts to strictly interpret the meaning of indigent.

Will Hoosiers be willing to fund a system of legal aid for non-indigents?

I thought not when I wrote For Those Who Do Not Like Our Family Law System and I continue to think so (there is a link there to an alternative system).

Those wanting to add services to the court must also find the means for funding those changes. 

More on Paternity Fraud

My own News:  New York Times Rips on Paternity Laws and DNA  and Updating  New York Times Rips on Paternity Laws and DNA seems not to have drawn much attention to you, my readers, but this issue about paternity fraud is very large problem.  Here are some other articles commenting on The New York Times' article I commented on or on paternity fraud more generally.

Jeanne Hannah's Paternity fraud | "Duped Dads" | What's the answer? has wealth of material that applies to more than her Michigan beat.  She states the problem quite well (much more succinctly than did the Times' writer):

The answer is not easy or predictable: There is no right answer. Every case is dependent upon its own unique set of facts and also upon the specific law of the state in the US having jurisdiction over the issues. These are tough questions; they are often expensive and complicated to resolve.

Here is one resource she notes that I was not aware of:

Another valuable resource that examines the consequences and fully discusses The Uniform Parentage Act ["UPA"] is Morgan, Laura: Morgan, Laura Wish, The New Uniform Parentage Act (2000): Parenting for the Millennium, 13 Divorce Litig. 41 (March 2001) [Last accessed November 22, 2009] The UPA would help states resolve these questions in a manner that is, I believe, better for children. The UPA has been enacted in only nine states. Unfortunately, Michigan is not one of them.

Family Law Practice published Paternity which tries to put this kind of problem into context of one father to another.  I think he succeeds.  However, he may have hit on the cause of why this problem festers:  "People don’t like to discuss paternity suits in polite society",

Some of us do not have the luxury of dealing with "polite society" only.  Here are some of those responses.

Paternity Fraud Crusader Carnell Smith Responds to New York Times Hatchet Job from Mens News Daily:

Regarding Chandria, Carnell says his ex-girlfriend said he could only see her if he paid the child support, and Carnell refused. He says the ex-girlfriend said that Carnell and his family couldn't see Chandria unless via supervised visitation. He says his ex-girlfriend and her attorney asked the court to jail him for not paying after the DNA test. He says:

[My] motives have always been clear--to save my family from the clutches of the ex-girlfriend, her attorney and the child support enforcement system. [My] opponents demanded more money while reducing and eliminating my parenting time.

I thought there was little to comment here until I got to this part of the story.  Mr. Smith refused to be a victim.  Other fathers - not all of them duped fathers either - need to know that they do not pay support so that they can see their children.  That is called contempt of court.

Feminist Law Professors has On Forging Sustainable Parental Bonds and this very long paragraph: 

We read the article with a shock of recognition. In a 2003 article, Which Ties Bind? Redefining The Parent-Child Relationship In An Age Of Genetic Certainty, 11 Wm. & Mary Bill of Rts. J. 1011 (2003), we suggested, after a lengthy review of the cases, that couples who wanted the relationship to last rarely inquired too closely about paternity, while at least one of separating couples had a powerful incentive to find out the truth. Yet, parent-child relationships based on the truth had a better chance of surviving than those based on falsehood. We wrote: The only way to forge parental bonds likely to survive the child’s minority therefore is to treat the issue of parenthood separately from the issue of partnership. As a modest effort in this direction, we propose modifying existing law to require mandatory paternity, or second parent, determination at birth. We then concluded that the law should encourage establishing paternity as part of the child’s record, and that waivers should be allowed only where both parents clearly understood that they were forever foregoing the opportunity to challenge the father’s parental status.

We thought it was a good idea then, and we still do.

Now if we can get the state legislatures thinking like this, too.  

I can only describe Fathers, DNA and "Real" Parents from Confessions of An Absentee Father
as a meditation on being a father.  No, it is not a piece by a lawyer but illustrates some of the problems described above by Ms. Hannah and what I think the authors at Feminist Law Professors hope to remedy.

(Having skimmed Confessions of An Absentee Father, I suggest those who would consign paternity issues to some secret backroom take a look.  Here is his description of the blog's purpose:

Nearly twenty-two years ago a life came into this world. I fathered her. It was not planned and her mother and I were not in a relationship. I held her in my hands. I was in awe ... shock ... confusion. Then ... I was gone. Here is what happened in the beginning, what happened afterwards, what's happening now and what I hope happens in the future.)

So far you may notice how complementary all these blog posts are whether written by men or women, and here is another from Mother to Son Blog.  In a post entitled You're Not The Father, the writer has this to say:

Now I’m all for protecting the interest of the child, but what sense does this make. After all, the men stuck paying child support in many of these cases are men who took the obligation of fatherhood seriously. They lived up to what they thought was their responsibility only to find out that they’ve been lied to and that the court system can offer very little, if any, recourse.

Such antiquated laws will only push men to question paternity first and take responsibility later. I would rather see those fathers who acted in good faith be allowed to stop making any furtherchild support payments but be unable to recoup already paid child support payments. 

 (Also, do read the comments to this post).

Paternity Rights: Losing Fatherhood from Nah, Nope, Not Quite Blog seems to lose the point in light of some agenda :

Some advocates now suggest that their be mandatory paternity tests for all fathers at birth to avoid this problem. THIS IS ABSOLUTELY ESSENTIAL. The entire tone of the article suggests a kind of mystification as to why these men would be so upset about this.

Really?

I mean, really?

Only in a country as feminized as America could something like this happen. This is sickening.

His criticism of the article's writer seems misplaced - it is not that we are so feminized (which would probably come as a surprise to the writers of The Feminist Law Professors Blog) but that we are dealing with a very old morality enshrined in our paternity law statutes.  (Having said that, I would have loved to hear what the mother had to say.  In my one case on this subject, the mother had thought my client was at birth and agreed with us that he could not be the father - only the court decided that ordering a paternity test was a bad idea.)

NJ Family Issues Blog has the shortest blog post I have seen on this issue and with the most devastating point being made:

DNA testing provides answers — BUT, are you ready to deal with those answers?

With Who's Your Daddy? One Pillar of Darwinian Psychology I had little hopes but found a true gem.  For me these paragraphs explain why men sign paternity affidavits and do ask for a DNA test in a way that lawyers cannot explain well enough (maybe it is that our brains are too tied to the rules of evidence?).

Men know that they are fathers because their wives say that they are and because they believe their wives.

Fatherhood must involve trust. Until recently it was impossible to verify. It was impossible to say that paternity was an objective fact; it always retained the possibility of being a fiction.

Men just do not want to offend the woman who says they are the father. I add especially when that woman has just delivered a baby.  I have been wanting to say that for a long time.  Thanks to Had Enough Therapy? blog for giving me a basis to do so.

After reading the New York Times article, I watched the move And There Will be Blood.  I was struck by how the movie dealt with a very twisty relationship between a father and a son that echoed the sentiments of the article.  It also seemed to have something to say about the differences between blood kin and those that call themselves brothers.  Then, too, maybe it was an overripe imagination on my part.

International Parental Abduction

I get a bit more worried about parents removing a child out of Indiana, so I find the idea of a parent leaving the country with a child exotic.  Which might explain why I find Ohio Family Law Blog's Parental Abduction: Prevention and Remedies so interesting.  Better to be prepared for the day with this kind of advice:

During custody litigation where one parent is a foreign national, even if a U.S. passport has not been issued for the child, the U.S. parent’s attorney should ask that the other parent turn over ALL passports, including any obtained by the foreign parent from his/her country of origin.  In a recent case in California, the mother actually had six passports for the child: One current and two expired U.S. passports plus a “pair and a spare” from her country.  Considering the risk in all of the scenarios involving a U.S./foreign national custody issue, the next step is to request a bond be ordered by the court, revocable even if the parent crosses a state line without permission of the court.  The attorney must be well prepared for arguing this issue since many judges will simply call it “anticipation of a crime” and act accordingly, thus essentially aiding the foreign parent’s plan.

The custody order itself must not provide for shared parenting, but rather sole legal custody to the U.S. parent.  “Shared or Joint” can be loosely interpreted and many foreign consulates consider it to mean that their own citizen has an equal right to remove the child.  This does not interfere with any particular parenting time plan, just firmly vests the legal status in the U.S. parent.  If the foreign national parent chooses to move to another jurisdiction, then all parenting time with that parent should be required to occur in the home jurisdiction.  While many may consider this harsh, it is far less harsh than losing a child to a foreign country, with no hope or at least very little hope of recovery.

For those with an interest in international law, I strongly suggest reading The International Family Law blog.

Taking credit cards, payments is news?

Struggling South Florida Divorce Lawyers Offer Discounts, Accept Credit Cards came to me earlier this week from The ABA Journal. I cannot remember when I did not take payments - or of any lawyers in my area who did not do likewise.  I have been taking credit/debit cards since last year.  (Yes, there are some who will not or do not take credit cards but I put that down to the cost to the lawyer of providing this service). 

Life differs greatly between south Florida and central Indiana:

The story says lawyers are trying to lure clients with these options:

• Pacheco Perez Ortiz in Miami charges sliding-scale fees, and offers a payment plan: pay half now, and pay half later.

• Aventura attorney Charlotte Karlan offers 20 percent discounts for the military, and case-by-case discounts for others. “This is the worst I've ever seen business,'' she says. She has practiced for 25 years.

