Tuesday, January 27, 2009

Emergency Custody: Ripley County and Allen County

Recently, a custody case took me to Ripley County. Which gave me reason to read the Local Rules for Ripley County. I found a couple of items very impressive and here is one:

Whether in the context of a dissolution of marriage, paternity, guardianship, or any other proceeding, where one is seeking ex parte or emergency custody of a child or ex parte emergency guardianship of a minor child, the following minimum information will be required:
1.) A sworn verified motion or petition signed by the person seeking relief.
2.) The full name, physical and mailing address of the petitioner or movant, and their relationship to the child or children for whom they are seeking custody or guardianship.
3.) The full name, date of birth, and age of the child or children for whom custody or guardianship is being sought.
4.) The length of time the child or children have been in the petitioner’s or movant’s physical custody, and a brief description of the circumstances as to how such physical custody occurred. If the child or children are in another’s physical custody, the same information is required including that person’s relationship to the child or children.
5.) The name and physical, and mailing, address of every other person who has legal or physical custody of the child or claims such right, including, but not limited to, the biological mother, the biological father, or putative father(s). If it is claimed an address is unknown, then the Court shall be advised what efforts have been undertaken to locate said person and their last known physical and mailing address.
6.) If any other interested party is represented by counsel, or known to have counsel, what efforts have been undertaken to advise other counsel of the pending ex parte request and other counsel’s response.
7.) A complete copy of the most recent custody order in effect, if any.
8.) A statement whether the person seeking emergency ex parte custody or guardianship has had their visitation or custodial rights to any of said child or children limited, restricted, or suspended in any way by prior court order.
9.) The existence of any pending C.H.I.N.S. proceeding or other involvement by a child welfare agency and whether custody proceedings or guardianship proceedings regarding the child or children are pending in or have been filed in another court and, if so, sufficient information to apprise the court of the place and nature of the proceedings.
I think they are doing something very right down in Versailles. I have written often about emergency custody (see here). The greatest problem being that the grounds and procedure are not terribly well defined in the statutes. This local rule adopts much of the procedure for a temporary restraining order. That makes a lot of sense.

One thing remains unclear: define an emergency. Admittedly, the exact nature of an emergency should depend on the actual facts and remain outside of the possibility of being incorporated into a rule or statute.

I think this Rule incorporates the best practice I have seen - so far - for an emergency custody petition.

Meanwhile, up in Fort Wayne the Allen County judges created this Local Rule:
LR02-TR65-720 Motions Alleging Emergencies
(1) Trial Rule 65(B)(1) and (2), and current case law, including In Re: Anonymous, 726 N.E.2d 566 (Ind. 2000), shall govern all motions alleging an emergency where Court action is sought without notice. Strict construction and application of Trial Rule 65(B) shall be required. (2) Emergency relief may also be sought upon notice. The Court will review such motions and may set them upon summary hearing or other
expedited calendar.
While considerably more vague than the Ripley County Rule, Allen County does cover the same territory.

Both give a little bit more focus to the general outline created by the Indiana Court of Appeals in Alexander v. Foy (2002):
On August 7, 2000, Father’s counsel faxed the following letter to Mother’s counsel of record from the paternity proceedings:

Dear [Counsel]:

Attached you will find copies of the following materials I will tender to the Court this morning:

    1. [Father’s] Verified Petition for Emergency Change of Custody;
    2. Chronological Case Summary Entry; and
    3. Proposed Emergency Change of Custody Order.

    Please call with your thoughts.

Appellant’s Appendix at 81. The Verified Petition for Emergency Change of Custody, filed August 7, includes the following paragraph:

(9) I.C. 31-17-3-4 notice and opportunity to be heard was given to the Mother’s existing counsel of record . . . by FAX this date at 11:00 A.M., a true and accurate copy of which is attached hereto . . . .

Appellant’s Appendix at 27. The trial court held a hearing some time the afternoon of August 7, 2000; however, there is no indication in the record of the exact time at which Father’s petition was filed or of the time it was heard.8

Under the circumstances of this case, we think this notice could be considered reasonable. Mother resided in another state. It may be true, as Mother alleges in her brief, that Father was aware of her residence. See Appellant’s Brief at 18. However, whether Father knew her address is irrelevant under these circumstances because it is unreasonable to expect an emergency situation to wait for resolution until a mailed notice could reach Mother and Mother could then contact counsel or travel to Indiana herself. Father reasonably could have believed that the most likely way to get notice to Mother and perhaps to have Mother’s interests represented at a hearing on his petition was to notify her counsel of record in Indiana. Father’s petition included a paragraph describing this notice to Mother through her counsel. The notice was not so defective as to deny Mother due process. In fact, we have held that an ex parte request for a temporary change of custody was properly granted where the mother did not receive any notice prior to the request and only received notice several days after the order was entered. See Wilcox, 635 N.E.2d at 1135 (father filed his request for temporary change of custody on August 14, order granting request was entered on August 16, mother received notice of the ex parte request when she received the order on August 22; “[u]nder the circumstances of this case, that is, an allegation of an emergency where each party lives in a different state, this notice can be considered reasonable.”).

And the problems described by the Indian Supreme Court in Matter of Kern:
The husband then went to Respondent’s court where court staff helped him prepare an affidavit. The affidavit made various claims, some of which were later found to be false. Even with the false statements, the affidavit did not allege specific facts showing that immediate and irreparable injury would result if an order was not issued before mother could be heard, as required under these circumstances by Indiana Trial Rule 65(B)(1). Respondent nevertheless immediately prepared and issued an order granting custody to the husband. The husband returned to the school and, armed with Respondent’s order, took the child home with him that same day. Neither the husband nor Respondent contacted the mother about the proceeding that took place in the court.

No comments: