Delaware County's Mediation Program - A good idea from Muncie

Let me say that I think Delaware County has hit on a great idea. (Although I understand that there is some connection with the Henry County Circuit Judge as the possible originator.  I think its greatness lies in overcoming my two objections to mandatory mediation.

I am writing about this because I think it is a program that would be worth imitating in other parts of Indiana.

I learned over the past month that the Delaware County Courts started a mediation program this past year.  Not much seems to be known - even by the Muncie attorneys about the program or how it works.  Thanks to Jennie Scott, a Muncie attorney, who opposes me on a case in Muncie, I got the start of an education.

I probably should also thank Tom Cannon of Delaware Circuit Court 5 for explaining a bit of the process during a hearing this past Friday.  And the Delaware County Court Administrator for giving me a packet that I spent Sunday scanning in and uploading. Also, I understand Judge Voorhees of Delaware Circuit Court 1 lobbied for this program.

What are those objections might be worth mentioning:

1. That it is mandatory:
   

I do not like mediation when it is forced upon a case automatically.  Yes, I am thinking of you , Marion County.  While this may come as a surprise to non-lawyers, judges some times take a dim view of lawyers.  I think mandatory mediation is a symptom of judge's not trusting lawyers to recognize the cases where mediation is not going to work.  Yes, judges, we do know when the parties will not listen to reason and need your judgment.  Just as judges should know which lawyers will not settle a case because they wish to pump up their fees.

Delaware County does make mediation mandatory. (See the Order creating the Delaware County (Indiana) Alternative Dispute Resolution Fund Plan.)

2.  Mandatory mediation does give any relief to those who cannot afford paying mediators and attorneys.

I have a case in another county where the judge refuses to rescoind a mediation order - even though the parties have little money to pay for anything.

First, Delaware County created a fund to pay mediation costs (which at $75.00 per hour msut be a bit discounted by the mediators).  See the Order and Delaware County notice re fees - Delaware County added $20.00 to the amount for filing fees to pay for its mediation program.

Second, the Order requires co-payment by the parties and the County created this Sliding Fee Schedule.  This chart showing how Delaware County determines the co-pay for its mediation program although I want to note something I learned in Friday's hearing.  The judge combines the parties' income to get the income figure and the co-pay is then divided between the two (so a $40.00 co-pay becomes $20.00 paid by the parties).

Judge Cannon stated the reason for the co-pay was to give the parties a financial incentive for participating in the program.

Lastly, Here the attorneys move the case into mediation and then they get out (take a look at the Delaware County Waiver of representation ).


So what is good about mediation?

It gives people - the parties, the clients - a chance to deal with the emotional issues that underpin so much of family law cases.  The courts have no means of dealing with those issues - they are designed only to deal with the wholesale legal issues and not the retail issues of the case.  As a lawyer, I am the client's advocate and those issues conflict with that role.

If you think that your county could use a program like this, then talk to your judges and pass along this information.  Nothing will change unless there is an effort made.

For those interested, I have posted the following documents elsewhere online:

Delaware County Circuit Court ADR Project Waiver and Consent to Release Confidential Information Form  -  Client release form

 Instructions for Completion of Alternative Dispute Resolution (ADR) Project Plan -  The title sums this up pretty well.  These are the  instructions for completing the Delaware County, Indiana Alternative Dispute Resolution (ADR) Project Plan forms that are also posted here

Delaware County Facilitation Agreement - An agreement signed by the parties setting out understanding of ADR project and what they agree to do during mediation.

Delaware County Intake Form - The form used by Delaware County Courts as for intake for the County ADR program.

Delaware County Mediation Order - sample order

Mediation outcome What appears to be form used by the Delaware County mediation program as report to the court and parties on the mediation's income.


Delaware County Mediation Program Survey - Delaware County has a form for surveying the participants in its mediation program.







.

Divorce and Family Law Mediation Round Up

First, What Mediation Can Do For You from California Divorce and Family Law Blog:

A Typical Divorce Mediation
In a “typical” divorce mediation, husband and wife try to negotiate the settlement terms of their divorce. Instead of going to court to have a judge decide about the custody of their children, the division of their property, and alimony and child support, they decide to negotiate and settle these issues themselves with the help of a mediator. The divorce mediator will guide them through the process, assist with the negotiations, explain what issues need to be addressed, and prepare a memorandum of understanding capturing the parties’ agreement. Ideally, at the end of the mediation, all issues will be settled and a divorce judgment can be entered with the court.

Mediating Only One Issue
Sometimes, divorcing couples start their case in court and later are given the option or are ordered to negotiate one or some of the issues in mediation. For example, when the parties have minor children, the court may order them to attend mediation to negotiate the custody of their children only.

Mediation After Divorce
Whether you choose to go to court or use divorce mediation, once you are divorced, circumstances can always change. Your children will get older and might need more financial support. Maybe you want to move and take the children with you. Perhaps you want to get married again. Whatever the reason may be, you can negotiate such issues in mediation even if you are already divorced. Once you reach an agreement, you or your attorney(s) can file the necessary paperwork in court for the modifications to take effect.

Houston Divorce Family Law Attorney Blog published Marital Mediation - A New Arena for Family Law Mediators:

In many states, a new and quickly growing area of family mediation is marital mediation. Marital mediation is a process of assisted negotiation designed to preserve a marriage in ways not attempted by family therapy. The process uses family mediation skills to help couples negotiate new terms for their marriage. Marital mediation is not couples therapy or marriage counseling. There is no diagnosis, assessment or treatment of an illness or disability in the hopes of solving marital problems or achieving a better relationship. Through a dispute resolution approach, marital mediation provides the building blocks and a firm path to a happier and more satisfying relationship and marriage.

***

Couples may use marital mediation to enter into a written post-marital contract resolving issues such as how much of joint funds can each spend without checking first with the other, who owns what marital assets or how to cooperate in preparing a joint tax return. Other common marital mediation issues include her needs vs. his needs, intimacy issues, extramarital affairs, financial management, parenting practices and responsibilities, personal health and hygiene, religious practices and conflicts, living arrangements, career plans and expectations, relationships with family and friends and division of household labor and tasks.

Since leaving Marion County, I have not seen any court ordered mediation.  I am not opposed to voluntary mediation (as opposed to court ordered mediation regardless of the parties' finances) and if you think these services would help, I think you should check them out.

Third Party Custody or Visitation and Michael Jackson

This comes from Family Law Prof Blog's Family Law Prof on Custody of Michael Jackson's Children:

 University of Dayton Family Law Prof  Pamela Laufer-Ukeles contends the nanny of Michael Jackson's children ought to have a legal claim for visitation or custodial rights to the pop star's children, but Grace Rwaramba's status as a paid caregiver will likely squash any chance of that. Her article, "Money, Caregiving and Kinship: Should Paid Caretakers Be Allowed to Obtain De Facto Parental Status?" published in the spring edition of the Missouri Law Review and available at SSRN, explains that state laws and the American Law Institute principles almost always exclude caretakers who receive compensation — foster parents, paid childcare providers and surrogate mothers — from the categories of psychological parents or de facto parents to whom courts may grant such rights. Her article contends that paid childcare providers should not automatically be disqualified from obtaining custodial rights in certain cases.

Interesting concept for an article the interplay of money and care-giving.  Money or the lack thereof determines much of what we lawyers can do.  More specifically, the money that a client can put in a case determines what kind of case is presented to the court.  (For those who like their litigation-as-warfare metaphors and in light of the coming anniversary of September 1, 1939 compare what Poland's investment with Germany's investment in preparing for war.)

Indiana has recognized step-parent visitation but to have a nanny with the intensity of a relationship as a step-parent seems to me a rare case.  As for third party custody case, take a look at my archive on third party custody. 

I do want to commend the original article for reminding people that mother and father are not the only candidates for custodial parent.

Want to Save Money on Your Family Law Case? (Again)

I give you Get Divorced and Live Together from Maryland Divorce Legal Crier which has some very good advice:

One husband said he didn’t have the money to move out, so the couple stayed together during the divorce, and when it got too stressful, he went to the movies or she went out with friends.

“My attorney was very up front with me,” he said. “She said, ‘The more you guys (argue) about this, the more it’s going to cost you.’”

Child Custody and Parenting Skills

The Modern Woman's Divorce Guide's Fight for Legal and Physical Child Custody in Divorce has some good points about what to expect in a custody case  even if guardain ad litem's are rare here as are court evaluators or mediators.  Pay attention to this paragraph:

* Witnesses: Child custody evaluators, psychologists, doctors, your husband, other witnesses, and the judge will microscopically examine your personal life and parenting skills. Be calm and collected. Your lawyer should tell you in more detail what to expect as it pertains to your case.

The article has a very good list of things to do to prepare for a custody case which deserves close attention:

1. Evaluate your parenting. Take a look at your parenting skills from the eyes of your ex. What has he criticized you about in the past? Do you have some bad habits in parenting? How could you be a better parent? Don't beat yourself up; no parent is perfect, just take an honest look at your own parenting skills. You can be sure your ex and his lawyer will bring up anything negative that you’ve done in the past. Be prepared to defend your actions, explain how you've changed (if applicable), and point out the positive parts of your parenting skills.

2. Take inventory of your behavior. You may be a great parent and not feel like each and every action you've taken, especially outside of parenting, should be judged; but it probably will be. Spending the time to look at anything you've done that may be inappropriate or subject to negative judgment is essential. Going in knowing what to expect and having a plan to appropriately deal with each point is vital to success in your case.

It's also essential that any less than desirable behavior or activity that you are continuing to engage in cease immediately. Contested child custody cases can be brutal, with the other party bringing out anything and everything in attempts to win. Don't give them ammunition.

3. Get Honest. When you take a parenting and behavior inventory, be honest. We've all made mistakes and wish we could change a choice or two. Pretending it didn't happen will only lead to challenges in getting what you want and what you think is best for your children should it arise in court.

Once you're clear on what your ex may use against you, be completely honest about all of this with your lawyer. Don't feel embarrassed or ashamed about any of it to the point of keeping it secret. Chances are it will come out if you're in a heated custody battle; your lawyer must know what to expect ahead of time in order to defend your actions and to win your custody case. This information is normally strictly confidential and your lawyer should only use it to help you win your case.

4. Gather Evidence. Bring together concrete evidence in the form of people, experts, documents, police reports, school records, phone records, doctors' records, child protective services records, bank records, anything that will support allegations you make against your former spouse, or defend any allegations your ex spouse makes against you.

Keep this evidence organized and concise. Have a list of people who will testify for you with contact information on hand.

*** 

6. Children front and center. During a contested custody battle it can get heated. Keep your focus on your children and what's best for them. Don't become entangled in revenge and anger.

If you and your spouse focus on what's in the best interest of your children, much of the accusations, anger, and excess stress should disappear. In the end what's best for the children will be accomplished.
7. Stay calm, keep focused. A contested custody battle can bring about many emotions; anger, resentment, frustrations, hurt, disappointment, regret, and more. Keeping a calm heart and mind; staying focused on the facts – as well as being honest about what's in the best interest of your children is vital to your success in court. Showing the judge a calm, in control, mature parent despite the stress of the situation is key in winning your case. Lose your cool and you risk losing your case.

After all that I think Maine Divorce Law Blog's Preparing for a child custody fight provides a great summing up:

One thing that’s important to recognize is that good parenting skills should begin early in the case and continue right up to the hearing (and beyond, of course).

To suddenly become a great parent 2 weeks before trial won’t be helpful to your case. You need to show a pattern of good parenting behavior.

Child Custody: What is Best Interests of a Child

Family Law Practice blog  has a good overview of the concept in his Best Interests of the Child

Certainly, an older child’s wishes will be given more weight than a younger child. What is the nature of the relationship with the child and the custodial parent? The noncustodial parent? The court will also look at the present home environment and whether the child is prospering within that environment.

Is the child adjusting well in school, getting along with other children, keeping his/her grades up?

Are there any significant issues with respect to the ability of a parent to care for the child? Is there evidence, for example, of drugs/alcohol that could impede the child’s growth?

The court does not take any of these issues lightly. Indeed the decision to either remove a child from one parent or to award custody to the other is, arguably, one of the most important, most difficult, and most emotionally charged decisions that a court can make.

This fits very well with the Indiana Code's description of what is to go into a determination of best interests:

IC 31-17-2-8
Custody order
Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(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) The interaction and interrelationship of the child with:

(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.

(5) The child's adjustment to the child's:

(A) home;
(B) school; and
(C) community.

(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

Collaborative Law News: Uniform Collaborative Law Act Approved

We may be seeing the true arrival of collaborative law. Uniform Collaborative Law Act Approved by Uniform Law Commission comes from The Family Law Prof blog:

Family Law Prof Andrew Shepherd, of Hofstra Law School, reporter for the Uniform Collaborative Law Act, reports that the Uniform Law Commission voted to adopt the Act on July 15th at its meeting in Santa Fe. The Act recognizes collaborative law as an alternative dispute resolution process. It is also the first uniform act that articulates requirements for informed client consent to participate in an alternative dispute resolution process and a duty upon lawyers to protect the safety of clients from domestic violence when the client participates in ADR. The Act now goes to the Style Committee for final review, and Professor Schepard have to revise the Act's commentary. It then goes to the ABA House of Delegates and, ultimately, the state legislatures for enactment.

Debts and Marriage- Think You Are Liable for a Spouse's Debts?

I have no idea why people think that marriage automatically creates liability for the other spouse's debts.  I really like the article Is a Prenup Right for Me? until I reached this:

Third, if your fiance has a large amount of debt, you would not want to become legally liable for it. While this may sound cruel, we feel that we all need to accept responsibility for our choices in life.

I cannot imagine a premarital debt that creates liability post-marriage without a voluntary act by the other party.   But people still think the act of marriage by itself creates liability for debt.

There are plenty of reasons for the a prenuptial agreement (and the article has them) but this is not one of them.

A Gripe: Overselling a Product for Those Who Want to Play Attorney

Curiosity about a Google search lead me to Precedent for Child Custody.  Looking over the blurb for the book greatly annoyed me as a lawyer:

Let me explain why.  This blog exists for many reasons such as the following (without any particular order):  touting my practice, a place for me to explore subjects that go beyond my actual practice, and educating the public.  I noticed a long time ago that - regardless of the disclaimer that is on the right hand side of the screen - many people come here looking for advice about their specific case.  Others come looking for information about their specific cases.

I try to be scrupulous (even to the point of being pedantic) about what I write.

This explains why the blurb annoyed me but not what annoyed me about the blurb.  Let me do that now.

There is no chance that the judge will research cite cases which identify the precedent in your favor. 

I find this less annoying than what follows.  Judges are busy and lawyers are expected to be relied upon:

Rule of Professional Conduct Rule 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

( 2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel....

And the judges have their own ethical rules:

RULE 1.1: Compliance with the Law

A judge shall comply with the law,* including the Code of Judicial Conduct.

The judges have their law libraries - whether hard copy or electronic available to them.   No judge will refuse to research an issue when confronted with a conflict of law.

I get much more annoyed with this:

Attorneys rely on the cases they use over and over and may not have the knowledge, resources or time to research the new pertinent cases.

I some attorneys who hate research but they do it.  The resources are readily available in every county.  Thanks to the Indiana Supreme Court, we know have original opinions online.  Those who follow this blog regularly know that I get opinions delivered by The Indiana Lawyer via e-mail. I think that takes care of knowledge, resources and time.

What is not mentioned above is that any lawyer not have time to keep up with the law is incompetent and will not be practicing long.

My ire increases with:

The cases offered by the other side may not be on point or may have been overturned. 

"Not on point" means that they do not apply  to the facts of the case.  Those will be batted away by opposing counsel or the judge quickly enough.

Go back and read Rule of Professional Conduct Rule 3.3. Candor Toward the Tribunal about using cases that have been overturned.

No, any lawyer doing this will not be long in practice - either he will go broke or the Indiana Disciplinary Commission will remove him.

But here lies the biggest problem:

Precedent set in a tobacco or personal injury case or even a different state may have a point of law that applies to your case. It is not necessary for the precedent to be set in a family law case to help you.

You use foreign law at your own risk.   I find myself stymied trying to think how a tobacco or personal injury case may provide precedent in a custody case other some point of procedure, and that will leave me trying to explain the problem in the abstract.  Here is how to use foreign precedent in an Indiana court:

1. Check the foreign precedent - including its entire line back - against Indiana law to make sure that Indiana has not already considered the same issue.  If Indiana has already considered the foreign precedent against how you want to use it, then end of game.  If Indiana has ruled that the foreign precedent applies to Indiana, then go to the Indiana case and use it.  If Indiana has not ruled one way or another, then go to 2.
2. You have to make sure that whatever is the foreign precedent it applies to Indiana's statutory framework.  That means go looking at the Indiana Code on custody.  Then go to 3.
   
3. Prepare an argument why the foreign case applies to Indiana.

If you poke around this blog a bit more (there are archives by subject of older articles on the right hand side and down), you will notice of my noting cases from other states and even other countries.  It is because I think they will apply under Indiana's system of family law.  For an example of this, read my Relocation  - Ideas from Outside of Indiana or Cohabitation Agreements Comparing Nova Scotia and Indiana.

For those thinking of representing yourself, I understand the impulse.  You think you should be able to do this without a lawyer.  You want to save money.

I strongly suggest that you are wrong.  I suggest even more strongly that you follow the label below for pro se parties and study those articles. 

What you need to be even more worried about is getting information such as what is offered by this publisher.  While the book's index appears impressive, the method used for selling it leaves with serious doubts.

News - Collecting Child Support in Florida Worse Than Indiana

OrlandoSentinel.com's Owed child support in Florida? Good luck makes me glad to live in Indiana:

When a deputy sheriff banged on Cheryl White's front door one morning last summer, the family's basset hound, Freckles, began howling, and the ruckus awoke and frightened her teenage children. The deputy had come to arrest someone who had not been at the house for years: White's ex-husband, who owed about $10,000 in child support.

"He last lived at my house four years ago," said White, who recently lost her drafting job of eight years. "None of them had the address that I had given them for him four months earlier."

The episode was another in a series of dead ends that the Orlando woman hit during three years of trying to collect support through the state Department of Revenue, which is supposed to pass along support dollars for more than a million children. Five years ago, the department's now-retired director projected that Florida would lead the nation by 2008 in getting support payments to parents. Instead, Florida now lags most other states, and its performance has declined on most key measures:

•For every case the state handles, about $7,400 of support is past due, exceeding the national average.

•For every dollar of support owed, Florida collects 52 cents — down from 57 cents in 2004 and well below the state's goal of 64 cents.

•The percentage of those who are making payments to catch up on past-due child support has dropped to 62 percent from 67 percent in 2004.

