Cohabitation Agreements - Define carefully

This applies to more than cohabitiation agreements. The following from Elliot Schlissel's New York Law Blog, Defining “Cohabitation” in Your Separation Agreement applies to prenuptiaon and post-nuptial agreements:

"I understand what the Court of Appeals said better than I understand the two lower courts. When you read the context, i.e. that they had to “cohabit” for substantially 60 days straight, it just doesn’t sound like the agreement is saying she literally has to have intimate relations with some guy (almost) every day for 60 days! Barring some kind of big brother surveillance with bugs and secret cameras inside her house, it seems absurd to me to suggest that this is what the separation agreement required that he prove in order to cut off her support payments!"

***

When I initially read the wording of their separation agreement, the context seemed to indicate that “living together” and “sharing a residence” was the termination trigger, not actual proof of intimate relations.

Bottom line, as Thomas Swartz pointed out, you need a very good attorneyto draft your separation agreement very very carefully and not leave terms, within that agreement, ambiguous.

Family Law and Summonses

I want to strongly urge that we need a better summons form for divorce cases. Too often we use the same form as for civil suits. Why is this so bad?

Here is the language used in a usual civil summons:

The nature of the suit against you is stated in the complaint which is attached to this document. It also states the demand which the Plaintiff has made and wants from you.

You must answer the Complaint in writing, by you or your attorney, within twenty (20) days commencing the day after you receive this summons, or a judgment will be entered against you for what the plaintiff has demanded..

If you have a claim for relief against the Plaintiff arising from the same transaction or occurrence, you must assert it in your written answer.

An Answer is a responsive pleading. Do not file an Answer and you lose the suit. Responsive pleadings are not required in a divorce:

IC 31-15-2-9
Responsive pleading or counter petition
Sec. 9. A responsive pleading or a counter petition may be filed under this chapter.

That may makes divorce cases widely different from civil suits.

One might think a Local Rule might solve the problem, but the following rule from Allen County only reinforces the problem:

LR02-TR4-701 Summons
In all relevant family law matters, the initiating party shall use a form of summons that includes all required information as set out in Trial Rule 4(c).

Fort Wayne might have done it a bit better. Trial Rule 4(C) reads as follows:

(C) Form of Summons. The summons shall contain:

(1) The name and address of the person on whom the service is to be effected;

(2) The name, street address, and telephone number of the court and the cause number assigned to the case;

(3) The title of the case as shown by the complaint, but, if there are multiple parties, the title may be shortened to include only the first named plaintiff and defendant with an appropriate indication that there are additional parties;

(4) The name, address, and telephone number of the attorney for the person seeking service;

(5) The time within which these rules require the person being served to respond, and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint. The summons may also contain any additional information which will facilitate proper service.

I added the italics there. With no responsive answer required, there is no time limit for a response.

All this makes normal citizens a bit panicky. What they do not realize is that it is only if they do not appear for their hearings that judgment may be entered against them. In other words, not showing up for court means that the other side wins.

I do think Delaware County has come closest to the best form for a dissolution of marriage summons (in PDF format here). This is their language:

Be advised that a Petition for Dissolution of Marriage has been filed by the person named “Petitioner” in the Court stated above.
The nature of the action is stated in the petition which is attached to this document. It also states the prayer which the Petitioner has made and wants from you.

You must appear in opposition to the Petition in writing, by you or your attorney, within twenty (20) days commencing the day after you receive this summons, or a Dissolution of Marriage and/or Order of Support will be entered granting what the Petitioner has demanded at the expiration of the statutory period.

If you have a claim for relief against the Petitioner arising from the said marriage, you must assert it in your written appearance.

Still, I think the folks in Muncie have created another problem with "[y]ou must appear...." Sorry, but not every provisional hearing is set within 20 days of the filing date.

They are thinking about and treating divorce cases different from civil suits and that is a good thing. Call the form, the best you will find online. it is the basis for what I use.

Mandatory Discovery for Divorce and Child Support Cases - Allen County

When I wrote Mandatory Discovery for Indiana?, I was not looking at the local rules from any of our counties. Several counties do have Local Rules amounting to mandatory discovery. I am going to review the counties where my practice runs for Local Rules with a bent towards mandatory discovery. I am starting today with Allen County.

To a certain extent this and the other posts will overlap my More counties with financial declarations, but I will try to avoid any unnecessary repetition.

LR02-TR26-711

Provisional Orders and Modification of Support
At least three (3) business days before a scheduled hearing regarding provisional orders or modification of child support (except support matters enforced by the State), each party shall deliver to all other parties to the case the following materials:

1. Their three (3) most recent pay stubs for all employers;
2. Their most recent W-2s, 1099s, and federal income tax returns with
all schedules and attachments;
3. Documentation regarding work related child care expenses;
4. Documentation regarding health insurance premiums;
5. Documentation regarding child support orders for other children;
6. Proposed Child Support Obligation Worksheets; and
7. Any exhibit or document that each party intends to submit to the
Court.

Those seven categories cut down on a lot of discovery and that should cut down costs a bit. Yes, one still has to process all that material. Combined with a financial declaration requirement adds to the ability to present a better case on the parties' finances which plays a large part in dividing marital property and child support. The following Rule helps in the cases where there is real estate:

LR02-TR26-712 Exchange of Appraisals: Mandatory Discovery
At least sixty (60) days prior to the final hearing the parties shall
exchange copies of all real estate and personal property appraisals that will be offered into evidence at the final hearing.

I must note that this Rule seemingly acknowledges that a Final Hearing will not be set 60 days after the date of filing where there is real estate.

If I were to suggest a prototype for a state-wide rule on mandatory discovery, these Rules would be that prototype.