I am considering changing my published fees to make my positions on divorce and child support/visitation fees.  Especially since I have begun to offer unbundled fees.

Financial Declarations: Vanderburgh County, Indiana

I do not go as far afield as Vanderburgh County (Evansville) but only include this for comparison sake as I am working my through the local rules of our 92 counties.  Those interested in how the different counties deal with financial declarations may want to take a look at Fayette County Local Rules: FINANCIAL DECLARATION FORM and Financial Declarations:  Madison County, Indiana.

Vanderburgh County 's Financial Declaration comes in Microsoft Word instead of PDF format and is found here.

LR-82-FL-00-4.13
Financial Declaration Form

A. Requirement. In all relevant family law matters, including dissolution, separation, paternity, post-decree and support proceedings and excepting Rule 4.05(E) hearings, the parties shall simultaneously exchange a Financial Declaration Form seven (7) days prior to any contested hearing and a copy of the same with a green paper cover sheet shall be filed with the Court on the date of the hearing (See Appendix B). These time limits may be amended by Court order for good cause shown.
B. Exceptions. The Financial Declaration Form need not be exchanged if:
1. The parties agree in writing to waive exchange;
2. The parties have executed a written agreement which settles all financial issues;
3. The proceeding is one in which the service is by publication and there is no
response; or
4. The proceeding is post-decree and concern issues without financial
implications. Provided, however, when the proceeding is post-decree and
concerns only an arrearage, the alleged delinquent party shall complete the
entire Form, which the support recipient needs to complete merely that portion
thereof which requires specifications of the basis of the arrearage calculation
(with appropriate supporting documentation).
C. Admissibility. Subject to specific evidentiary challenges, the Financial Declaration shall be admissible into evidence upon filing. The submission of the Financial Declaration Form shall not prohibit any other relevant discovery permitted under the Indiana Trial Rules.
D. Financial Declaration – Mandatory Discovery. The exchange of Forms constitutes mandatory discovery. Thus, Ind. Trial Rule 37 sanctions apply. Additionally, pursuant to Ind. Trial Rule 26(E)(2) and (3), the Form shall be supplemented if additional material becomes available.

News: Governor Appoints DCS Ombudsman

A bit old but still worth noting is Governor names first DCS ombudsman

An Indianapolis woman with nearly three decades of experience working in child welfare, social work, and family counseling has been named the state's first Department of Child Services ombudsman. Gov. Mitch Daniels announced the selection Nov. 13.

Susan Hoppe, who has spent the last nine years as a social worker with Marion Circuit and Superior courts, will start in the new role Dec. 14. The position of ombudsman was created during the 2009 legislative session and will be an independent evaluator in the safety and welfare of children in the state.

Some Serious Thoughts on Cohabitation

The following comes from Marilyn Stowe, who practices family law in England.  Yes, the subject directly concerns English law but I feel the broader argument applies as well to Indiana.  Indiana protects the children of cohabitating couples but not their property.

There are literally thousands of women (if the number I see in my office is multiplied across the country) materially disadvantaged by a breakdown in their relationships (and which also impacts on their children) who, unlike Baroness Deech, do not have her powerful brain, nor her opportunities in life. They do not enjoy a life of luxury and privilege, whether they live with their partner or not.

These women are literally left homeless, without income, capital or pension. They may have lived with their partner for the last 30 years. They may have raised children who have grown up and moved away. Or the relationship may be shorter and the children may still be living at home. Their partner may have all the income and capital in the family locked up in his own name. And the woman discovers that she can be traded in for another, for far less than even the cost of a cheap second hand car. She can be traded in for nothing at all.

These women have no financial remedy to save them from the economic loss they sustained as a consequence of the cohabitation, and they and their innocent children are frequently left to fall back onto the State – the very thing Baroness Deech protests that she seeks to stop. Why should that be? Why should the other partner simply walk away with no obligation at all having had the entire financial benefit of the relationship for all the years beforehand? Why should her contribution as a homemaker count for nothing as a cohabitant – when exactly the same contribution counts as equality with the breadwinner on divorce?

New Divorce and Family Law Blogs

Bankruptcy and divorce, two subjects existing closer than will please many is the subject of The Interplay Between Bankruptcy and Divorce Law in Virginia. Not exactly a zinger for a blog name but spot on accurate for its content.  The posts concentrate on Viriginia, naturally.  Which does not mean it lacks value for Indiana - just check its bankruptcy reports against our Seventh Circuit.  (I do not expect many differences but what differences exists will probably be significant.)

I found interesting what differences exist between Indiana and Virginia in its Top Ten Costly Divorce Mistakes to Avoid During a Recession (as well as good points for Hoosiers, too):

1. Adultery may eliminate spousal support in Virginia.

Even if our temporary maintenance equals their spousal support, there is no support for this in our statute.  On the other hand, I think our economy and the closeness of income between parties makes maintenance (temporary or otherwise) difficult to get.  For more on Indiana maintenance go my archived articles.

2. Be aware of formulas and guidelines for determining support in Virginia: child support guidelines are the presumptively correct starting point for support; pendente lite spousal support: w/child – 28/58%, w/o child – 30/50%.

This is true for Indiana, too.  Diverting from our Child Support Guidelines means having a very good reason.

3. Alimony: request it, reserve it, or lose it.

Not got alimony in Indiana but maintenance we do have.  Request a provisional hearing and ask for temporary maintenance and save permanent maintenance for the Final Hearing.  But go back and see my comment to 1.

4. You have 2 years to file for an annulment and you may lose your right by cohabitation after knowledge of the facts.

Looks like annulment may be as hard to get in Virginia as in Indiana.  Cohabitation is also a defense in Indiana.  This did point out to me that there is no explicit statute of limitations for annulment in Indiana under the Indiana Code (and certainly none mentioned in any of the available cases).  I suppose that our general statute of limitations on fraud may apply.  For more about annulment in Indiana, follow this link to the annulment articles archive.

5. Do not delay the filing of a motion to modify support upon a material change in circumstances.

Damned good advice.  This applies everywhere.  Even when there is not a recession.  Do not say that you cannot afford a lawyer - find one that will unbundle services or one that takes payments.  Getting behind in your child support means contempt, which can mean jail.  You figure out which is cheaper - a lawyer or jail time.  For my articles on contempt, go here.  For my atricles on attorney fees go here, and for child support articles follow this link.

6. Judges are hostile to the concept of separating under the same roof in Virginia.

Never seen this problem in Indiana.  Especially locally with our post- General Motors economy, judges can have no problem with two people living together who do not want to be married any longer.

7. A suit for a divorce from bed and board can be filed immediately in the Circuit Court. You may be able to obtain pendente lite relief for temporary support, attorney’s fees and costs, protective orders, temporary custody and child support, exclusive use of the marital residence, or a freeze on assets.

Take out the "from bed and board" and add after Circuit Court "or Superior Court", and  take out "protective orders" and , and you have a good description of what Indiana courts can do.  Protective orders need filing separately here.  I have an arichive of my aticles on our courts and an archive on protective orders.  I put in these links so that more specific information is can be gotten to, please use them to get at this information.

8. Consult with your tax advisor concerning the tax consequences of spousal support, allocation of the dependency exemption, exclusion of gain from sale of marital residence, etc.

Another good idea that applies here as well as Indiana.

9. Be careful about leaving the marital residence without a separation agreement.

I do not think this is as a lethal in Indiana as it appears to be for Virginians.   That any agreement is a good thing, I will not deny.

10. Consider the possibility in your agreement that one spouse may file for bankruptcy relief.

Always, always consider the fact of bankruptcy.   Maybe it is all my years when I did practice consumer bankrutpcy law but I am a bit surprised by lawyers who do not think of bankruptcy.

McLean County Divorce comes from Illinois lawyer, Jon D. McLaughlin, with me having a bit of concern over the two months from his last post.  However, Hoosiers still might learn from his Change of Child Custody and Simple Divorces (we have a better procedure here). I have some quibbles with his Suggestions for Fathers going through a divorce but on the whole, it is a good collection of suggestions for Indiana fathers.  Let us hope that Mr. Mclaughlin continues to publish his blog.

Okay, it is Canadian but Collaborative Practice Canada does a more than adequate job of promoting colllaborative law.  I cannot say that anything specifically applies to Indiana but that has is not quite the point either.  If the general public wants a less adversarial approach to family law cases, then the general public needs to know that an alternative not only exists but why it is preferable.  That said, give a look at Collaborative Law - in the interests of families and children..


 Another family law blog, this time from California's Orange County.  Hence the name being Orange County Family Lawyer Blog. It looks fairly new but the articles are clearly written and succinct.  Still fairly new and may interest those who want to contrast Indiana's courts with another state.

Reading Around: Divorce Stats, Texting, Foreign Laws on Cohabitation

Think before you text, read She may walk in beauty, like the night…but don’t text it from Family Law Prof for more on why not.

45% chance of a first marriage ending in divorce - so I learned from Domestic Diversions' What’s my chances of getting a divorce? Statistical factors associated with divorce.

Since I cannot figure out how to categorize Online Assessment Tools – Do You Think You Might Have a Problem? from The Ohio Law Blog, I am putting it here. Check it out.

From Family Law Prof blog a notice about new cohabitation legislation: Australia Passes New Legislation affecting De Facto Couples.

