Sunday, June 28, 2009

Child Custody Hearings and Indiana Trial Rule 41(B)

I defended a custody case last week. Father sought to change custody from Mother. This meant Father had to prove there was a change in circumstances substantial enough to justify a change. After Father finished his case, I made a motion for judgment on the evidence under Indiana Trial Rule 41(B) . The Rule reads as follows:

(B) Involuntary dismissal: Effect thereof. After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff or party with the burden of proof, the court, when requested at the time of the motion by either party shall make findings if, and as required by Rule 52(A). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.
The judge denied the motion. That left us with another 90 minutes of testimony.

So what? Here is what the judge put in his Order finding for my client:
That there has not been a substantial change in circumstances to warrant a modification of the Court's previous order of custody.
Yes, we won the case and so why should I be bothered? Granting the motion would have saved my client some money in fees, and the court some time. Not so much a savings as in other cases, but some.

I admit I did not expect the judge to grant the motion. My gut feeling is that judges want to hear everything on a custody case and to give both parties an opportunity to vent via evidence. It also meant the judge could postpone his decision till the courtroom was emptied of people who might have an emotional reaction to his decision.

Lawyers know that 41(B) has more uses in civil cases than in family law cases. That does not mean it is without uses in family law cases.

1 comment:

Randy said...
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