The New Jersey Family Law Blog

I want to recommend the The New Jersey Family Law Blog. Good design, good writing, and, for my Hoosier readers, the contrast to how some states are different are from Indiana. Such as the subject of alimony.

Are you prepared for your prenup?

Give Preparing for your Prenuptial Agreement a good reading. I only ran across Linda's Law Blog Today but I thoroughly enjoyed this post. It made me think about a few things in a way I had not done so before.

Here are some highlights:

As part of your preparation, you should also have an idea of your plans with your future spouse. Do you intend to have children? Do you both intend to continue working? Do you intend to move your primary residences? No Prenuptial Agreement can provide a crystal ball into the future and account for every possible situation that a married couple will face. However, having some type of an idea as to what you plan will help your attorney to at least draft for those situations.

***

Think about your debts as well as who has given you gifts. If your parents gave you the down payment on your home, they may not want it back, unless of course, you divorce. If you borrowed money but do not have a valid promissory note, correct that before you marry.

Once you are married, especially if you are the independent spouse (wealthier spouse), in order to be adequately protected by the Prenuptial Agreement, you should comply with its various provisions. By way of example, if a Prenuptial Agreement only protects separately titled assets, realize that property or debt you place in joint names will not be protected.

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.

Alternative to Divorce: A Post-Nuptial Agreement

I read The New Jersey Family Law Blog's If you want to divorce but cannot afford to due to the depressed housing market, then a post-nuptial agreement may be worth considering with some interest. The post suggests post-nuptial agreements as an alternative to divorce. Well, sort of:

"If the economic crisis has put strains on your marriage such that a divorce is likely at some point in the future then consider a post-nuptial agreement while you ride out the current economic crisis. This agreement would allow you to work out the financial terms of any future divorce and at the same time focus the parties on constructive ways of handling money and assets until then.

However, some people will still want to divorce and while money is something that can always be replaced, time cannot. For those that decide to cut their losses and go ahead with a divorce, think carefully about the financial aspects but don't let that deter you if that is what you want to do. Attorneys, financial planners and other professionals are available to offer advice and counsel."

You can find other articles here on post-nuptial agreements by following the link below this post to the post-nuptial agreement archive. Yes, I do this work. I have not had an opportunity to do so outside of a divorce being filed (we call these an uncontested divorce - and I also have articles on the subject on this blog). I may need to rethink what I wrote here about legal separation.

The article has me thinking if we will not see more legal separations if the economy continues its unraveling. I may need to rethink what I wrote in Indiana Alternatives to Divorce: Legal Separation.

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:

LR69-TR65-12 EX PARTE EMERGENCY CUSTODY OR EX PARTE GUARDIANSHIPS OF MINOR CHILDREN
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.

A Collaborative Divorce Post - New York and then the World

First, from Rochester, New York comes a new blog, Rochester Family Lawyer, with a post on collaborative law, Basics of Collaborative Family Law.

I think the article does a very good job of describing collaborative law and is the first I can recall describing the difference between collaborative divorce and mediation/arbitration:

"Collaborative divorce in New York uses informal methods of financial disclosure such as voluntary production of financial documents, four-way conferences, negotiation, and where needed, outside professionals, including family counselors, accountants and financial planners.

Collaborative law creates a cooperative atmosphere, unlike the adversarial atmosphere of the courtroom. Unlike mediation and arbitration, Collaborative Law provides the client with trained legal advocates, without the court costs. A New York divorce handled in court is likely to be much more expensive and time consuming than the costs and time involved in collaborative law.

Collaboration represents the middle ground between mediation and full adversarial litigation. In mediation, the parties meet with a neutral mediator who assists the parties to find a compromise. In mediation the parties advocate for themselves, the mediator cannot give any party advice or assist either of the parties in advocating their position."

I also think the article's "Some General Principals and Guidelines of Collaborative Law" worth highlighting:

Negotiation through cooperation rather than adversarial strategies

Practicing law through problem-solving negotiations in which the parties are proactive, seek to understand and to be understood

The parties are responsible for the action and the outcome

The parties develop common ground rather than focus on differences

The parties seek to understand the other person’s interests and concerns, which will lead to creative solutions to problems

The parties seek to resolve issues and concerns with each accepting and supporting the other person’s opinions

From the United Kingdom's Family Law Week comes It's a Collaborative World: The Ninth Education Forum of the International Association of Collaborative Practitioners:

The International Academy of Collaborative Professionals (IACP) met for its Ninth Annual Forum in New Orleans from the 15 to the 19 October. The IACP is an international wide community of legal, mental health and financial professionals whose stated aim is to resolve conflict using client centered processes following the end of a marriage or relationship.

The IACP has a stated membership of 3000 members from 19 countries. The membership is by no means is dominated by legal professionals. The therapeutic and counseling communities and members of the financial industry are well represented within the membership of the IACP. The IACP is based in Phoenix, Arizona. The Officers are mainly based in various states of the USA and Canada. However on the Board of Directors are international representatives from Cork, Sydney, Edinburgh and London.

The founder of the Collaborative Law movement, Stu Webb, is based in Minneapolis, Minnesota. Having practiced traditional family law for 20 years he wanted to find a way to utilize the skills of lawyers as problem solvers into a “settlement only” process for family conflict. He envisioned a model where lawyers and their clients would agree not to go to Court over any issue that may arise thereby allowing them to rise to the challenge of solving the problem. This was in the late 1980s.

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"In a fledgling collaborative community, for both practitioners and clients, failure of the process at this stage can be too damaging. For collaborative law to truly grow and take off we need to ensure that experience of the process for both clients and practitioners is positive. As collaborative practitioners we are caretakers of the process with a duty to educate ourselves and acquire the extra-curricular skills that we need to be effective collaborative professionals.

The 5 days I spent at the Forum were hugely instructive in giving me a deeper understanding of how to do this. It is not easy. It goes against the grain for lawyers to let go of the outcome and to give control of the process to the client. We are used to being asked to take control, to drive the case and deliver to the client. That comes as easily to us as breathing. The challenge is to accept that it is the client’s agreement, it is their past their present and their future. We need the skills to change the way we think of and handle conflict. It is not simply a case of ‘business as usual’ but done with four of us around a table instead of in a court. It is over and above taking a conciliatory and constructive approach to the client’s case. I learned that it really is so much more."

Let me bring collaborative law back closer to home. Up in Fort Wayne, the Allen County courts have a local rule dealing with they call cooperative divorces:

LR02-TR16-722 Case Management(6) Cooperative Divorce. Parties formally engaging in the Cooperative Divorce process shall be provided priority settings for Case Management Conferences and will be afforded other such procedural assistance as appropriate to assist in expediting their cooperative process.

Unfortunately, there is no explanation of the Cooperative Divorce process in the Allen County Local Rules.

Prenuptial Agreements - Some History

FindLaw's Writ published Prenuptial Agreements: The Iowa Supreme Court Takes a Strong Pro-Enforcement Stance which might interest those outside of Iowa.

"In the modern era, prenuptial agreements are tolerated to a much greater extent than they were historically. While states vary in their approach to regulating such agreements, they all agree that it is possible for most couples to enter into an enforceable prenuptial agreement that will dictate, at a minimum, the economic consequences of marital dissolution.

The basic tension among states is whether to treat premarital agreements just like any other contract, or whether to apply special standards, in this context, that take account of the particular context in which they arise. The choice dictates how likely it is that premarital agreements will be enforced.

Outside of the family law context, contracts are presumptively enforceable. Courts do not generally 'police the bargain,' which means they neither conduct a fairness or reasonableness inquiry when evaluating contracts, nor concern themselves with each party's knowledge or understanding of a contract's terms. Contracts are presumed to reflect voluntary, mutually-beneficial exchanges. Absent evidence of fraud, duress, or some other recognized defense to the contract's initial formation, individuals are bound by their agreements, even when the terms are obviously unfair or ill-considered."

Frankly, I am not so sure where Indiana fits in all this. Put it down to being too close to the trees to see the forest. Having had time to think over the subject, I would I would say that Indiana tends not to police the bargain. I say tend because our courts do not seem to like the situations where one spouse has the greater sophistication forces a less sophisticated spouse into a very bad bargain - but even those cases are helped greatly by the more sophisticated spouse hiding assets.

Two easy steps exist to an enforceable prenuptial agreement in Indiana: 1) make sure the other side has a lawyer review the agreement; and 2) disclose all assets.

Local Rules

I am writing a bit about local rules right now. Let me explain a bit about these local rules.

First, understand that most rules are not local. The Indiana Parenting Time Guidelines, The Child Support Guidelines, and the Indiana Trial Rules are statewide. These come down from the Indiana Supreme Court which is the highest rule-making authority for Indiana courts. So if you are looking for Marion County child support rules or Orange County visitation rules, you are looking for something that generally does not exist.

Second, we have Title 31 of the Indiana Code to deal with this. In Title 31, the Indiana General Assembly has set out the statutes governing family law in Indiana. Think of the statutes as the general outline and the rules as providing the details on how do things.

Local rules are allowed by our Indiana Trial Rules. The local judges come up with them to deal with local concerns/problems/preferences. Until the Internet came along, I think they were mostly gotcha tools for out of county attorneys. Now the Indiana Supreme Court has an online site gathering the local rules. You can find that here.

Yes, you need to know all of these if you want to practice law but understand that local rules do not trump the statutes or statewide rules.

Prenups and Eldercare - Premarital Agreements for Elderly Couples

George Slater has been one of the big names in Indiana elder law as long as I remember. Now he has a blog Legal Issues in Eldercare. I suggest reading it for the general subject matter but I found Premarital Agreements for Elderly Couples to have relevance for this blog: "

Without a premarital agreement a spouse cannot be disinherited. There is an obvious public policy concern about spouses disinheriting each other and so there are laws that allow a surviving spouse to take a share of the deceased spouse's estate even if they are left nothing. This share is between 25% and 50% depending upon the circumstances. A premarital agreement waives the right to this elective share."

Slater gives a list of points to remember about premarital planning but I think these two stand out:

I think it is important to talk about who is responsible for health care costs because these can be significant. Medicaid is the program that pays for the majority of nursing home care in Indiana and Medicaid ignores premarital agreements. This means that even if there is a valid premarital agreement that says each spouse is on their own, Medicaid will still combine their assets for eligibility purposes.

The new couple can combine some assets in joint accounts and such accounts will not be bound by the premarital agreement. The agreement will control only those assets kept in separate name.

Setting hearings in Madison County and Elsewhere (local rules)

What does it take to get a case in front of a judge? Quite a few things but Madison County (and some other courts) has a local rule setting out the mechanics of setting a hearing.

I wrote the following in my More counties with financial declarations, this list is not exhaustive:

Please, do not think this list exhausts all of Indiana's counties. Remember that the rules requiring financial declarations are local rules. However, the Indiana Judicial System has a trial courts page and from this page a one can find a county's local rules. Scroll down the page till you see a box indicating local rules and a link.

Starting off with Madison County:

LR48-TR40-27 TRIAL AND PROVISIONAL HEARING SETTINGS
A. Causes shall be calendared in consultation with opposing counsel and the
Court. In the event counsel are unable to agree upon a trial setting, the moving party may file a motion for trial setting with the Court. A proposed CCS entry shall be submitted by moving counsel, or party, confirming the hearing date, time, and hearing officer.
B. All motions for trial setting shall include:

1. a statement indicating whether the matter is to be tried by jury or by the Court;
2. a statement indicating the estimated time required for trial;
3. a statement indicating efforts to set the cause by agreement have been unsuccessful.

C. Except by special leave of Court, provisional hearings shall be scheduled not less than fifteen (15) days after the filing of the motion.

I wish "C" operated as the judges thought it would, but see my Madison County needs a new court for more on why it does not.

Hamilton County has a rule similar to Madison County:

LR29-TR00-205. TRIAL SETTINGS
205.10 All requests to schedule trials and hearings shall be in writing and shall contain the
following information:

a. Type of trial or hearing (i.e., jury trial, court trial, final hearing in dissolution, etc.).
b. A good-faith estimate of the total court time needed for the trial or hearing.

205.20 Each request under LR29-TR00-205.10 shall be accompanied by a proposed written order with appropriate blanks for date and time and shall further include reference to those items set forth in LR29-TR00-205.10(a) and (b).
205.30 Every opposing attorney or pro se litigant who receives such an order and disputes the estimate of court time needed for the trial or hearing shall notify the Court in writing within ten (10) days of the receipt of the original order and give their own good-faith estimate of the total
court time needed.

Here is the Blackford County rule:

LR05-AR00-3 SCHEDULING OF HEARINGS AND TRIALS
(A) Calendar – The Court staff shall develop and maintain a calendar for all hearings and trials.
(B) Priority - Whenever the case load of the Court requires that trials and other matters be subject to multiple settings on the same date, the order in which said matters proceed will be determined by the Judge based on Rules of Criminal Procedure Rule 4 in criminal cases, the age of the civil case and to the extent any priority issues are present.
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(D) When counsel requests the Court set a hearing in a civil case, counsel shall contact opposing counsel and provide Court with tentative dates.
***

And now Marion County:

LR49-TR40-214. SETTING CASES FOR TRIAL
A. Setting Cases for Trial. Litigants desiring their cause of action to be set for trial shall file a written Praecipe for Trial which indicates whether a jury or court trial is requested. No trial date will be set unless a Case Management Order pursuant to Rule 16.1(B) has been filed. The Praecipe shall state the number of days needed to try the case.
B. Notice in Dissolution and Paternity Matters. In all dissolution or paternity matters, the Moving party or their counsel shall give notice of the time and place of the hearing or trial by subpoena, notice of hearing or letter, served upon the adverse party at least seven days prior to the trial date and file a copy of said notice with the Court on or prior to the trial date.

Henry County does not have a rule such as we have seen above but does have this:

(E) FRIDAY HEARINGS. Hearings scheduled in provisional matters, IV-D Child Support Matters, Contempt Citation and Visitation matters set on Fridays are not recorded and are set for a maximum of 15 minutes with only the parties as witnesses. If a party desires to have the matter recorded, has additional witnesses or believes the matter will take longer than 15 minutes then a continuance should be requested and the matter set on a day other than Friday.

Allen County has two rules that bear on this subject:

LR02-TR16-722 Case Management
(1) An initial Case Management Conference (CMC) shall be set in
every case where at least one-half day of trial is sought. When either party requests a Case Management Conference, the CMC shall typically be scheduled to occur within 30 days of the request. Absent leave of Court, trial dates for those matters of at least one-half day will not be assigned until after the CMC is held and after mediation had occurred. Trial dates for such cases will be assigned at a Pre Trial Conference (PTC).
(2) At the Case Management Conference, the Court will address and very likely order mediation, discuss family law arbitration, inquire of the matters at issue, discuss discovery, and schedule a Pre Trial Conference. Absent leave of Court, mediation must occur before the PTC is conducted.
(3) Should the case not be resolved at mediation, then at the PTC, the Court will inquire of the matters at issue, schedule primary and/or secondary trial dates, schedule a Final PTC, and establish discovery and other deadlines.
(4) Hearings requiring less than one-half day may be set upon request without a CMC. However, if the case involves matters where mediation is required regardless of the length of the hearing, such as one involving any issue concerning parenting time (e.g., parenting time modification, custody modification, contempt regarding parenting time, child support modification where the number of overnights is at issue) mediation must occur prior to the hearing unless prior leave of Court is otherwise
obtained. When mediation is required for hearings of less than one-half day, the moving party shall also file a motion for mediation prior to, or with the notice of hearing.
(5) Case Management Conferences may be set in any matter and at any procedural phase if helpful to assist the parties and the Court in efficient management of the case. Parties represented by counsel need not personally appear at the CMC or PTC unless otherwise ordered by the Court. The party requesting the CMC shall submit a “Notice of Case Management Conference” (similar to a Notice of Hearing) when requesting the date for the CMC.
(6) Cooperative Divorce. Parties formally engaging in the Cooperative Divorce process shall be provided priority settings for Case Management Conferences and will be afforded other such procedural assistance as appropriate to assist in expediting their cooperative process.

LR02-TR73-723 Hearings
(1) Hearings will be limited to the time scheduled on the calendar, and it shall be the responsibility of the moving party to ensure adequate time is reserved for the completion of the hearing. Should the parties be unable to complete the hearing within the scheduled time, the hearing will be continued and reset on the calendar, unless otherwise directed by the Court. In the event a party files subsequent motions after the matter is set for hearing, the subsequent motions will be heard only if time permits. If
time does not permit the subsequent motions to be heard, the motions shall be reset.
(2) Not all family relations hearings are electronically recorded. It is the parties’ responsibility to request an electronic recording if they desire the same. Absent such a request, the recording might not be made.
(3) At a hearing for provisional orders, a party may elect to present
evidence in a summary manner or by direct testimony. If evidence is presented in a summary manner, then the party presenting the evidence shall be sworn under oath and verify the representations made by counsel. The rules of evidence with respect to hearsay shall apply unless waived by the parties. If an attorney makes a representation by an individual who is not a party during a summary presentation of evidence, that individual must be present to verify the statement. At a provisional order hearing each party shall be allotted one-half of the total hearing time, with the initiating party having the right to reserve a portion of their allotted time for rebuttal. (4) Protective Order hearings shall not be heard in summary manner absent leave of Court. However, Protective Order hearings must be concluded in the time allotted. The Court may set parameters to ensure the timely conclusion of the hearing.
(5) Subject to approval by the Court, the parties by agreement may present evidence at any hearing in a summary manner consistent with the procedures used for a provisional orders hearing.

Of the other counties I generally practice in, these counties lack a local rule on trial settings: Tipton, Boone, Grant, and Hancock. Delaware County has a rule (LR18-AR00-DLR-002)about setting criminal and civil jury trials but nothing about family law cases. Likewise, Howard County has a rule that I do not read as being applicable to family law cases:

LR34-TR4O-15 TRIAL SETTINGS

Unless otherwise ordered by the court at the pre-trial conference, when more than one case is set for trial on a given date, the case set second shall be required to stand for trial if counsel is given five (5) days notice, excluding Saturday and Sunday, that the case first set will not be heard.

Counsel for all other subsequent settings are required to comunicate with each other and counsel for the first and second settings to determine priorities.

Counsel shall inform the court at least fourteen (14) days before the trial is scheduled to commence excluding Saturday and Sunday, of the need to call a jury.

More counties with financial declarations

Having written Madison County Local Rules: LR48-FL00-17 FINANCIAL DECLARATIONS/SUPPORT WORK SHEETS and Forms - Indiana Financial Declarations, I thought a short review of other counties requiring a financial declaration might be of use. I started with the counties surrounding Madison County but only Henry County and Hamilton County have rules on financial declarations. So I expanded the review to counties where I have practiced and continue to do so. Then I wrote Family Law and Pretrial Conferences - Riffing on Marshall County's Local Rules and noticed Marshall County required a financial declaration. Which lead me to adding Marshall County.

Of my usual counties, that leaves Grant, Delaware, Tipton, Blackford, Hancock and Howard Counties not requiring a financial declaration.

Please, do not think this list exhausts all of Indiana's counties. Remember that the rules requiring financial declarations are local rules. However, the Indiana Judicial System has a trial courts page and from this page a one can find a county's local rules. Scroll down the page till you see a box indicating local rules and a link.

I guess most will find it odd that only two counties provide online access to their forms. Those counties being Hamilton and Marion County (which they include in their local rules as appendixes). I can only offer up that courts may not as comfortable with the Internet as other government agencies. Which will mean a trip to the county clerk or court administrator's office for the other counties (hint: call first).

Henry County:

(B) CONTESTED FINAL HEARINGS. At contested final hearings, counsel are directed to prepare and submit a list of assets, list of debts, and proposed distribution of assets and debts indicating those items which are in dispute along with any other supporting documents or exhibits. Requests for exemption from this rule will be handled on a case by case basis.

Hamilton County:

LR29-FL00-402. FINANCIAL DECLARATIONS, SUPPORT WORK SHEETS, VISITATION, AND CHILDREN COPE WITH DIVORCE WORKSHOP
402.10 Parties shall complete in full Indiana Child Support Obligation Worksheets (Form FL00-402A) and Financial Declarations (Form FL00-402B) on the forms adopted by the Court in all contested matters involving child support or disposition of assets. Parties must date and file these forms prior to any hearing or trial. Financial Declarations shall be exchanged by the parties and filed with the Court not less than three working days before any preliminary hearing and not less than ten working days before the final hearing. Child Support Worksheets shall be exchanged and filed with the Court on the hearing date. Child Support Worksheets must be attached to all proposed orders and decrees addressing child support.

402.20 If there are any assets or obligations not disposed of by written agreement between the parties, the litigants must prove the value of the assets and the amount of obligations at the hearing. Financial Declarations shall be considered as received in evidence subject to crossexamination. Direct examination, on matters in the Financial Declaration, should be confined to unusual factors which require explanation, or to corrections

Marion County:

LR49-FR00-504. FINANCIAL DECLARATION FORM

A. Requirement2. In all family law matters, the initiating party shall complete, serve and file a Financial Declaration Form within 30 days of filing a Petition for Dissolution of Marriage, Legal Separation or to Establish Paternity or a Petition for Modification of Child Support or at least seven days prior to any hearing, whichever is sooner. A blank form shall be served upon the responding party with the summons or order to appear instructing the respondent to complete, serve and file the form within 30 days of receipt or at least seven days prior to any hearing, whichever is sooner. Failure by any party to submit the Verified Financial Declaration Form as required shall preclude him or her from presenting evidence as to those matters contained in the Verified Financial Declaration Form, except for good cause shown. These time limits may be amended by court order for good cause shown.
B. Exceptions. The Financial Declaration Form need not be exchanged if:

1. The parties have obtained leave of court;
or
2. The parties have a signed agreement;
3. The proceeding is one in which the service is by publication and there is no response;
4. The proceeding is post-decree and concerns issues without financial implications. Provided, however, when the proceeding is post-decree and concerns only a child support arrearage, the alleged delinquent party shall complete the entire Form, while the support recipient need complete merely that portion thereof which requires specification of the basis of the arrearage calculation.

C. Admissibility. Subject to specific evidentiary challenges, the Financial Declaration shall be admissible into evidence upon filing.
D. Supporting Documents. For the purpose of providing a full and complete verification of income, assets, liabilities and values, each party shall attach to the Financial Declaration Form all nformation reasonably required and reasonably available. At the minimum this shall include current wage records, income tax returns and supporting documentation. "Reasonably available" means that material which may be obtained by letter accompanied with an authorization, but does not mean material that must be subpoenaed or is in the possession of the other party. The court may require either party to supplement the Financial Declaration Form with appraisals, bank records, and other supporting documentation. Such supporting documentation shall not be attached to the Financial Declaration filed with the court, or , if attached, shall have all information redacted as necessary to comply with Indiana Trial Rule 5
(G). Supporting documentation, if relevant, may be admitted into evidence at a hearing as an exhibit subject to the Rules of Evidence.
E. Financial Declaration Forms -- Mandatory Discovery. The exchange of Financial Declaration Forms constitutes mandatory discovery and Indiana Trial Rule 37 sanctions apply. The Forms shall be supplemented if additional material becomes available pursuant to Indiana Trial Rule 26(E)(2).

Allen County:

LR02-TR26-710 Financial Declaration Form

(1) Requirement. In all relevant family law matters, (except support matters enforced by the State), including dissolution, separation, paternity, post-decree and support proceedings (excepting provisional hearings), the parties shall simultaneously exchange Financial Declaration Forms seven (7) days prior to any hearing. The Financial Declaration Form shall be submitted to the Court during the hearing. The Financial Declaration Forms shall be in a format approved by the Court. These time limits may be amended by the Court for good cause shown.

(2) Exceptions. The Financial Declaration Form need not be exchanged or filed if:
(2.1) The Court approves the parties’ written agreement to waive the exchange;
(2.2) The parties have executed a written agreement that settles all financial issues;
(2.3) The proceeding is one in which the service is by publication and there is no response; or,
(2.4) The proceeding is post-decree and concerns issues without financial implications.
(3) Admissibility. Subject to specific evidentiary challenges, the
Financial Declaration Form shall be admissible into evidence during the hearing. The submission of the Financial Declaration Form shall not prohibit any other relevant discovery permitted under the Indiana Rules of Trial Procedure.

Boone County:

LR06-FL00-BLR-16
FINANCIAL DECLARATIONS, SUPPORT WORKSHEETS, AND CHILDREN COPING WITH DIVORCE WORKSHOP
(1) Parties shall complete an Indiana Child Support Guideline Worksheet and Financial Declarations on forms adopted by the court and in all contested matters involving child support or disposition of assets. Parties must date and file these forms prior to any hearing or trial. Financial Declarations shall be exchanged by the parties and filed with the court not less than three working days before any preliminary or final hearing. Child Support Worksheets shall be exchanged and filed with the court on the hearing date. Child Support Worksheets must be attached to all proposed orders and decrees addressing child support.
(2) If there are any assets or obligations not disposed of by written agreement between the parties, the litigants must prove the value of the assets and the amount of obligations at the hearing. Financial Declarations shall be considered as received in evidence subject to cross-examination. Direct examination, on matters in the Financial Declaration, should be confined to unusual factors which require explanation, or to corrections.

Ripley County:

LR69-FL02-14 SUBMISSION OF FINANCIAL DECLARATION FORM
A. Requirement: In all relevant family law matters, including dissolutions, legal separations, paternity and post decree support or maintenance proceedings, the moving party shall prepare and serve a Financial Declaration Form on the opposing party or their counsel within thirty (30) days of the date of the filing of the action. The responding party shall prepare and serve a Financial Declaration Form within twenty (20) days after receipt of service of the moving party’s declaration. These time limits may be amended by court order for good cause shown after motion or by written agreement of the parties filed with the Court.
B. Exceptions: The Financial Declaration Form need not be exchanged nor settlement conference conducted if:

1.) The parties agree in writing to waive exchange.
2.) The parties have executed a written agreement which settles all financial issues.
3.) The proceeding is one in which the service is by publication and there is no response.
4.) The proceeding is post-decree and concerns issues without financial implications. Provided, however, when the proceeding is post-decree and concerns only an arrearage, the alleged delinquent party shall complete the entire Form, while the support recipient need complete merely that portion thereof which requires specification of the basis of the arrearage calculation (with appropriate supporting documentation); or
5.) Where the gross marital estate in a dissolution or legal separation is $5,000.00 or less.

C. Admissibility: Subject to specific evidentiary challenges, the Financial Declaration shall be admissible into evidence upon filing and shall comply with Indiana Administrative Rule 9 and Indiana Rule of Trial Procedure 5(G).
D. Supporting Documents: For the purpose of providing a full and complete verification of income, assets, liabilities and values, each party shall attach to the Financial Declaration Form all information reasonably required and reasonably available. At the minimum, this shall include income tax returns and supporting documentation and current wage records. Reasonably available means that material which may be obtained by letter accompanied with an authorization, but does not mean material that must be subpoenaed or is in the possession of the other party. The Court may require either party to supplement such Financial Declaration with appraisals, bank records, and other evidence to support the values set out therein.
E. Financial Declaration-Mandatory Discovery: The exchange of Forms constitutes mandatory discovery. Thus INDIANA TRIAL RULE 37 sanctions apply. Additionally, pursuant to INDIANA TRIAL RULE 26(e) (2) and (3), the Form shall be supplemented if additional material becomes available.

F. Within ninety (90) days of the date of filing conduct and verify to the Court that a settlement conference between the parties and counsel has been conducted and report to the Court any stipulations or agreement which have arisen from the settlement conference. This section of the rule shall not apply unless both parties are represented by counsel.
G. In all matters involving support, each party shall submit to the Court a completed Child Support Obligation Worksheet with supporting documentation within sixty (60) days of the filing of the petition.
H. The Financial Declaration Form and Child Support Obligation Worksheet is available from the Clerk.
(4) Financial Declaration –Mandatory Discovery. The exchange of Financial Declaration Forms constitutes mandatory discovery, and Trial Rule 37 sanctions are applicable. Additionally, pursuant to Trial Rules26 (E) (2) and (3), the Financial Declaration Form shall be supplemented if additional information becomes available.

Marshall County:

(B) The parties shall file one document listing all property and indebtedness to be divided by the Court prior to the commencement of the final hearing. The parties shall also set forth on the document each party’s valuation of the item or debt to be divided and indicate whether the party wishes to have the item or debt assigned to them or to the other party. The final hearing shall not commence without the appropriate document being provided.

Electronic Recording Gone Bad

The same day I published What About Recording Conversations?, The Florida Divorce Blog published Nebraska Court Rejects Relocation / Custody Tactic: Bugging Child’s Teddy Bear. Anyone reading my article will know the following would be illegal here:

The Court bars use of the recordings in the courtroom, on the grounds that making the recordings was illegal.

Now, Father and several others who were recorded, including some court-appointees in the case, have filed a damages lawsuit against Mother, her father and Mother’s former attorneys for invasion of their privacy.

Mother’s attorneys terminated their representation upon learning of the recordings allegedly made for their client (although they argued that the recordings should be used by the Court).

***

Meanwhile, Father briefly microwaves Daughter’s coats, toys and teddy bears whenever he picks her up, to disable any other recording devices.

Miami Superior judge admonished for emergency custody order without hearing

Not giving the other side a hearing is bad on so many levels. We dealt with this issue years ago in Madison County. Still, it continues. I am reprinting the article from The Indiana Lawyer, Commission admonishes Miami Superior judge, just because this problem and its solution needs known by wider public:

"A Miami Superior judge received a public admonition today from the Indiana Commission on Judicial Qualifications for granting an ex parte petition in a child custody case. The commission also noted it has repeatedly addressed this type of violation for years.

In February 2007, Judge Daniel C. Banina issued an order granting temporary custody to the father in a case involving a divorced couple still living together. The mother had sole custody of the child and decided in January 2007 she wanted to move and take their child with her.

Instead of ensuring the mother had notice of her ex-husband's emergency petition to receive temporary custody of their child and proceeding first to a hearing on the paternity request, Judge Banina issued the order granting temporary custody to the father and set a hearing for the following month. Even in a true emergency a person is entitled to a hearing within 10 days of the ex parte order; Judge Banina set the hearing for March 27, 2007.

According to the public admonition, Judge Banina violated the mother's due process rights as well as Canons 1, 2, 3B(2), 3B(8), and 3B(9) of the Code of Judicial Conduct.

"In the Commission's view, there is perhaps no greater injustice than to strip a parent of custodial rights without an opportunity to be heard and in the absence of an emergency," the Commission on Judicial Qualifications wrote in the admonition. "The Commission calls upon all judges and lawyers in Indiana to respect this fundamental notion, one the Commission and its counter-part, the Supreme Court Disciplinary Commission, attempted to convey now for several years, only to repeatedly address the same violation."

If lawyers and judges will not respect due process, then why should anyone else?

Lastly. those seeking a better understanding of emergency custody proceedings are to work should read the full opinion.

What About Recording Conversations?

Tape recording conversations came up in a hearing last week in Versailles. That had been the first for a very long time. As we have seen in the past few years with Alec Baldwin and David Hasslehoff, technology has changed so much that everyone has a video camera and a tape recorder in their cell phones. I offer this bit of my research using Google. The Citizen Media Law Project's has a page for Indiana on its website which has the virtue of links to Indiana's statutes:

Indiana Recording Law | Citizen Media Law Project: "Indiana's wiretapping law is a 'one-party consent' law. Indiana makes it a crime to record a telephone conversation unless one party to the conversation consents. See Ind. Code § 35-33.5-1-5 and Ind. Code § 35-33.5-5-5. Therefore, you may record a telephone conversation if you are a party to the conversation or you get permission from one party to the conversation. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. In-person conversations do not appear to be covered by the law, but it cannot hurt to get consent before recording just in case.: "Indiana's wiretapping law is a 'one-party consent' law. Indiana makes it a crime to record a telephone conversation unless one party to the conversation consents. See Ind. Code § 35-33.5-1-5 and Ind. Code § 35-33.5-5-5. Therefore, you may record a telephone conversation if you are a party to the conversation or you get permission from one party to the conversation. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. In-person conversations do not appear to be covered by the law, but it cannot hurt to get consent before recording just in case.

In addition to subjecting you to criminal prosecution, violating the Indiana wiretapping law can expose you to a civil lawsuit for damages by an injured party. Ind. Code § 35-33.5-5-4."

I will say three things unmentioned above. First, if you expect them to fall over themselves about the difference between the conversation and their testimony - don't. They will just say that they changed their minds. Second, remember there are two parties to a conversation - I do not think my opposing counsel has yet caught on about what my client said put a big hole in his case. Third, that there is an evidentiary foundation that must be laid before the recording goes in as evidence.

Getting Noticed by The Wall Street Journal

Actually, this amuses me but at the same time it reminds how close everything is on the Internet: Stories From Around The Web. I guess it is randomly chosen as I wish it had picked a different article of mine to highlight. So it goes, he says with a chagrined look.

For My Allen County Readers - Clerk's Office Child Support Information

Allen County Government - Child Support:

"The Clerk's Child Support Division is located in the Allen County Courthouse, Room 200, 715 S. Calhoun Street, Fort Wayne, IN, 46802, (260) 449-7588. The office is closed on Saturday, Sunday, and all legal holidays."

This page provides these links:

SUPPORT INFORMATION FORM

NAME OR ADDRESS CHANGE

INFORMATION FOR PERSONS MAKING SUPPORT PAYMENTS

FORM FOR ELECTRONIC FUNDS TRANSFER

INFORMATION FOR PEOPLE RECEIVING PAYMENTS

DIRECT DEPOSIT FORM FOR RECIPIENTS

KIDS HOTLINE INFORMATION

Following up on New Indiana Legislation: New Joint Custody Bill

Thanks to an e-mail from Stuart Showalter, Executive Director of Boone County Child Advocates, I already have a follow up to New Indiana Legislation: New Joint Custody Bill. He pointed out to me that his organization's website has a page on this new Bill here. The page has a report there of his attending a meeting of the Indiana Child Custody and Child Support Legislative Advisory Committee which merits reading.

Indiana Alternatives to Divorce: Legal Separation

This will be the first of a short series about alternatives to divorce.

In all my time here, I have written one article on legal separation. If you follow that link, you will see my reasons for the scarcity of of my writing on this subject. However, I ran across Julie Glade's web page and she gave me something to think about (besides wondering if Lake County sees more legal separations than I do down here - Kent A. Jeffirs of Crown Point also devotes part of a web page to legal separation):

"Legal separation may be a better choice for you if you want to limit joint liabilities with a spouse, need the benefit of an employer’s health insurance coverage, or want to consider reconciliation.... In Indiana, legal separation does not end a marriage, but allows the court to issue orders for child custody, child support, parenting time, spousal maintenance, protection from the other parties’ debts, and division of property. Legal separation only lasts for one year, but can give you time to identify your options for the future."

In my earlier article, I wrote "[t]he procedure does have its uses so long as its limitations are understood." I did not write in any detail about those uses. Ms. Glade did just that. My only defense to this blind spot is my experience of those wanting a legal separation deciding instead for a dissolution when they learn Indiana's law on legal separation. Do pay close attention to Ms. Glade's last sentence.

And for the legal separation statutes themselves, follow this link.

New Indiana Legislation: New Joint Custody Bill

he Indiana General Assembly has a Bill pending that would change the presumption in custody cases to joint custody instead of sole custody in one parent. The digest reads as follows:

Joint legal custody. Establishes a rebuttable presumption that an award of joint legal custody is in the best interest of a child. Requires a court, if a party seeks to rebut the presumption, to consider: (1) the fitness and suitability of each of the persons awarded joint legal custody; (2) the ability of the parents to communicate and advance the child's welfare; and (3) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody. Repeals a provision containing language that is relocated within the Indiana Code. Repeals provisions providing that: (1) the mother of a child born out of wedlock has sole legal custody of the child; and (2) a custodial parent may determine the child's upbringing.

Phyllis Pond sponsored this Bill. Her biography is found here. I am not sure what she hopes to accomplish with these changes in the Bill. I sent her an e-mail asking her this question but have had no reply.

I have written before about joint custody and I noted in one post that Minnesota has gone to this type of presumption.

I want to discuss the proposed changes. The new law would add the following:

Sec. 2.4. If a party seeks to rebut the presumption under section 2.2 of this chapter that an award of joint legal custody is in the best interest of the child, the court shall consider:
(1) the fitness and suitability of each of the persons who would be awarded joint legal custody;
(2) whether the persons who would be awarded joint legal custody are able to communicate and cooperate in advancing the child's welfare; and
(3) whether the child has established a close and beneficial relationship with both of the persons who would be awarded joint legal custody.

I see no definition of "fitness and suitability" and I feel safe in saying that litigation will focus on those three words. Lots of litigation. I see similar but somewhat lesser problems with "beneficial relationship" (I can see evidence easier to produce about the degree of benefit one each parent provides to the child.)

I do like (2). Therein lies my favorite defense to an unwanted joint custody. Forcing joint custody on parents who cannot communicate and cooperate in advancing the child's welfare will not result in less litigation or a better atmosphere for the child.

I find more interest in what is excluded from the proposed law than what it adds:

Sec. 15. In determining whether an award of joint legal custody If a party seeks to rebut the presumption under section 13 of this chapter would be that an award of joint legal custody is in the best interest of the child, the court shall consider: it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons who would be awarded joint legal custody;
(2) whether the persons who would be awarded joint legal custody are willing and able to communicate and cooperate in advancing the child's welfare; and
(3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age;
(4) (3) whether the child has established a close and beneficial relationship with both of the persons who would be awarded joint legal custody.
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

Again, I see "fitness and suitability" and I have made my comments on that already. I notice that the living in close proximity has been dropped as well as the wishes of the child. We have never had a pronouncement from our appellate courts about how much weight to give to the child's wishes and I think it does - sometimes - give rise to gamesmanship over those wishes. I find the removal of this provision as more of a curiosity.

On the other hand, getting rid of close proximity gives me a bit more of a pause. Joint custody gives an equal measure of control over the child's upbringing. I recognize that close proximity is relative but at some point I see distance being an obstacle to care of the child. How effective can a parent be if they live in California? It may be that Representative Pond does not recognize the numbers that are leaving Indiana for more prosperous areas of the country.

Generally speaking, my view has been that joint custody seems like a good idea but its reality is not so good. However, reading Representative Pond's proposal did give cause me to ask this question: Could it be that by creating a joint custody presumption will lessen custody fights?

I see it lessening custody fights only if the general public is made to understand what it means. I see nothing that indicates any proposal for educating the general public in the Bill. Considering how many of clients think Indiana presumes the mother should get custody, this is a real concern. Without the public knowing that there is presumption favoring joint custody then any desire to lessen custody fights will come to nothing.

It might be a good idea to see what the effect has been in other jurisdictions. I noted in an early post that Minnesota had a proposal for presuming joint custody. (There is another post here post e about Minnesota and joint custody.). I also have a post on Norway and joint custody that might lead us to making a more informed decision about this kind of change.

Perhaps some of my readers might have a different view about whether this would be a good change. If so, please be sure to leave a comment.