More Dads Getting Child Custody

Thanks to Family Law Prof for something I missed - a  New York Times article on more fathers getting custody of their children.  I am naturally skeptical about anything that tries to generalize about 2.2 million people scattered across 50 states.  Then when I reached the New York Times, I learned it was a blog post commenting on

Reading the comments to the comments I was struck by two things.  First being the number of people who toss around unfitness of the parent.  Unfitness of the parent is not the standard in Indiana for a parent-to-parent custody case.  The standard here is best interests of the child - the parent does not need to be unfit.  Unfit means a truly terrible parent.  In a parent-to-parent case, unfitness means a rather simple case.

The second thing was this comment that captures most of my experience up to a few years ago and signals to me a true change for custody cases:

It's not a raw deal at all - it is an expected, and welcome, shift (FWIW I am a mother).

Now that family courts can see that the father has been, and can continue to, provide the day to day and minute to minute care that a young child needs, in 1/2 the cases, he is getting custody. Which is a break from the past where fathers who contested for custody oftentimes were mostly trying to avoid child support payments, and it was clear to the court that the child would be raised largely by a grandmother or aunt or even daddy's-new-girlfriend. Now that fathers have a different role, they have a credible case to make.

This is a sign of progress.

The cases where I have gotten custody for a father after a contested hearing involved mothers who showed poor judgment, a desire to have "fun"  and some involvement in drugs.  The fathers put their children's interests ahead of themselves (which, for me, is the essence of best interests of the child).  Then, too, the fathers had the backbone to fight for custody.

On the other hand, I defended a mother who was struggling to make ends meet, had had to move three times in the preceding year (usually a sign of instability which our courts do not think is in the children's best interests) against a father who tried very had to remove the child from Little League baseball (which the child loved) and who claimed that the child's baby teeth were rotting in his mouth (although his own witnesses testified to not noticing any problems with the child's teeth).

Reading the original article, Custody Lost, I am really struck by how much of its discussion focuses on the amount of time is lost to work.  I did have a Delaware County case this year where mother lost her job and the judge considered that against her as custodial parent.  Indiana's economy has been so bad for so long that  I think we are all accepting that both parents have to work just to make ends meet.  So I am a little confused with these statements:

As progressive as we think we are, the courts haven’t fully grasped the many roles of working mothers. “Culturally embedded attitudes and roles are hard to change,” maintains Diana Dale, founder of the Houston-based WorkLife Institute. “Sometimes it takes three or four generations to make the attitude and behavior shifts.”

Today’s working women still face pressure to function in the traditional mother mode—even after a day at the office, says Ken Neumann, PhD, a New York City psychologist and divorce mediator. “Working mothers have a really bad deal because they have to do everything,” he says. “We don’t put that kind of pressure on men except in unusual circumstances.”

I would prefer to think that we have come to realize that the sex of the parent does matter in a custody case, that some women just as some men have no business having complete control over the raising of their children.  In short, that we look first at what the children need and then at how each parent can contribute to meeting those needs.  That men can meet those needs appears to be as well recognized when properly presented to a judge.  Therein may lie the real story:  that men bring their lawyers good cases who present those cases properly to a judge.

Mind that most of the discussion here has been about contested custody cases.  Settlement can be a good idea if the reason for settlement is the best interests of the child and not from fear.  This paragraph from Custody Lost provides a good insight into my meaning:

Many of us are looking at custody the wrong way, maintains Barbara Glesner Fines, a noted law professor at the University of Missouri–Kansas City School of Law. “The question shouldn’t be ‘How can I get or win custody?’ but rather ‘How can I make sure this re-formed family will function in a way that is good for the kids?’ Divorce is just the beginning of a lifetime of parenting your children with this other person. You’ve got to make that work.”

Finally, more might be learned from another New York Times article, Fathers Gain Respect From Experts (and Mothers). Thanks to Domestic Diversions blog for writing this up (and I do suggest that anyone reading this, go to Domestic Diversions and read the comment to its post. Lots of wisdom in one short comment.)

More About Community Property and Common-Law Property

I found Questions and Answers about Property Ownership During Marriage in Missouri written by Professor Barbara Glesner Fines of the University of Missouri - Kansas City School of Law which does a very good of explaining the differences between community property and common law property states (Indiana is in the latter).

For a California perspective, you might want to read 'Community property' can have a very broad meaning, especially here in California. from Orange County Divorce Lawyer Blog.

My own explanation is here.

Stories like California Court Rules that, When a Child Support Obligor Remarries, in connection with a Motion to Modify the Court Should Consider 50% of the Income from Community Property Assets make very happy not to be in a community property state.

A Heads Up for The Indiana Custodial Rights Advocates

I received this notice last week and thought it worth passing along on here:

Meet Your Legislators

Earlier this week representatives of Indiana Custodial Rights Advocates went to Organization Day at the Indiana State House.  We met with legislators and continued to solidify support for Shared Parenting concepts.

The General Assembly will convene again for the first day of the 2010 session on Tuesday 05 January 2010.  We would like to give you the opportunity to join us and personally meet your local Representative or Senator if you would like.  Use this link to find you local legislators. http://www.facebook.com/l/bdd89;www.boonecountyfathers.org/legislativeactivities/yourlegislators.html

Legislators are very limited in the number of bills they can offer during this short session.  It is important that we make our presence known, especially on this first day.  We hope you will be able to join us in helping make Indiana a more child-friendly state.

Please put the first Tuesday of the year on your calendar to come join us at the State House.  Our next organizational meeting is Monday 21 December 2009 at 7:30pm in the Marrott.  The Marrott is located at the intersection of Fall Creek and Meridian Streets in Indianapolis.  Use this page for our latest news and a map for the Marrott. http://www.facebook.com/l/bdd89;www.boonecountyfathers.org/home/latestupdate.html

I have made this point before and will repeat myself:  if you do not like Indiana's laws on divorce (or child support, custody or whatever point of family law bothers you), then you need to take the problem to the Indiana General Assembly.

Financial Declarations: Madison County, Indiana

For those wanting a copy of the Madison County Financial Declaration can go here.

 As for our Local Rule governing Financial Declarations, it follows.  It might be worth comparing this to the Fayette County Local Rule that I wrote about in Fayette County Local Rules: FINANCIAL DECLARATION FORM.

Truthfully, I think all of us miss a few points on applying the rule such as attaching the pay stubs) but they are generally admitted without them.

LR48-FL00-17 FINANCIAL DECLARATIONS/SUPPORT WORK SHEETS

Financial Declarations on forms adopted by the Court and Indiana Child Support worksheets shall be completed in full, dated and filed prior to trial in all contested matters involvingchild support or disposition of assets. Financial Declarations, with current pay stub attached,shall be filed with the Court two (2) days before any preliminary or final hearing. Child support worksheets shall be filed with the Court on the hearing date. Absent objection, the financial eclaration shall be considered as received in evidence subject to cross-examination. Direct examination on matters in the financial declaration shall be confined to unusual items or factorsrequiring explanation or correction.

Insight into lawyering - family law division

Marilyn Stowe takes an issue that I find devilishly hard to write about and brings the point home with great clarity in her Fleetwood Mac and a divorce lawyer’s Rumours.

Many clients begin their meetings with me, assuming that what I am about to hear is new. It isn’t. I’ve already heard the account of the breakdown of their marriage or relationship, over and over again. Different faces, different people – but fundamentally the same story. What is interesting is that when a relationship does break down, the parties don’t always have the same tale to tell. One will blame the other. One may blame a third party. The other may say it wasn’t the third party. Perhaps he or she will insist that the relationship has simply run its course.

***

For me, as a lawyer who listens to both sides of such stories daily, these songs remain as relevant today as they were thirty years ago. They remind all of us that we are human and fallible.

Here are two different beliefs, genuinely held, as to what has gone wrong. Probably there is a whole lot more that could be said, about why this relationship ended as it did.

I would add only two thoughts.

My job as a lawyer is to evaluate the client's story and, as pointed out above, there are a limited number of stories.  The story needs evaluation against the law.  Then the issue becomes how best to advocate that story.

I would also point out - as I seem to be doing quite often to clients nowadays - that this also applies to judges.  I hear a lot of stories and so do judges.  I had a support hearing this month where father was telling a quite outrageous story.  My client boiled with worry at what she was hearing.  I think she - like many others - do not understand the judge's job is to judge - take both stories and weigh them.  In this case, the judge ordered father to do what he was supposed to do by January 15 or go to jail.  The clients worries were for nothing.  (Tip: listen to watch a witness says but watch the judge closely).

Attorney Fees: Why Free is Not Always Free

Following up a bit on my post on consultation fees, I want to talk about free.  In the past year there has been made much of making money off of free.  Chris Anderson's book Free pushed this idea and made it sexy.  My understanding of the idea may be an oversimplification but is that this is a rehash of the idea of loss leaders. This blog represents - to me - what Mr. Anderson was talking about.

I also have another idea in my head that opposes Mr. Anderson's ideas.  That idea is there is no such thing as a free lunch.  The best, longest explanation I found years ago in Robert Heinlein's novel The Moon is a Harsh Mistress.  Or this variation;  you get what you pay for.  For some clarity, you should also read Binary Law's Free - radical or not?.

Those of you seeking a free lunch (and who actually does not) need to consider just what you are getting for free.  Taking this blog as an example, you get free information but this is not all the knowledge that is in my head.  Those not seeking education will find this blog (and every other one) seriously lacking in content.

You consumers of legal services also need to know what you getting.  With family law cases, you are not getting only litigation but knowledge purchased with experience.  I had an experience last week that I want to discuss on its own but some points cna be made here.  At a minimum, litigation requires witness preparation, getting familar with the documents in the case, learning the facts and not just showing up at court.  Just showing up and not knowing the facts of the case brings to mind George Armstrong Custer and the Little Bighorn.

On the other hand, lawyers need to consider what we do in these days of the Internet. Law21.ca has a very good article, Free and the GP, discussing all these points but here are what I thought were the highlights:

Interesting as all this is, what does it have to do with the legal profession? Potentially, a great deal, as some legal bloggers have noted. Carolyn Elefant and Doug Cornelius both point to innovative new offerings from two well-known US law firms: Wilson Sonsini has set up an online term sheet generator, while Orrick has created a start-up forms library on its website. Both of these products (or are they services?) are entirely free, to anyone (client, non-client, other lawyer) who wants to use them. They’re also products from which these firms and others have traditionally made money. “But there’s a method to Orrick’s apparent madness,” Carolyn writes:
Orrick’s freebies help it capture a segment of the market which either couldn’t afford to hire Orrick or if they could, would not have been worth Orrick’s time. Consider the example of a small business — typically the type of client outside of biglaw’s demographic. The business might download and fill in Orrick’s incorporation form and then say to itself “I’ve already filled out the data. How much could it cost to pay an Orrick attorney to look this over?” Likewise, Orrick could charge far less to eyeball a completed form which it prepared itself than if the firm were to begin the incorporation from scratch (in which case, it would have to invite the client to the office, interview the client, gather the data and prepare the incorporation papers).

***

Giving away something for free or ultra-cheap in hopes you’ll entice users to buy your other services is not a new phenomenon, even in law: smaller firms have been using items like wills as “loss leaders” for years. What’s significant here is what’s being given away.

Legal forms aren’t matchbooks or Bic pens — or at least, they didn’t use to be: they were once important elements of the lawyer’s inventory that required a lawyer’s skills. The fact that they’re now customizable and downloadable on the Net tells us that the skill to produce them is now available widely. That implies a lack of scarcity and a consequent inability to charge much of a price. Legal knowledge, as Doug points out, is already being given away free by law firms; now, it appears that legal processes like document creation are following suit.

Again, I do not do free consults.  What fees I do charge are directly related to what your case needs done.  I will be discussing those in the next few days.

Since I wrote the above, I ran across Law Firm Price Wars Break Out as Some Try ‘Loss Leader’ Bids for Work from the ABA Journal.  This is not good news really - at some point the lack of income will cut into services.

Updating New York Times Rips on Paternity Laws and DNA

When I hit publish post on News:  New York Times Rips on Paternity Laws and DNA, I had not reached the last page of the article.  Having now done so, I think here is a solution that I could live with:

Three and a half years earlier, at a federally convened symposium on the increase in paternity questions, a roomful of child-welfare researchers, legal experts, academics and government administrators agreed that much pain could be avoided if paternity was accurately established in a baby’s first days. Several suggested that DNA paternity tests should be routine at birth, or at least before every paternity acknowledgment is signed and every default order entered. In 2001 the Massachusetts Supreme Judicial Court urged the state to require that putative fathers submit to genetic testing before signing a paternity-acknowledgment form or child-support agreement, arguing that “to do otherwise places at risk the well-being of children.”

In other words, the same care that hospitals take ensuring that the right mother is connected to the right newborn — footprints, matching ID bands, guarded nurseries, surveillance cameras — should be taken to verify that the right man is deemed father.

Mandatory DNA testing for everyone would be a radical, not to mention costly, shift in policy. Some advocates propose a somewhat more practical solution: that men who waive the DNA test at a child’s birth should be informed quite clearly that refusing the test will prohibit them from challenging paternity later. Yes, the plan would reveal truths some men might not want to know. Yes, it would raise administrative costs, lower the number of paternity establishments and blow apart some families. But far fewer children would be entangled in traumatic disputes in which men they call Daddy suddenly reject them.

Now the question is how to convince the Indiana General Assembly?

Getting Ready for Holiday Parenting Time

The Ohio Family Law Blog has good advice for planning holiday visitation in Planning Parenting Time for the Holidays – Tips to Follow.  Overlooking the specific Ohio things (seems they have county parenting time rules versus our state rule), the article contains good sense.  Remember that the parenting time is for the children.  Forgetting this may lead to time spent at the courthouse - and how much fun is that?

With Thanksgiving now jsut a few days away, you may also want to check out The Ohio Family Law Blog's Your Thanksgiving Doesn’t have to be a Turkey!

Everyone knows how depressing the holidays can be without the added pressures of post-divorce stress, and Rosalind Sedacca has an article about dealing with depression.  Go read this.

News: New York Times Rips on Paternity Laws and DNA

Today's New York Times' published Who Knew I Was Not the Father?.  For some reading me, this is not really news - I have been reporting on the problems with Indiana and its paternity affidavits for quite some time (check out the archive for my paternity articles).

The Times article points out the problem here (although they get it wrong using birth certificate instead of paternity affidavit but so do most of my clients and potential clients):

Once a man has been deemed a father, either because of marriage or because he has acknowledged paternity (by agreeing to be on the birth certificate, say, or paying child support), most state courts say he cannot then abandon that child — no matter what a DNA test subsequently reveals. In Pennsylvania and many other states, the only way a nonbiological father can rebut his legal status as father is if he can prove he was tricked into the role — a showing of fraud — and can demonstrate that upon learning the truth, he immediately stopped acting as the child’s father. In 2003, a Pennsylvania appellate court bluntly applauded William Doran — who had been by all accounts a loving father to his 11-year-old son — for cutting off ties with the boy once DNA showed they were not related. The judges found that Doran had been tricked by his former wife into believing he was the father of their son, and he was allowed to abandon all paternal obligations.

Courts, of course, deal with paternity cases only when there is a legal dispute. Many men don’t sue because it is expensive or because they suspect they will lose anyway. And then there are those who never even discover the biological truth. How many fall in that category is impossible to quantify. The most extensive and authoritative report, published in Current Anthropology in 2006, analyzed scores of genetic studies. The report concluded that 2 percent of men with “high paternity confidence” — married men who had every reason to believe they were their children’s father — were, in fact, not biological parents. Several studies indicate that the rate appears to be far higher among unmarried fathers.

The article is very long but I cannot do anything but recommend it.  I will point out this is not just an Indiana problem but a national problem.  It is also a problem that needs a legislative solution - the judges have their hands tied by the legislature in making any changes.  About a legislative solution, the article gives an idea that I was unaware of:

The law that Smith helped to pass in Georgia, like a similar one in Ohio, sets no time limit on using DNA to challenge paternity. The premise is that a man shouldn’t be punished for entering a paternal relationship that he would have avoided had he known the truth. It is, Smith says, a correction to a double standard that allows mothers and caseworkers to use DNA to prove paternity but prohibits men from using that same evidence to escape its obligations. But child-welfare experts counter that a child shouldn’t be punished by losing the only father she has ever known — or the financial security he offers — just because he’s upset that she doesn’t share his genes. In 2002 the National Conference of Commissioners on Uniform State Laws — an influential body of lawyers and judges that proposes model laws — drafted a compromise. The proposal would allow the presumed father, the biological father or the mother to challenge the paternity until a child turns 2. The proposal had two goals: to balance the rights of children with those of their presumed fathers and to encourage parentage questions to be raised early in a child’s life, before deep bonds are formed. Several states, including Delaware, North Dakota, Oklahoma, Texas, Utah, Washington and Wyoming, have adopted that model or a variation of it. But men’s rights groups complain that most putative fathers don’t discover the child isn’t theirs until after the two-year window closes — at which point, they have little or no recourse.

I think I should point out that the article delves into the other side of the equation - the effect on children. In this regard, I suggest reading Montana Supreme Court Recognizes Parental Interest in Non-Biological De Facto Parent and Leonard Link's Montana Supreme Court Affirms Parental Rights and Property Settlement for Lesbian Co-Parent.  There is an Indiana opinion or two recognizing a step-parent's right to visitation - or so I recall - that bear a resemblance to the Montana case.

Fayette County Local Rules: FINANCIAL DECLARATION FORM

Most counties have some sort of requirement for a financial declaration.  The Connersville judges have created the following Local Rule which is a bit more detailed than other counties.  Note that this Rule makes appraisals and the actual Financial Declaration mandatory discovery.  In other words, getting this information does not require filing a Motion to Produce.

I still am not so sure that we (that is the lawyers and the judges) really know how to use these financial declarations for anything but impeachment (impeachment being how we lawyers undermine a witness' credibility).  Last month, I had the unfortunate experience of seeing an opposing attorney take apart my client with the use of a financial declaration and his income tax returns.  Hint:  honesty is the best policy - honesty with your lawyer and honesty on tax returns. Regardless of how hard I tried, I could not convince the judge that what appeared a scam by my client was actually ignorance and haste.

I wish I had a better handle (or more time) to translate one of these financial declaration forms into a spreadsheet - that might make them more useful for dividing property in a dissolution of marriage case.  Anyone want to take the hint?

The actual Rule follows and you can find the form by following this link

Fayette County LR21-FL00-FL-6

In all relevant family law matters, including dissolutions of marriage, separations, post-decree and support proceedings, the party filing the petition/motion shall provide to the opposing party or his or her legal counsel, if applicable, a fully completed Financial Declaration Form with all required attachments within forty-five (45) days of the filing of such petition/motion.  The opposing party shall provide to the petitioning party or his or her legal counsel, if applicable, a fully completed Financial Declaration Form with all required attachments within fifty (50) days of the filing of the petition/motion.

The Financial Declaration Form need not be exchanged if: the parties agree in writing within fifty (50) days of the filing of the petition/motion to waive exchange;  the parties have executed a written agreement which settles all financial issues;   the proceeding is one in which the service is by publication and there is no response;  the proceeding is post-decree and concerns issues without financial implications; provided, however, when the proceeding is post-decree and concerns an arrearage, the alleged delinquent party shall complete the entire Form, while the support recipient need complete only that portion  which requires specification of the basis of the arrearage calculation (with appropriate supporting documentation); or,  the Court otherwise waives such requirement. Subject to specific evidentiary challenges, the Financial Declaration Form shall be admissible into evidence. For the purpose of providing a full and complete verification of assets, liabilities and values, each party shall attach to the Financial Declaration Form all information reasonably required and reasonably available.  This shall include recent bills, wage and tax records, bank records, pension and retirement account information, and mortgage account records.  The term "reasonably available" means that material which may be obtained by letter accompanied with an authorization, but such term does not mean material that must be subpoenaed or is in the possession of the other party.  Appraisals of real estate or personal property, or pension valuations are not required.  However, once an appraisal or valuation is obtained it must be exchanged.  Further, the Court may direct that an appraisal or valuation be obtained, just as it may designate the appraiser or valuator.  The Court may require either party to supplement the Financial Declaration Form with appraisals, bank records, and other evidence to support the values set forth in the Form.

The exchange of financial declaration forms constitutes mandatory discovery.  Thus, Indiana Trial Rule 37 sanctions apply.  Additionally, pursuant to Indiana Trial Rule 26(E) (2) and (3), the Financial Declaration Form shall be supplemented if information changes or is added or if additional material becomes available.  Any additional discovery such as Requests for Production, Interrogatories, or Depositions of the parties to the action shall not commence until the Financial Declaration Form has been exchanged.   Any further discovery shall not seek to obtain information already obtained by the Financial Declaration Form.

Whenever the interest of privacy so requires, the Court may, upon proper Motion, direct that the Financial Declaration Form(s) be sealed until further order of the court.  However, such request(s) shall not be made as a matter of course.  When ordered sealed, the Court Reporter shall place the Financial Declaration Form(s) in a flat manner in an envelope of sufficient size, seal the envelope, and affix a copy of the Order directing that the Financial Declaration Form(s) be placed under seal.  Financial Declaration Form(s) may be withdrawn at the conclusion of the case on such terms as the Court may allow.   Upon the filing of any family law matter referred to in Rule 6(A), the Clerk shall provide to the moving party upon filing and to the non-moving party by service a Notice of the requirement of this Rule.  Such Notice shall be in a form substantially as follows:

You are advised that the moving party is required to provide to the opposing party or his or her legal counsel, if applicable, a fully completed Financial Declaration Form with all required attachments within forty-five (45) days of the filing of such petition/motion.  The opposing party shall provide to the petitioning party or his or her legal counsel, if applicable, a fully completed Financial Declaration Form with all required attachments within fifty (50) days of the filing of the petition/motion.

Failure to timely provide a fully completed Financial Declaration Form with all required attachments may be result in sanctions being entered against the party failing to file the Form.

Attorney Fees: About My No Free Consult Policy

Lat year I decided that there would no longer be free consults in my office.  Part of this came about because I was without a secretary and I was using the initial telephone call to decide if it was worth having the potential client come into the office.

Underlying my policy are several concerns:  1) a free consultation means my other clients are subsidizing the time I spent discussing a new case and 2) it sorts out the clients who lack the funds and the seriousness to take on as clients.

Divorce Discourse posted Free Consults? makes legitimate points in that post.  Taking care of lead generation is a good thing that I accomplish on the telephone rather than stopping all work on other cases for evaluating a possible new case.

I find most potential clients view consultations in one of three ways:  1) a way to get free information; and 2) as a beauty contest to see if they want to hire the lawyer; and 3) a way to save money.  I think aiding the potential client in number 3 is aiding in a fraud - the time spent on a free consultation has to be paid some way and if not up front then later.  About getting free information, see what I wrote above about my other clients subsidizing the potential client.

About beauty contests, I think that the attorney-client relationship is a partnership where both sides need to get along with one another.  I cannot remember the last time I turned down a case after a telephone interview and a paid consultation, but I came close this past month.  Luckily, the potential client got enough information that they did not come back.

I also had a recent contact who seemed worried that I might not take their case after they paid my $75.00 consultation fee.   As my secretary said, if they cannot afford the consultation fee then they cannot afford the fee for a custody case.  I will add that those clients who cannot pay their bills force my other clients to subsidize their cases in time and money and that is just not fair to my other clients.

to all this I would add the following from Dick Price from his post Why Is There No Free Consultation?:

For potential clients who have trouble understanding why they should be charged for the initial time they visit with an attorney, here are some explanations some attorneys use.

* For the attorneys who charge by the hour, time is money. They keep their business open by charging for the time they spend working in some fashion on the client's problems. Real information is provided in real time to the client. For the attorney, the service provided is essentially the same type of service they will be providing once they are hired: listen, ask questions, determine needs or goals, gather information, analyze, strategize and create plans.

* Other professionals routinely charge for their time and services at an initial assessment. This includes doctors, mechanics and electricians (just to name a few). The time and skills of the professionals are being applied to the problems at hand.

* For the attorneys who practice what is called value pricing, or use flat fees, they focus on the valuable information, forms and other paperwork they may provide the client. They also add value by listening and counseling with the client. Here is an example on the higher end of service and a corresponding higher fee: There is an attorney in Calgary, Canada who has developed an excellent product for the initial conference. He spends as long as the client wants, usually 2 to 3 hours, records the session and provides a copy of the recording, and produces a customized approach to the client's issues. Other attorneys provide a less robust experience, but nevertheless provide excellent value to the client just by doing the same things some attorneys do as they charge by the hour.

* In addition, when an attorney meets with a prospective client, the attorney becomes immediately disqualified from representing the spouse. That can result in a loss of income for the attorney.

* Another consideration is that the attorney is unable to work on other clients' business when they are attending an initial meeting with a potential new client. That means less income for the attorney and no progress on the other client's issues. Even if it only delays the work, the delay can become a problem for the client and then the attorney. Most clients prefer not to be put on the back burner. They want their matter resolved NOW!

There is not anything on that list that I do not think is a legitimate reason against free consultations.

I realize much has been lately of how free can make money.  I will be discussing this further but posts like Free and the GP from Law21.ca gives a good overview the issue for law firms.  This blog recognizes the idea but the line has to be drawn at responsibility for my clients.

For those wanting free consultations, I have the following advice:

1. Know what you want from the consultation: case evaluation, free information, education.
   
2. Realize that e-mail can never get the details necessary for making a good evaluation of a case.
3. Call to find out who does and do not do free consultations.

Local Rules: Fayette County defines “reasonable visitation”

Long before the Indiana Parenting Time Guidelines some judges would order "reasonable visitation" without ever defining reasonable visitation.  The general interpretation followed the definition below in the first sentence.  Not that this did not generate lots of litigation over who was and was not being reasonable (one side's reasonableness is the other side's unreasonableness).

Still, I give the Connersville judges credit for putting the emphasis on the parties setting up their own visitation schedule.

LR21-FL00-FL-7

VISITATION ORDERS

The phrase “reasonable visitation” if not specifically defined in the Court’s order is defined as those visitation rights agreed upon between the parties. To the extent the parties cannot agree to the particulars of such visitation, “reasonable visitation” shall be defined as those visitation rights provided for in the Indiana Parenting Times unless the court determines that under the particular circumstances a different visitation schedule is reasonable.

Just Noting Some Blog Posts

Just noting some interesting posts that I wish I had more time to comment on but I think worth reading.

Children & divorce: where do we go from here? By guest bloggers Stephen Hopwood & Andrea Essen. from Marylin Stowe's blog has this:

Well, the unpalatable truth remains that although the Children Act is the best fix for a difficult situation, it will never be as effective as an agreement made by parents who work together for their children. What is more, a recent survey of 4,000 parents and children makes for grim reading. Seventy per cent of parents quizzed cited the child’s welfare as the main priority during separation. However:

• Nineteen per cent of children reported that they felt used, 38 per cent felt isolated and 37 per cent felt alone.
• For 38 per cent of children, the separation meant they never saw their fathers again.
• Many admitted that they had turned to drink and drugs, played truant from school or self harmed.
• Fifty per cent of parents admitted putting their children through an intrusive court process to ascertain access issues and living arrangements.
• Twenty-five per cent of parents surveyed believe that their child was so traumatised by the separation that they self harmed or contemplated suicide.
• Twenty per cent of separated parents admitted that they actively set out to make their partners experience “as unpleasant as possible”, regardless of the effect this had on their children’s feelings.

Woudl that we could have a study like this in Indiana.

Family Law Prof Blog has Georgia Clarifies that Disclosure of Financial Information Is Required for an Enforceable Premarital Agreement.  I cannot imagine any reason for this not to be considered the best practice for Indiana (even if Georgia law itself has no application here).

Also from Family Law Prof Blog are A Divorce Fair? and The Recession's Impact on Child Support.

And I will close with Domestic Diversion's The kids are alright: How children of same-sex couples are doing

What Do You Know About Indiana Courts? Part Two - Trial Judges & Commissioners

If you have read What Do You Know About Indiana Courts?, you have probably realized that
Indiana has no courts dealing specifically with family law cases.

For the most part, our trial judges have their time taken first by criminal cases and then by civil suits and then family law cases.  What expertise exists for family law cases will be found more in the unelected commissioners.


Recently Madison County offered a good example of what we have for judges.  Our long standing Circuit Judge resigned and the Governor appointed a new judge.  The Anderson Herald-Bulletin described the appointee's resume as:

ANDERSON­ — A man whose legal experience ranges from enforcing the law as a state trooper to trying criminal suspects as a deputy prosecutor has been named Madison County Circuit Court judge

***

Pyle said his experience gives him the ability to view cases from the perspective of law-enforcement officers and with an understanding of legal theory. “It gives me a really well-rounded background to be an effective judge.”

Notice the emphasis on criminal matters?  This is how the press presents courts to the public.  However, Judge Pyle played to the same choir when he was sworn in according to the Herald Bulletin's New Judge Pyle vows ‘respect, reliability, results’:

He noted a recent federal stimulus grant of nearly $1 million that will help the courts consolidate and expand problem-solving courts. Drug court, mental-health court and re-entry court are meant to provide alternatives to nonviolent offenders who may benefit more from treatment and social-service intervention than from incarceration.

Recently, someone commented to an older post of mine, What to do if refused visitation? that lead me to think a bit more about judges.  The comment noted how hard it was to get visitation enforced as opposed to child support.  Why should that be?  Remember that our Circuit and Superior Court judges are elected.  For those complaining about our judges should ask themselves - what attracts you to a judicial candidate when you go vote?   If you look upon a trial judge's judge as being about helping the prosecutor prosecute criminals, I suggest that you need to rethink your complaints about Indiana's judiciary.  So long as the public demands judges talk like prosecutors, we will have judges whose interest in family matters is secondary at best.  Judges will talk the talk necessary to get themselves re-elected.

(Added after the first draft.  I noticed Family Law Prof blog published MacDowell: "When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism" that seems - once one gets past the academic prose to actually touch on this issue but from a different direction.)

Indiana Courthouse Tours

Whiule not very complete,Courts in the Classroom > Court History Museum Online does give the broader public a chance to see some of Indiana's courtrooms.

The Indiana Supreme Court is in the process of developing virtual courthouse tours for Indiana's 92 county courthouses, all of which are historically significant, and many of which are aesthetically and architecturally significant. In the coming months, these tours—complete with 360° interactive imaging, still photo galleries, and narrative information about each courthouse—will be published to the Courts in the Classroom website and the Indiana Courts county pages.

Go here to directly access the virtual courthouse tours.

More About Child Custody Evaluators in Indiana

Ryan Cassman of All Things Family Law - Indiana Divorce & Family Law Blog pointed out to me in his comment to my Fayette County: Local Rule on Custody Evaluators that IC 31-17-2-10 and IC 31-17-2-12 would apply throughout Indiana.  Legislation comes to us from the Indiana General Assembly for applying throughout Indiana.  Local Rules are efforts by the local trial courts to build upon the general.

Notice the General Assembly created a mechanism for using custody evaluators but does not fund custody evaluators.  I have the statutes in full below, and follow this link if you want to compare these with the Fayette County local rule.

IC 31-17-2-10

Professional personnel; court consultation; cross-examination

Sec. 10. (a) The court may seek the advice of professional personnel even if the professional personnel are not employed on a regular basis by the court. The advice shall be given in writing and made available by the court to counsel upon request.

(b) Counsel may call for cross-examination of any professional personnel consulted by the court.

As added by P.L.1-1997, SEC.9.

IC 31-17-2-12

Investigation and report concerning custodial arrangements for child

Sec. 12. (a) In custody proceedings after evidence is submitted upon the petition, if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by any of the following:

(1) The court social service agency.
(2) The staff of the juvenile court.
(3) The local probation department or, if the child is the subject of a child in need of services case under IC 31-34, the department of child services.
(4) A private agency employed by the court for the purpose.
(5) A guardian ad litem or court appointed special advocate appointed for the child by the court under IC 31-17-6 (or IC 31-1-11.5-28 before its repeal).

(b) In preparing a report concerning a child, the investigator may consult any person who may have information about the child and the child's potential custodian arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian. However, the child's consent must be obtained if the child is of sufficient age and capable of forming rational and independent judgments. If the requirements of subsection (c) are fulfilled, the investigator's report:

(1) may be received in evidence at the hearing; and
(2) may not be excluded on the grounds that the report is hearsay or otherwise incompetent.

(c) The court shall mail the investigator's report to counsel and to any party not represented by counsel at least ten (10) days before the hearing. The investigator shall make the following available to counsel and to any party not represented by counsel:

(1) The investigator's file of underlying data and reports.
(2) Complete texts of diagnostic reports made to the investigator under subsection (b).
(3) The names and addresses of all persons whom the investigator has consulted.

(d) Any party to the proceeding may call the investigator and any person whom the investigator has consulted for cross-examination. A party to the proceeding may not waive the party's right of cross-examination before the hearing.

As added by P.L.1-1997, SEC.9. Amended by P.L.146-2008, SEC.558.

You may also want to go back and take a look at From Fayette County: Contacting the Custody Evaluator Local Rule.

Fayette County: HELPING CHILDREN COPE WITH DIVORCE

Add Fayette County to the counties requiring a seminar for parents going through a divorce. For the brochure on this program see The Children Cope with Divorce Seminar Brochure.

For those of us in Madison County, notice that Fayette County does not want the children to attend.

LR21-FL00-FL-13

HELPING CHILDREN COPE WITH DIVORCE

A.        Attendance at Class. Before final hearing is scheduled on a petition for Dissolution of Marriage or Petition for Legal Separation in which the parties have minor children of the marriage, each party must attend not less than one session on Helping Children Cope With Divorce.

B.         Location of Class. The sessions will be conducted by Behavioral Health Care Associates, 800 South 8th Street, Richmond, Indiana, 47375, and will be held at their facility.

C. Contact. Each party to the proceeding shall call Behavioral Health Care Associates at 765­983-8079 or 765-983-8085 within twenty days from the filing of the petition for the purpose of registering for the program. Each party shall provide Behavioral Heath Care Associates with the cause number of the proceeding when they place the call or by bringing it with them to the session.

D.        Certificate. The moderator of each session will provide each attendee with a certificate of attendance, which must be filed with the Court’s Clerk prior to the Court’s granting the Petition for Dissolution of Marriage or Petition for Legal Separation.

E.         Payment. Each party is responsible for payment to Behavioral Health Care Associates of the $30.00 cost of that party’s participation. Allowances for waiver of fee will be given upon a good-faith showing of indigence.

F. Children Not to Attend. Participants may not bring children to these sessions.

G. Make-Up Session. Make up sessions will be scheduled at dates and times to be by Behavioral Health Care Associates to accommodate those individuals who haveirreconcilable conflicts with the Wednesday meeting dates.

H.        Waiver. In those limited circumstances where it is clearly apparent that a party’s compliance with this rule cannot be compelled, upon written motion, the Court may grant a waiver of its application.

I.          Clerk to Provide Copies. The Clerk is directed to provide a copy of this rule to all petitioners or their attorneys at the time of filing of any Dissolution of Marriage Petition or Petition for Legal Separation if the parties have minor children, and attach a copy of this rule to such Petitions to be served with Summons.

J. Praecipe for Failure to Attend. If one party has failed to attend the class as required, the complying party may file a Praecipe with the Court requesting that the Court enter an Order requiring the opposing party to attend the class by a date certain or be subject to contempt of court.

News: Indiana County Case Information Online

I only recently noticed All Things Family Law - Indiana Divorce & Family Law Blog's Boone County Court Cases Available Online.  I was not aware of this, so I might overstate this being good news for the general public and lawyers.

What is nto soclearform the orignalpostis that Indiana's State Court Administration has records for several counties online.  Monroe, Hamilton, DeKalb, Owen, Parke, Floyd, Tipton, Warren, andWashington Counties have their dockets online (think the equivalent of an online Chronological Case Summary).

What Do You Know About Indiana Courts?

Indiana has two broad types of courts:  trial courts and appellate courts.  The appellate courts mean the Indiana Court of Appeals and the Indiana Supreme Court.

Trial courts mean either Circuit Courts or Superior Courts.  The difference between the two is that the Indiana Constitution created Circuit Courts:

Section 7. Judicial Circuits. The State shall, from time to time, be divided into judicial circuits; and a Judge for each circuit shall be elected by the voters thereof. He shall reside within the circuit and shall have been duly admitted to practice law by the Supreme Court of Indiana; he shall hold his office for the term of six years, if he so long behaves well.
(History: As Amended November 3, 1970).

Section 8. Circuit Courts. The Circuit Courts shall have such civil and criminal jurisdiction as may be prescribed by law.
(History: As Amended November 3, 1970).

The Indiana General Assembly created the Superior Courts.

The following sets out the powers of the Indiana Circuit Courts:

IC 33-28-1-2

Jurisdiction

Sec. 2. (a) The circuit court has original jurisdiction in all civil cases and in all criminal cases, except where exclusive jurisdiction is conferred by law upon other courts of the same territorial jurisdiction.

(b) The circuit court also has the appellate jurisdiction that may be conferred by law upon it.

As added by P.L.98-2004, SEC.7.

And here the General Assembly set out the powers of our Superior Courts at IC 33-29-1-4:

Sec. 4. The judge of a standard superior court:
(1) has the same powers relating to the conduct of business of the court as the judge of the circuit court of the county in which the standard superior court is located; and
(2) may administer oaths, solemnize marriages, and take and certify acknowledgments of deeds.
As added by P.L.98-2004, SEC.8.

No practical difference exists between the two.  Notice that both courts have criminal jurisdiction. Criminal cases take precedence when it comes to scheduling cases and they will be heard by the judge.  Which may make clear why most family law cases are not heard by the elected judge but by a commissioner appointed by the judge.

A few counties have created family courts.  However, it does not appear that these family law courts are separate courts but a program in addition to the court's general jurisdiction.  (This is based on my knowledge of Henry County and extrapolating to the other counties listed as having family courts).

None of the above applies to juvenile courts which have jurisdiction over paternity cases.   Marion County is the only county I am aware of that has a court denominated for paternity cases only  Even then it is part of the Marion County Circuit Court and commissioners preside over the actual court hearings. In other counties, the juvenile court is but a part of a court's regular jurisdiction which means in addition to its civil and/or criminal jurisdiction.  In Madison County, Superior Court 2 is our juvenile court and hears all juvenile criminal cases, CHINS cases, regular civil suits, paternity cases, and dissolution of marriage cases.

The Indiana Supreme Court maintains a Know Your Indiana Courts page that provides more detailed information on how Indiana structures its courts.  You may also want to check out Indiana Code 33-33 which sets out how the Indiana General Assembly organizes the courts in each of our 92 counties.

I will be following this up on the 19th with What Do You Know About Indiana Courts? Part 2.

If You Could Change the Delivery of Legal Service

What would you change?

Are there services you want provided onloine?

Are there services you do not want provided online?

Are there services you would like me to provide that I am not?

How would you like these services provided:  online or not?

Why would you make the changes you listed above?

How would these changes help?

Open forum for my readers - all comments published so long as they try to answer the questions.  This has never really worked by would love to see some response.

I am reading over some tweets in Twitter on a speech given by Richard Susskind  If you have not heard of Richard Susskind (and if you are a lawyer, I suggest you need to know what he is saying about the end of lawyers).  Persoanlly, I agree generally with Susskind but not so sure how it will be accepted by my type of clients - individuals who may not be so tech savvy as the firms which seem the focus of Susskind.

Which is why I am asking the questions above.  I do want to know how people like you would change how well you would accept more collaboration on legal matters (one of Susskind's big ideas) or providing the means to perform your own document preparation online through a service provided by your lawyer.


For more on Susskind, take a look at this and this and this.  Jim Calloway reviews Susskind's 2009 keynote ABA Legal Tech keynote which is where I first heard him.  Carolyn Elefant makes the following points in her Richard Susskind & The End of Lawyers: What It Means for Solos:

Still, while opportunities for solos abound, nonetheless Susskind fears for their future.  He writes:

I fear for the future of very small firms whose work is not highly specialized -- those with a handful of partners or even sole practitoners who are general practitioners.  Unless their clients want to retain them for a highly personalized service, I cannot see how they will be able to compete with alternative methods of sourcing, whether by much larger firms or by alternative providers....

The current model at the Bar -- the self-employed, sole practioner who shares various services with fellow barristers - assumes no gearing,little capacity to multi-source and few mechanisms for hedging against the risks of being a one person band. 

On one level, I disagree with Susskind's predictions.  Just as technology enables us to cut down the cost of legal services while boosting efficiency, it also provides us with the tools to leverage ourselves.  Through use of virtual assistance and outsourcing, we can multi-task and create the precisely the type of  diversification - such as alternative fee structures or ancillary businesses - that provide a hedge against an economic downturn.  Indeed, that's why many of the solos who I know are thriving or at least hanging even as large firms crumble all around us.  Likewise, those solos who provide the kinds of irreplaceable expert niche services are also thriving in the downturn, by providing services in high demand, but at lower costs than their big firm competitors can provide.

Yet as I thought about Susskind's prediction some more, I had to agree to some extent.  Because the solos and small firms whose futures are, in Susskind's view, at risk aren't the ones who are reading this blog or many of the others that have been addressing these trends for several years now (for example, more than four years ago, I identified the pent up demand for low cost consumer legal services and urged lawyers to find ways to deliver them while I anticipated the India outsourcing trend back in 2003).  Some of these firms are so far behind the times, so removed from the 21st century that they can't even comprehend what's happening now, let alone anticipate what's coming.  But that's an inherent problem of trying to effect change through the Internet and blogging and Web 2.0 technologies: at the end of the day, we're really just preaching to the choir.  Perhaps because Susskind's book delivers his revolutionary message in a book the most traditional medium, our potentially endangered solo and small firm colleagues will take notice and listen before it's too late.

Finally and for the non-lawyers, who might wonder what this has to do with them, consider this:  if there are these changes, then who will be providing legal services to you?

Need a Hearing Transcript from Marion County? Form for You.

The Marion County Paternity Court in Indianapolis has paper forms in its court office.  The public can get them if they walk into the court.  Why they are not posted to the City-County website is a question most non-lawyers would have but I suspect whoever is in charge at the Marion Circuit Court just never thought of it.

Which lead me to post the form needed to request a transcript here.

Both Parents and Child Move Out State - What about Child Support

What happens when neither parent or the child now live in Indiana but there is a child support order? Unless the parents do nothing, they will have to come back to Indiana.  That can be expensive whether for enforcement or for modification.

Better that the custodial parent have the case transferred to the child's home state.  However, this may be impossible unless the new state can get jurisdiction over the other parent.

Remember that that the reverse also applies if you are moving to Indiana from another state.

The Civilized Divorce - Why Not?

I am rather taken with Maryland Divorce Legal Crier's The Civilised Divorce:

She says she first noticed the trend when a friend showed her a professionally taken black and white Christmas card of a recently divorced couple from Stockholm. “There they were smiling away on the card with their immaculately dressed children, even though inside they posted separate addresses below their names.”

This couple, writes Kirwan-Taylor, have a personal Civilised Separation Agreement in which they agreed to protect the children, respect one another, split everything down the middle fairly and never quarrel openly.

Think this will catch on in America?

I think we can hope but that leads me to ask a different question: if your divorce was not civilized, why was it not?

Commentary on My Grant County Child Support Rules - Income Withholding Rules

I want to thank Christopher C. Hedges of NW Indiana Lawyer for his Problem with Indiana’s Family Law Code?.  He has kind words about my Grant County Child Support Rules - Income Withholding Rules but even more for providing a great story about keeping an income withholding order in place:

Removing a child support income withholding order is a recipe for missed child support payments.

When I was working in South Bend back in the early 2000s at Krisor & Associates, I covered a hearing where a party sought to have a child support income withholding order removed so that a judgment that was granted in the divorce decree could be collected via a garnishment order.

The child support income withholding order was greater than 25%, so no money on the money judgment could have been collected by wage garnishment, thus the request to remove the income withholding order. My argument was that it wasn’t in the best interests of the child because to allow a wage deduction would most likely result in missed child support payments by our client.

The court agreed.

From Fayette County: Contacting the Custody Evaluator Local Rule

This rule ties in with the Local Rule discussed in Fayette County: Local Rule on Custody Evaluators.

LR21-FL00-FL-14

CONTACT WITH CUSTODIAL EVALUATORS

In the event a custodial evaluation is ordered by the Court, the Court shall direct the parties to contact the custodial evaluator to arrange for an appointment with the custodial evaluator. Other than making contact with the office of the custodial evaluator to arrange for the client’s appointment with the custodial evaluator, counsel shall not initiate contact or otherwise communicate with the custodial evaluator until the custodial evaluator’s report has been issued. Prohibited contact or communication shall include the sending of school records, medical records, affidavits, reports, or any other type of written record by the attorney to the custodial evaluator. Information which may be requested by the custodial evaluator shall be delivered or otherwise presented to the evaluator by the party and not counsel. In the event the custodial evaluator should contact counsel before the evaluator’s report has been issued, such fact should be promptly conveyed to opposing counsel indicating the specific dialogue between counsel and the custodial evaluator. Following the issuance of the evaluator’s report, the evaluator shall be deemed a witness and counsel shall be permitted ex parte communication with the evaluator at counsel’s/client’s expense.

So far, I have not seen a similar rule in Indiana. I suggest careful reading of how the rule forbids either attorney communicating with the evaluator. Such a serious prohibition arouses my curiosity at the implicit fear that counsel might be attempting to unduly influence the evaluation.

While the rule states the evaluator becomes a witness, it is unclear to which party the evaluator belongs - petitioner or respondent. If one party makes the motion for a custody evaluation, the evaluator clearly belongs to the party making the motion. However, what if the court makes the motion?

If you forget that these evaluators cost money, the rule has its subtle reminder for you. These evaluations are not provided at public expense.  However, I am wondering who gets accessed the costs if the court makes the motion.  I assume the court will put the cost on one or both of the parents.

It may be worth taking a look now at  IC 31-17-2-12(a):

In custody proceedings after evidence is submitted upon the petition, if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by any of the following:

(1) The court social service agency.

(2) The staff of the juvenile court.

(3) The local probation department or, if the child is the subject of a child in need of services case under IC 31-34, the department of child services.

(4) A private agency employed by the court for the purpose.

(5) A guardian ad litem or court appointed special advocate appointed for the child by the court under IC 31-17-6 (or IC 31-1-11.5-28 before its repeal).

Let me say that the list is not exclusive (see the use of 'may" instead of "shall").  As to each of the statutory options, I am not aware of a court social service outside of Marion County.    As one of our local judges said to me last week, the juvenile court would be more likely to say its staff was overwhelmed with its usual work and there is no money in the county for guardians ad litem outside of CHINS cases.  I suspect our probation department and department of child services lack the personnel to add custody evaluations to their job descriptions.  As for private agencies, and I know of none in this part of Indiana employed by any of our courts.  That leaves private agencies employed (meaning paid for) by our clients.  The last custody evaluation I had was from Delaware County and cost $3,000.00.


I make some of these points as a prelude to a post that has been kicking around in my head for a while about custody cases and the costs involved.  I hope later this month to have that article written.

New Indiana Family Law Blog and Health Insurance After Divorce

I have been remiss about mentioning a new Indiana family law blog from the New Albany firm of Waters Tyler Scott Hofmann & Doane, LLC - simply named Divorce Law Indiana. I like the style of the blog and its content, and it is good to have another Indiana family law blog. Especially one from the southern part of the state (although I am now wondering why nothing out of Evansville?)

I especially wanted to point out this article,  Health insurance after divorce, which points out the reasons why I am following the health care reform bill with interest.

In general, when your marriage ends, there are four ways for you to get health insurance coverage:

1. Continue your health insurance temporarily through COBRA.

The Consolidated Omnibus Reconciliation Act of 1986 (COBRA) is a federal law designed to protect employees and their dependents from losing coverage as a result of job loss or divorce. If your former spouse maintained family health coverage through work (and works for a company with at least 20 employees), you may continue this group coverage for up to 36 months after the divorce or legal separation. You will have to pay for this coverage, however. COBRA coverage will terminate sooner than 36 months if you remarry or obtain coverage under another group health plan.

Because individual policies are often more expensive than group policies, COBRA coverage is certainly attractive. If you decide to exercise your COBRA rights, your cost of continuing coverage cannot exceed 102 percent of the employer's cost for the insurance. Additionally, you have the right to pay the premiums in monthly installments.

2. Ask for health insurance coverage as part of your divorce settlement.

When you are negotiating a divorce settlement, ask that your spouse be required to maintain health insurance coverage for you. This may not work if you can easily get health insurance coverage through your own employer. But if you're an older homemaker or self employed without access to employer-sponsored health coverage, you have a better chance of receiving this as part of your settlement. Otherwise, when the COBRA coverage terminates after 36 months, you may be denied health insurance if your health is poor (although federal law provides protections for certain pre-existing medical conditions).

3. Get coverage through your own employer.

If you work and your employer offers health insurance coverage, sign up for it. Unless your spouse is paying for your health insurance coverage as part of your divorce settlement, this is probably the least expensive way for you to get health insurance.

4. Purchase an individual health insurance policy.

I also must say, I think anyone who notes the twentieth anniversary of the War of the Roses will be providing interesting material.

Fayette County: Attorney Fees

I got to admit I like how Fayette County codifies its procedure on attorney fees.  Yes, this is how most courts go about awarding attorney fees but only some put the procedure where everyone can see and understand what is going on.  (For my experience in Grant County, take a look here.)

LR21-FL00-FL-11

FEES

Provisional attorney fees may be awarded based on evidence presented by way of Affidavit (or oral testimony if the Court shall allow) at the provisional hearing. Affidavits shall be admissible subject to cross examination. The following factors will be considered and should be included in any Affidavit submitted to the Court:  the number and the complexity of the issues (e.g. custody dispute, complex asset valuation; the nature and extent of discovery; the time reasonably necessary for the preparation for or the conduct of contested pendente life matters or final hearings. Other matters requiring substantial expenditure of attorney’s time; the amount counsel has received from all sources; and the ability of the opposing party to pay the requested fees and the disparity of income between the parties.

When the Court finds that attorney’s fees should be awarded, the Court may find as reasonable attorney fees an amount of up to Five Hundred Dollars ($500.00) for provisional attorney fees in a “basic/routine” Dissolution of Marriage case.

Appraisal or accounting fees may be awarded based on evidence presented by affidavit (or oral testimony if the Court shall allow) at a preliminary hearing. The following factors will be considered:  itemized list of property to be appraised or valued (e.g. Defined Benefit Pension, Business Real Estate, Furnishings, Vehicles, etc.); an estimate of the cost of the appraisals and the basis therefore; and the amount of a retainer required and the reason an expert is necessary.

There shall be a rebuttable presumption that attorney fees will be awarded to the prevailing party in all matters involving a contempt citation. An attorney may submit by affidavit (or oral testimony if allowed by the Court) along with an itemized statement his requested fee. Affidavits shall be admissible into evidence by the Court.

Final or interim attorneys fees may be awarded based on evidence presented by way of Affidavit (or oral testimony if allowed by the Court) at the final hearing or any interim hearing requested by either party. The same factors as set out above will be considered by the Court.

Want to Dismiss a Marion County Protective Order? Here is a Form

The Marion County Paternity Court in Indianapolis has paper forms in its court office.  The public can get them if they walk into the court.  Why they are not posted to the City-County website is a question most non-lawyers would have but I suspect whoever is in charge at the Marion Circuit Court just never thought of it.

Which lead me to post the form needed to dismiss a Marion County Protective Order here.

By the way, this form could be used elsewhere in Indiana.

Fayette County: Local Rule on Custody Evaluators

Here is a rule that bears some thinking about.  None of the courts in my general area have a similar rule about custody evaluators.   There is a second rule from Fayette County also dealing with this subject that will be published here in the next few days.

LR21-FL00-FL-10

CHILD CUSTODY AND VISITATION: REFERRALS FOR

INVESTIGATION AND REPORT

On motion of either party with the approval of the Court, or on the Court’s own motion, contested matters involving child custody and visitation may be referred to appropriate sources for investigation and report to the Court.

All custodial evaluator reports or guardian ad litem reports which are court ordered regarding custody and/or visitation shall be admissible into evidence on the motion of either party without the evaluator needing to be present at the hearing. No part of this Rule is intended to supplant the right of either party to compel the attendance of the evaluator or other witnesses as set out in Ind. Trial Rule 45.

In all contested family law matters involving child custody or visitation, the provision of Ind. Trial Rule 35 providing for physical or mental examinations by a physician shall be extended to include examinations and evaluations by a psychologist, therapist or other qualified evaluator upon order of the Court.

Doing a Contempt Case in Marion County? Form for You.

The Marion County Paternity Court in Indianapolis has paper forms in its court office.  The public can get them if they walk into the court.  Why they are not posted to the City-County website is a question most non-lawyers would have but I suspect whoever is in charge at the Marion Circuit Court just never thought of it.

Which lead me to post the form needed to start a contempt case here.

By the way, this form could be used elsewhere in Indiana.

The Children Middle Seminar Schedule for November -Dec 2009

Uploaded the Madison County, Indiana Children Middle Seminar Schedule for November -December 2009.  I have no idea why our courts will not  also post this to the Internet.

Madison County Children Middle Seminar Schedule November -Dec 2009   

The Children Cope with Divorce Seminar Brochure

I picked this up my last trip to Indianapolis and have uploaded the brochure from Visiting Nurse Service for the Children Cope with Divorce seminar to Scribd.  You can access this here.

I have written before about the counties requiring this seminar for those divorces with children.  You can find these articles here and here.

Divorce Related Site - Property Issues

While plenty of sites exist dealing with issues of parenting and divorce, I never found another a site that deals with property issues until I learned of  Hartman Inventory, LLC

Hartman Inventory, LLC™ secures your material assets by providing documentation for small to medium sized businesses, homeowners and renters. Hartman Inventory understands that you work hard to live the American Dream. We help you remember and prove ownership of your possessions so you can properly recover from disasters and other unforeseen circumstances. Having an insurance policy isn’t enough. Disaster victims are usually required to provide a list of items they are claiming for replacement, including price paid and date purchased.

If you were asked to write down all your belongings without looking around your property, would you remember everything?

Can you afford to lose thousands of dollars worth of contents in your home or business?
The Hartmans have developed a successful inventory method that provides detailed documentation of all that you own. The itemized list and photographs of each room and its contents simplify the process of filling out insurance forms, so you can focus on restoring your life and belongings. Hartman Inventory not only helps maximize your insurance claim reimbursement, but also reduces the emotional stress associated with a disaster.
In addition to disasters, an inventory provides documentation needed for:

* Ensuring you have proper insurance coverage
* Loss or damage in moving or storage
* Estate planning and settlement
* Divorce and pre-nuptial agreements
* A thorough list of all business assets, rather than just those on a depreciation schedule
* Sale or purchase of a business