Monday, November 30, 2009

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. 

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