Wednesday, November 28, 2007

Child Custody: concerns about removing a child from Indiana

I wrote about a custody bond earlier today (see Offical forms and Indiana - custody bond). That form goes with one of two statutes. For paternity cases we look at IC 31-14-13-6.7 and for divorce cases at IC 31-17-2-21.7. The statutes only differ about the type of case and have no substantive difference between them. The following is from IC 31-17-2-21.7:

(a) The court shall consider requiring security, a bond, or another guarantee under section 21.5 of this chapter if the court makes a finding under subdivision (1), (2), (4), or (7) by clear and convincing evidence. If the court makes a finding under subdivision (1), (2), (4), or (7), the court shall also consider subdivisions (3), (5), (6), (8), and (9) in determining the amount of security, bond, or other guarantee. In making a determination under this section, the court shall consider the following:
(1) Whether a party has previously taken a child out of Indiana
or another state in violation of a custody, parenting time, or visitation order.
(2) Whether a party has previously threatened to take a child out of Indiana or another state in violation of a custody, parenting time, or visitation order.
(3) Whether a party has strong ties to Indiana.
(4) Whether a party:
(A) is a citizen of another country;
(B) has strong emotional or cultural ties to the other country; and
(C) has indicated or threatened to take a child out of Indiana to the other country.
(5) Whether a party has friends or family living outside Indiana.
(6) Whether a party does not have a financial reason to stay in Indiana, such as whether the party is unemployed, able to work anywhere, or is financially independent.
(7) Whether a party has engaged in planning that would facilitate removal from Indiana, such as quitting a job, selling the party's primary residence, terminating a lease, closing an account, liquidating other assets, hiding or destroying documents, applying for a passport, applying for a birth certificate, or applying for school or medical records.
(8) Whether a party has a history of marital instability, a lack of parental cooperation, domestic violence, or child abuse.
(9) Whether a party has a criminal record.
After considering evidence, the court shall issue a written determination of security, bond, or other written guarantee supported by findings of fact and conclusions of law.
Notice a few things: 1) the grounds must be removing the child from Indiana, 2) that the statutes make no difference between custodial and non-custodial parents and 3) that must be proven by clear and convincing evidence. Getting this bond requires narrow grounds and a higher than usual burden of proof.

I cannot find anything under Article 14 (Paternity Establishment) corresponding with the forfeiture statutes contained in Article 17 (Custody and Visitation Rights). These statutes control where the money goes if the party posting the bond violates the bond. I see no reason why the forfeiture provisions under Article 17 should not apply to Article 14 cases. The forfeiture statutes are IC 31-17-3.5-3 and IC 31-17-3.5-4.

I cannot help but say that one great practical obstacle probably limits the effectiveness of these statutes: the financial ability of the parent posting the bond to afford the bond.

No comments: