Delaware County: Modifying Custody or Spousal Maintenance or Child Support in Delaware County

Here lies some problems of local rules. Pay attention to this Delaware County Local Rule for Domestic Relation Cases:

A. Petition for Modification. No Petition for Modification of Custody, Child Support, or Spousal Maintenance will be entertained unless a full year has elapsed from the date of the last decision of the court pertaining to custody, support or maintenance, except on showing by a verified petition requesting a hearing and setting forth in detail that an extreme emergency exists.

I have never seen any of the Muncie lawyers raise this in any case of mine. On the other hand, I am not sure that any case of mine violated this rule. Maybe it is used often and maybe it is forgotten. Still, I see some problems with this rule and one oddity.

First, extreme emergency goes undefined. Indiana's statutes neither define extreme emergency nor contain this requirement.

Which leads to the next set of problems. Indiana statutes set out when a custody or child support order may be modified by a court.

Here is the statute setting out the grounds for a custody modification:

IC 31-17-2-21
Modification of child custody order
Sec. 21. (a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
(c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9.

I think an extreme emergency does not necessarily equal a substantial change. Therefore, the local rule ought not impede the filing of a custody modification. If it were, then budget for an appeal to the Indiana Court of Appeals.

About child support or maintenance modifications, the following statute creates the same problem for the Delaware County Local Rule:

IC 31-16-8-1
Modification or revocation of child support order or maintenance order

Sec. 1. (a) Provisions of an order with respect to child support or an order for maintenance (ordered under IC 31-16-7-1 or IC 31-1-11.5-9(c) before their repeal) may be modified or revoked.
(b) Except as provided in section 2 of this chapter, modification may be made only:

(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:

(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

(c) Modification under this section is subject to IC 31-25-4-17(a)(6).
As added by P.L.1-1997, SEC.8. Amended by P.L.103-2007, SEC.19.

Again, I disagree that the Local Rule can impede a support modification unless there is no showing of a substantial and continuous change. I also do not think that an extreme emergency equates to a substantial and continuous change - the former seems far more severe than the latter.

As I wrote above, I have not had to deal with any case where these rules came up but as I also wrote in Local Rules: "Until the Internet came along, I think they were mostly gotcha tools for out of county attorneys." This Rule has all the appearances of a "gotcha" for the unwary attorney or pro se party. Not the best idea I have seen out of Muncie.