Department of Revenue Executive Director Lisa Echeverri acknowledged that child-support collections have lagged, while noting that there has been an uptick during the past year. She said the department has had challenges shifting to an automated system that is five years behind schedule in becoming fully operational and whose price tag has more than doubled from the original $105 million.

Discovery: Interrogatories

Interrogatories are written questions sent from one side of the case to the other. You can find a good general definition/article here.  Also, Indiana's Rule of Trial Procedure sets out the rule regarding Interrogatories in Interrogatories to Parties.

I wrote about discovery generally in Divorce, Between The Provisional Hearing and The Final Hearing: Discovery. 

For examples of what Interrogatories look like and what they might cover (but everything they might cover), I have posted at JD Supra the following forms:  Support Modification Interrogatories, Interrogatories Visitation, DIVORCE- INTERROGATORIES- NO kids,  divorce- Interrogatories- kids, and Custody INTERROGATORIES.

By the way, these forms were originally created in HotDocs and how the variables that need changed from case to case.

New Indiana Family Law Blog: All Things Family Law

I only became aware of All Things Family Law out of Indianapolis on Monday.  So far, I like what I see - and I am a bit envious.  The writer's tone has a good deal more jauntiness to it than I have been able to manage.  Welcome All Things Family Law to the Indiana legal blogosphere!

The Best D**ned Defintion of a Custody Dispute Ever?

I really could not come up with a better title for writing about Lawyers.com Blog Online's Getting a Divorce? Focus on Your Kids First

At its core, a custody dispute attempts to answer the question, "What custody arrangements will best serve the interests of the child?" This requires a case-by-case examination of the child's needs and the advantages presented by those seeking custody.

Most custody disputes involve a mother and father during or after a divorce. Others, like the custody case for Michael Jackson's children, involve a third party (usually a relative) who is seeking custody after a parent dies or is incapacitated. The courts start with a presumption that parents are in the best position to look out for the welfare of their own child. This presumption can be overcome by establishing that a parent is not fit or able to best care for the child. In making these determinations, the courts look to various factors, established by state statute or case law.

***

To assure that a custody dispute does not become a custody battle, it is best if the parties can reach an amicable agreement, by employing an objective review of the same factors.

The first question to ask when thinking about a custody case:  why are you doing this?  Is changing custody best for the child or best for yourself?

Spyware, Divorces, and Buying One's Self More Trouble Than Expected

Interesting news from Mississippi Family Law Blog Law firm sued for using e-mails obtained in divorce by spyware. With federal law being involved, I suggest that everyone think about this and follow back to the original article.

Tennessee law firm sued for using e-mails obtained using spyware

A lawsuit was filed against a Tennessee law firm for $2,000,000 dollars for its alleged use of e-mails in a divorce action. According to the article, the lawsuit claims the ex-wife loaded spyware on her then husband's computer and intercepted e-mails. The e-mails eventually were given to the law firm representing the ex-wife in the divorce and once her husband found out, he sued the law firm for violations of federal and state law.

Let me make a point--just because the software is available for sale does not mean its use is legal. Many times software is sold for one purpose--parents keeping track of their children's activities on a computer--and then is used for another, possibly, illegal activity--spying on someone. When spouses are going through a divorce and one spouse uses that software to intercept e-mails sent by the other spouse to third parties, it usually means you may be violating federal law. Federal and state laws govern the interception of electronic communications and you can find yourself in hot water if you use the software in an illegal manner.

News: Indiana Court of Appeals Has a New Visitation Case

From The Indiana Lawyer, COA rules on parenting time restriction

Judge Terry Crone wrote in his dissent that Indiana Code Section 31-14-14-1 requires the trial court to enter findings only when it denies any parenting time to the noncustodial parent. Judges Elaine Brown and Melissa May interpreted that statute to require a court to make a specific finding of physical endangerment or emotional impairment before restricting a noncustodial parent's visitation.

"To equate reasonable parenting time with the full panoply of visitation rights pursuant to the Parenting Time Guidelines and to allow a deviation therefrom only in situations where there is child endangerment would severely limit a trial court's ability to fashion a visitation schedule that best suits the situation of the parents involved. Such a result would be ill advised," wrote Judge Crone.

In T.W. v. S.N. III, No. 49A05-0903-CV-138, mother T.W. appealed the trial court's grant of a petition to modify child custody granting father S.N. III physical custody of their teenage son. She also argued the trial court abused its discretion by limiting her parenting time. The trial court found it would be in the best interests of the son to live with his father in Indianapolis, and the Court of Appeals unanimously agreed.

But Judges Brown and May agreed with the mother regarding the parenting time limitations and remanded for the court to either enter an order containing sufficient findings to support a visitation restriction or enter an order that doesn't contain a visitation restriction. After granting physical custody of their son to his father, the trial court ordered T.W. to have parenting time pursuant to the Indiana Parenting Time Guidelines, with the exception she only have one weekend a month of parenting time.

The majority found the restriction to be an error because the trial court didn't release a finding that a restriction was warranted. Using Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003), the majority determined the use of the word "might" in I.C. 31-14-14-1 means the court can't restrict visitation unless it would endanger the child's physical health or well-being.

While The Indiana Lawyer emphasized the parenting time/visitation issue, the case also involves the change of custody from mother to father.  Look at pages 7 -  10.

The opinion also addresses a point not often discussed in Indiana's appellate opinions, the child's wishes:

B. S.N.'s Wishes
Mother argues that there was not a substantial change in S.N.‟s wishes. Father claims that S.N.‟s “attitude is poor around [Mother] because he wants to reside with [Father].” Id. at 93. S.N. indicated that he shares a more positive relationship with Father than with Mother. S.N.‟s older sibling also reported that S.N. “has wanted to reside with [Father] since the fifth grade.” Id. at 96.

Not that the child's wishes determine a case but only one.  Consider this from the same opinion:

Although any one factor may not necessarily warrant a change of custody in the present case, consideration of all the factors, including the conclusion in the DRCB report that it was in S.N.‟s best interest for him to reside in Father‟s primary care, is sufficient to establish that modification is in the best interests of the child and a substantial change has taken place in the interaction and interrelationship of S.N. with S.N.‟s parent or parents, S.N.‟s adjustment to his home and community, and the health of all of the individuals involved....

Opinion at page 9 -10.

Blawg Review by Pink Tape

Blawg Review is a site and an ongoing review of law/lawyer blogs.  Why did they call it a blawg?  It is a lawyer or marketing thing where lawyers call their blogs, blawgs (blog and law melded together).  Silly name but Blawg Review itself is not silly.

Pink Tape has been mentioned on this blog before. English family law blog written by a barrister.  Well, Pink Tape hosts Blawg Review #226.  Give it a look.

Living Together? A Cohabitation Roundup

The Detroit News' Cohabitating may not increase risk of divorce indicates a change of attitude,

But the study contradicts dozens of others that have emerged since the early 1990s, which conclude that cohabitation leads to higher divorce rates.

"Research clearly shows that cohabiters have higher, not lower divorce rates," said Dan Jarvis of the Michigan Family Forum, which promotes marriage. "Cohabiters place less value on the traditional concept of 'till death do us part.' For others, cohabiting allows a couple to slowly evolve into a marital relationship that they would not have chosen if they were forced to make a thoughtful decision rather than sliding into marriage."

The article focuses on the social and not the legal implications. The Knot Too Late blog writes about the legal implications in its Cohabitation Agreements - Part 1:

With more and more couples choosing to live together instead of getting married, it is increasingly common for unmarried partners to have a Cohabitation Agreementin order to ensure that their intentions and expectations are clear and, if necessary, enforceable. Obviously, you don't need a contract if you have no assets or are in a brief relationship. But, in a long-term and serious relationship, whether you're planning on moving in together or you've been cohabiting for many years, a “cohab” can be just as necessary, if not more so, than its more famous cousin, the prenup.

***

If you are planning to mix assets or share expenses, it makes sense to put your agreement in writing, especially if significant money or property is involved. A cohab can provide the framework for unmarried couples to confirm their intentions and record their respective contributions. The sooner you agree on how to share your property while you are together and how to split it should you break up, the less confusion and aggravation you are likely to face later.

Well, it may be more common for New York but not for Indiana.  That second paragraph has the criterion for when there should be a cohabitation agreement whether in Indiana or New York or elsewhere.  Those of you living together or thinking of living together need a cohabitation agreement whenever there is "significant money or property is involved."

For those worried about costs, remember that an agreement will be less expensive in time and money than the time and money fighting over property and money in court.

Also, do follow the link below for "cohabitation" and "living together" for my other articles on this subject.

If you are living in Indiana and want a cohabitation agreement, please give me a call.

Shared Parenting - Looking at Australia and Canada

I have discussed shared custody in Indiana (see Shared Parenting - My View and Another's and More Thoughts on Shared Custody) and now let us expand the view.  

Illinois Divorce Lawyer Blog published Does Shared Parenting require a 50/50 Split of Time? An Australian perspective.

But the provisions about equal time did not reflect what most expert researchers believed was important for children.

"What seems to matter most to children, and what seems most important for their healthy development, has more to do with what happens when they are with each parents, and in particular whether they feel loved and cared for," Professor Chisholm said.

"The idea of equal time makes a lot of sense in terms of adult entitlement.

"As far as I can tell, it does not reflect what research scholars believe is important for children's development."

He urged academics to do more research into the benefits of shared parenting, particularly in cases where parents are in conflict, saying: "We need to know much more about the nature of conflict, the extent to which children are being exposed to it, and the extent to which parents and the courts might be treating the legislation as requiring some form of shared parenting, even when it is damaging to the children."

Men News Daily looks at Canada with Opposition to Equally Shared Parenting Bill in Canada Never Explains What’s so Great about the Current System:

Some of that is principled concern about things like the practicalities of shared parenting.  Would a six-month-old have to be shuttled weekly between households?  Some people truly don't understand what a presumption of equally shared parenting means.  If it would require courts to give equal access to violent, abusive or neglectful parents, they're understandably against it.  Of course it would do no such thing, but plenty of perfectly well-intended people may not yet understand that.

So part of the opposition to a presumption of equally shared parenting is understandable.  Proponents need to do a better job of educating people about what equally shared parenting is and what it's not. 

A legal presumption is a rule of procedure for judges to follow.  All it means is that if neither side to a dispute produces evidence against the presumption, the judge is obligated to follow the presumption.

***

Which brings me to a point I've raised before in discussing Australia's backtracking on equally shared parenting after less than three years.  If people want to speak out against shared parenting, fine.  But when they do, they should invariably be required to explain why, if equally shared parenting is so bad, the current system is preferable.  The current system is awful, but if they don't propose an alternative, that's what they're arguing for when they oppose equal parenting. 

People who oppose equally shared parenting need to fill us in on why it's OK, given all we know about the value of fathers to children, to separate the two.  We know from mountains of social science accumulated by a vast array of researchers in countless different ways, in many different cultures, that children with actively-involved fathers do better than those without.  We know that children, mothers, fathers and society generally benefit from father invovlement with children.

FYI: Kids Voice of Indiana - CASA and GAL Services

Something new to me is  Kids Voice of Indiana (thanks to Children and the Law Blog for posting aobut this):

The Kids’ Voice of Indiana CASA For Kids (CFK) Program provides guardian ad litem/court appointed special advocate (GAL/CASA) services for children using trained, supervised, represented community volunteers and pro bono attorneys. The program is appointed to represent and protect the best interest of the children by judicial officers of the Marion Superior Courts, Civil Division and Probate Division and the Marion Circuit Court, Paternity Division. Judicial officers determine whether to appoint the CASA For Kids Program to (GAL/CASA) provide guardian ad litem/court appointed special advocate representation for a child in a specific case. Judicial officers may appoint Kids’ Voice on the motion of a party or on the Court’s own Motion. Appointments are usually made when children are alleged to be at risk due to abuse, neglect, or, endangerment. Staff of Kids’ Voice are responsible for assigning the case to an appropriate volunteer. Counsel for the parties and pro se parties are notified of the assigned volunteer’s name by an Oath and Acceptance which is mailed to them.

***

After case assignment all GAL/CASA volunteers for Kids’ Voice receive supervision and legal representation by Kids’ Voice staff or volunteer attorneys. Contact attorney Clare Deitchman at 558-2870 ext. 333 orcdeitchman@kidsvoicein.org if you are interested in serving as a GAL/CASA in the Kids’ Voice CASA For Kids Program. If you are an attorney, ask Ms. Deitchman about the free Continuing Legal Education Seminar for attorneys who volunteer to serve as GALs/CASAs. If you are a community volunteer, ask Ms. Deitchman about the next community volunteer class.

I know that Madison County has had problems getting sufficient numbers of CASA workers for our CHINS (Child In Need of Services) cases and we lack Guardians ad Litems for non-CHINS cases.  We need more people volunteering.

Tips on Using This Blog 2

For those from Indiana or who have an Indiana case, be sure to look at my Indiana Family Law Resources on the right hand and down of your screen.

I also suggest checking out my Family Law Links, Family Law Feed - Justia Blawg Search, USLaw.com Blog Directory, and LexMonitor Daily Blog Review.  What you will find here are what other family law bloggers are writing.  Out of state visitors may find here something closer to their home.

Remember that there are many more articles on this blog on this and other subjects. Down the right hand side of your screen are my archives of older articles by subject. You can also click on the link below next to the word "Label". As of today (8/21/09), there are 1,364 posts on this blog. Tomorrow there will be more. Although you may think that one article will answer your question, I think you need to read more so as not to miss the details. The devil is in the details.

Use the search function at the top of the blog. Having seen some of the searches that bring people here, I see many of you missing information.

I also suggest that you subscribe to the e-mail alerts. This is best if you want to keep up with the information provided on this blog. It is free, creates no obligation on you or me, and there is a link to the subscription service on the right hand side of the blog.

Feel free to make comments - not requests for legal advice - to any of the posts. One hope I had had was to get information out to Hoosiers and information back. I only block spam (and believe it or not there is more of that than I like to think about).

If you want legal advice instead of information, you can contact me directly.

This blog is #167

Well, that is according to Avvo and the Alexa page ranking on this page. Thank you, readers. (The Alexa ranking of 2,076,165 does instill a serious sense of humility here.)

New Indiana Family Law Blog

I probably should feel a bit remiss about not noticing JOCHAM HARDEN DIMICK JACKSON's JOCHAM HARDEN DIMICK JACKSON.  It is part of their website but I do not recall seeing it otherwise.

Rather bare bones, with no outgoing links, and about a post a month, it is still good to see another family law blog in the area.  It might help a bit, too, to give it some personality.

My Interview with John Bolch of Family Lore Blog

Yesterday, John Bolch interviewed me for his blog, Family Lore and it was a very interesting experience. You can find the podcast here: Podcast Interview #10: Sam Hasler - An American Perspective. It lasts a half hour. I was a bit talkative.

Tips on Using This Blog

For my readers, remember that there are many more articles on this blog on this and other subjects. Down the right hand side of your screen are my archives of older articles by subject. You can also click on the link below next to the word "Label". As of today (8/21/09), there are 1,364 posts on this blog. Tomorrow there will be more. Although you may think that one article will answer your question, I think you need to read more so as not to miss the details. The devil is in the details.

Use the search function at the top of the blog. Having seen some of the searches that bring people here, I see many of you missing information.

I also suggest that you subscribe to the e-mail alerts. This is best if you want to keep up with the information provided on this blog. It is free, creates no obligation on you or me, and there is a link to the subscription service on the right hand side of the blog.

Feel free to make comments - not requests for legal advice - to any of the posts. One hope I had had was to get information out to Hoosiers and information back. I only block spam (and believe it or not there is more of that than I like to think about).

If you want legal advice instead of information, you can contact me directly.

Cohabitation Agreements Comparing Nova Scotia and Indiana

Overall, no great differences but some serious reminders on why to get a cohabitation agreement.

The Nova Scotia perspective comes from Protecting Your Property When Living as Common Law

A common law relationship exists when two people, who are not married, live together in a marriage-like relationship. The couple can be a same-sex couple or of the opposite sex.

Indiana does not have common law marriage (you might want to go back and read my Living Together in Indiana - And then breaking up). Your property rights depend on some statutes that were not written with anything like common law marriage in mind: real estate, probate, and personal property laws. If you do not follow these statutes, then you must convince a trial court that you have a case under Indiana's common law. And this appears to be the same in Nova Scotia:

While Nova Scotia laws dictate the rights of married couples, the rights of common law couples are not as clearly defined. Ironically, some people select common law living to avoid the legal complications of marriage. However, living as common law has proven to be more complex, especially if there is no agreement on key issues.

That last sentence I emphasized because it makes a point all too true for Indiana.

I have only a mild quibble with this point from Nova Scotia:

For example, if a person who owns a house dies without a will, their common law partner may not have any entitlement to the property or the proceeds if it is sold. Conversely, while your intentions may be to leave your home to a family member, your common law spouse may have a claim against your estate depending on the circumstances.

Real estate can be transferred by deed or by Will. If the owner is a joint owner, then it does not matter what is done in the Will.

Yes, one may make a claim against the estate. This will cost money to do so.

Those fearing the costs - emotional as well as financial - should consider these thoughts from Nova Scotia:

Understanding common law rights and responsibilities will foster a strong relationship. Creating a cohabitation agreement will ultimately ease the situation, and protect your home, if the relationship ends.

For more articles on this subject, click on the labels below.

Relocation - Ideas from Outside of Indiana

I ran across What a Move May Mean for the Child very late last night. Still chewing over it this morning. I suggest that everyone take a crack at reading this article from the GPSolo Law Trends & News. (And thanks to South Carolina Family Law Blog for posting about this article in its How Does Relocation Impact Children of Divorced Parents?).

Too long, too thick for condensing easily, I will pick on this paragraph:

Standards for permitting relocation are not uniform throughout the country. Some courts consider reasons given for the move and its potential interference with the other parent’s visitation before determining the best interests of the child. But in New Mexico, for example, the best interests of the child is directly linked to the determination of which parent is the primary attachment figure.

I think it is safe to say that Indiana's standards for relocation are in flux. For how much of a flux, just follow the "relocation" link below.

Indiana does not explicitly recognize a primary attachment figure as an issue in determining the child's best interests (see IC 31-17-2.2-1 and IC 31-17-2-8) but I would not discount the idea as not being implicitly included in the statutory guidelines. More importantly focusing on this primary attachment concept misses the larger and more important point: the psychological effects of moving from home.

If you plan on moving out of state, see the other articles under the "relocation" link below. And read the cases. I had a rather nice lady call the other day who was scared to death to move, she had read the articles but not the cases, and I had to point the differences in the facts. I cannot recall any of the cases mentioning psychological evidence.

If you have a relocation case, I suggest printing off What a Move May Mean for the Child and giving it to your article. Yes, these cases just got a bit more expensive if we include a psychological evaluation but I now think such an evaluation may be very important.

Parental Alienation Resources

Florida Divorce * Child Custody * Domestic Violence Law Lawyer provides links and resources in Parental Alienation: Organizations and Resources

Whether one accepts it as a legitimate diagnosis of a psychological condition or not, there can be little doubt that the term describes a pattern of behavior that some parents actively engage in.

***

Numerous organizations rally against it, including:

1. A Family’s Heartbreak
2. Hostile Aggressive Parenting
3. Hugs to Heartbreak
4. Keeping Families Connected
5. Overcoming Parental Alienation
6. Parental Alienation Awareness Organization
7. Parental Alienation Awareness Organization - US
8. Parental Alienation Canada
9. Parental Alienation Hurts
10. Solutions 4 PAS
11. Split n Two
12. Stop Parental Alienation
13. The Rachel Foundation for Family Reintegration

My Indiana Divorce Manual Is Now Online at Scribd

Just added this to my account on Scribd. Just follow this link. It is in PDF format, so you will need Adobe Reader to open it on your own computer. Please feel free to pass this along to your Indiana friends.

Is Your Ex Jealous?

Call it jealousy, envy or resentment, all to often these emotions drive a family law case more than anything rational.

Trifles light as air
Are to the jealous confirmations strong
As proofs of holy writ.
~William Shakespeare, Othello

I have a visitation case that seems to involve this kind of emotional problems. My long-time readers know it is my opinion that these emotional problems create the largest problems in family law cases.

Now DivorceSolicitor has a post How to tell if your ex is jealous which ought to be read in full (it is not that long). Which proves another point I have been making for some time on here: people share behaviors regardless of where they live.

Indiana Discovery Forms

I have begun adding discovery forms to my JD Supra profile. You can access them here. I use these forms in HotDocs and they do show the variables that need to be changed from county-to-county and case-to-case.

As an aside to any lawyers reading this, I have never understood why Lexis has not incorporated HotDocs into its forms libraries. Bundling the software with a CD of forms seems to me to make both a lot more valuable.

More Thoughts on Shared Custody

Those who read my Shared Parenting - My View and Another's, should check out Illinois Divorce Lawyer Blog's Illinois Divorce and Changes in our Antiquated Laws?:

I'd certainly like to see the concept of "custody" relegated to the dustbin of history. Mom and Dad are parents...why not enact legislation that defines parenting as a shared relationship? Isn't it almost always true that the non-custodial parent hates to have what is called "visitation?" When does a parent become a visitor? How many custody wars have been fought over who would be relegated to "visitor" status?

I see an interesting premise in that paragraph. What I cannot see the practical application of the idea - especially in light of this paragraph:

Minnesota attorney and mediator Molly Millet discusses below changes that Minnesota made in 2007: "The biggest change in Minnesota that has been helpful is the perception of "custody." Before, parents would fight over the custody label — who got custody and how that related to child support. Now, it's "parenting time." Now, parents are focusing on time with their kids, rather than a legal label.It also takes both spouses' incomes into account. If you earn twice as much, you will pay more. It didn't make any sense before. Let's say Mom worked and Dad lost his job. He was paying child support, and the calculation didn't in any way take into account Mom had always earned more than Dad. Also before, expenses were split 50-50 regardless of who made what income. Now, in most cases, it's split proportionally."

See, Indiana has been taking into account both parent's income for most of the past twenty years. Still, we have custody fights in court and outside of the courtrooms we still have parents sniping at one another. For those dissatisfied with the current system, I continue to maintain that merely changing legislation is not enough. Attitudes between divorced parents need to be changed or some means needs to be added to the court system for dealing with the emotional and psychological issues remaining after a divorce.

I was reading David Hume's essay Of Commerce when I ran across these sentences which - for me - hit home with the problem facing family law:

...Sovereigns must take mankind as they find them, and cannot pretend to introduce any violent change in their principles and ways of thinking. A long course of time, with a variety of accidents and circumstances, are requisite to produce those great revolutions, which so much diversify the face of human affairs. And the less natural any set of principles are, which support a particular society, the more difficulty will a legislator meet with in raising and cultivating them. It is his best policy to comply with the common bent of mankind, and give it all the improvements of which it is susceptible....

What we might like to see in a system (the ideal) is opposed by human nature (the real).

Yet, it is worthwhile to see what is going on in other jurisdictions. Sometimes it is good to know that while Indiana may seem to be driving a second-hand Ford, others are driving Yugos.

Divorce - Be Prepared for Changing Circumstances

Things change. Drafting divorce agreements needs to take into account the possibility of unexpected changes. Although, maybe not as extreme as set out in Cleveland.com's Steven Pumper asks court to dissolve $3 million divorce deal

Steven Pumper, who is headed to prison for crimes related to the Cuyahoga County corruption case, says he never would have signed a $3 million divorce deal had he known he was the target of an FBI investigation.

Pumper has filed papers in Domestic Relations Court asking a judge to tear up his divorce decree, which he agreed to in July 2008.

The settlement required Pumper to split his $6 million estate with his wife of 19 years, Darlene.

But that is money Pumper said he doesn't have anymore due to a crash in the economy and the hit that bad publicity from the corruption probe has dealt to his former company, D-A-S Construction of Garfield Heights.

"Had [Pumper] anticipated his being named as a target in the probe of Cuyahoga County officials, he certainly would not have voluntarily entered into a deal which he would be incapable of performing," attorney Margaret Stanard wrote in a motion filed last month.

***

Darlene Pumper maintains that her ex-husband knew at least two months before he signed the divorce settlement that he was the target of a federal investigation.

Her lawyer, Vincent Stafford, cited Pumper's federal plea agreement, in which he admitted being interviewed by FBI agents on May 23, 2008, and of communicating with assistant U.S. attorneys on May 26 and May 29.

Pessimists always have pleasant surprises, optimists only have unpleasant ones.

Not having a clue about Ohio divorce law, I cannot comment on the likelihood of Mr. Pumper's motion. Indiana gives short shrift to any change to a property division after the Final Hearing. In Indiana, Mr. Pumper would need to show that there was fraud involved and in case like this he would have to show that he was the one who committed the fraud on the court. Anyone else think that scenario approaches the surrealistic?

News: Indiana - Appointed Counsel for Termination of Parental Rights Cases

County must pay for parent s appointed attorney

Noting a paradigm shift in parental rights termination cases due to House Enrolled Act 1001, one Indiana Court of Appeals judge believed the Department of Child Services instead of the counties should be responsible for the costs of appointed counsel in these types of proceedings.

But the majority in In Re The Termination of the Parental Relationship of J.G., a minor child; S.G., mother, and J.G., father, and Indiana Department of Child Services v. S.G., No. 32A04-0902-JV-79, saw nothing in the recent revision of the relevant statutes to suggest the General Assembly intended to shift the burden of costs from counties to the DCS. It reversed a trial court order and remanded for further proceedings.

****
The majority agreed after reviewing Indiana Code Section 31-40-1-2, which changed following the 2008 enactment of HEA 1001 that took effect Jan. 1, 2009. Prior to the passage of HEA 1001, the statute stated counties were responsible for paying for appointed counsel in termination proceedings; the revised statute now says DCS shall pay the cost of any child services provided by or through the department for any child or the child's parent, guardian, or custodian.

Chief Judge John Baker and Melissa May concluded court appointed counsel doesn't constitute "services" within the meaning of the statute, relying on I.C. Section 31-40-1-1.5(c), which defines the term "services."

"Those 'services' include programs and types of assistance traditionally offered and overseen by DCS, and it is easy to see the logic in the General Assembly's decision to assign the cost of those services to DCS," wrote Chief Judge Baker. "Legal services, on the other hand, are not the types of services traditionally administered by DCS for children and parents. It is not evident, therefore, that the General Assembly intended that legal services be included in the above definition of 'services.'"

The majority also found instructive the fact that other parts of the code dealing with court appointed attorneys places the burden of paying on counties. It also noted unlike the statute dictating DCS pay for costs associated with guardians ad litem and court appointed special advocates, there's no explicit language in the statute to dictate that DCS pay for appointed counsel in termination hearings.

Blog for International Custody/Hague Convention Issues

Several weeks back someone contacted me about a post I had written (News: Non-compliant Hague Countries Report ). I had to explain to her that my practice does not really involve Hague Convention matters. However, I did refer her to the International Family Law Blog (which you will find in my family law links on the right hand side of your screen and down). This is the blog to refer to for Hague Convention news, IMHO.

Provisional Divorce Attorney fees in Grant County, Indiana

My apologies if this post sounds a bit bitchy. I am in that kind of mood lately. Put it down to this sinus/ear infection that just will not go away or professional annoyance or both.
Recently, I got back an Order from Grant County. One issue was attorney fees for the other side. Mind you that opposing counsel was due something - my client's spouse is out of work - and we did have two provisional hearings. But opposing counsel gave no evidence of his hourly rate or time spent on the case. Here is the court's Order on his attorney fees:

2. Due to a disparity in income, the Respondent is ordered to pay Petitioner's attorney provisional attorney fees in the sum of $1,000.00.
These fees are to be paid as follows: $300.00 within
thirty days of the date of this order; $300.00 within
sixty days of the date of this order; and a final
payment of $400.00 on or before the date of the final
hearing.

Check out my other articles under the "Attorney fees" label to get a comparison with other counties.

Two Blogs For Non-Custodial Parents

I ran across Rightsfor Mothers.com completely by accident. The name pretty much says it all.

And for the fathers, I give you Stuart Showalter's Indiana Law Blog.

Neither blog is written by a lawyer but both actually seem to serve the same purpose: support and information for the non-custodial parent.

Opinion: Interviewing a Child By a Judge

Warning: I use opinion above to indicate when I am about to shoot off my mouth, Read on if you like but you have been warned.

In my experience, having a judge interview a child in chambers is generally a waste of time.

Parents come to me and say that the child will say z if they can talk to the child. From the results obtained, I think the child must have said a instead.

My first experience with this ought to have been my last. I seem to recall the case being from 1994 but may have been 1993 or even 1995. Father brings me a custody case. Father says children will say tell judge how badly things were in custodial home. No one wanted to put the children in the middle of the proceedings by putting them on the witness stand. Mother lived in Indianapolis and so we had a lack of sources for evidence about what went on in the home. Father adamantly wanted the children interviewed by the court. I set up the issues for the judge to ask the children by what I asked the witnesses. Client keeps telling me what the children have said they want to tell the children. Judge interviews the children. Judge decides that there are no grounds for changing custody. Bad things happen to the daughter after the hearing. Client calls me to blame me for the bad things that happened to daughter. (Yes, clients treat their lawyers like this and maybe that explains to you why lawyers do not take some cases or some clients).

That case remains in my mind to this day. I know now that Father ought not have put all of the case on the child's interview with the judge. On the other hand, Father lacked the money to fund a full investigation of the home. What would I do different today? I see three choices:

1. Not take the case if the client could not pay the costs below.
2. Do a home inspection and have a videographer along for the inspection.
3. Depose the children.
   
4. Although inapplicable in the original case, have the children testify.
   

For many years now I explain to clients not to expect to aw judicial interview to make their case. I do not proceed unless they understand that the case will not depend on the interview and any case so depending will likely lose.

After the last such case, the client came up to me and told me that I had been right and they were wrong. I think they were impressed by that. They did bring me another case in just the past few months.

I should say that there was one successful child interview case. Both opposing counsel and I were present, but I still put it down to the child was a most unusual child.

I think I will be remiss if I do not give the statute on the subject:

IC 31-17-2-9

Court interview of child in chambers
(a) The court may interview the child in chambers to ascertain the child's wishes.
(b) The court may permit counsel to be present at the interview. If counsel is present:

(1) a record may be made of the interview; and
(2) the interview may be made part of the record for purposes of appeal.

As added by P.L.1-1997, SEC.9.

Phony Divorce to Hide Assets - Not a Good Idea

Prosecutors Seek to Intervene in and Block Yet Another Allegedly Phony Divorce Intended to Protect Assets from Florida Divorce * Child Custody * Domestic Violence Law Lawyer makes interesting reading:

Husband ordered to pay over $3 billion as restitution.

Divorce filed. Uncontested.

In divorce settlement, Husband sells home to Wife for $10.

Prosecutors seek to intervene, contending that Husband bought assets using fraudulently procured funds and Husband should not be able to shield them through a sham divorce.

This is the latest in a veritable rash of reportedly sham divorces that authorities or private corporations have sought to intervene in to preserve access to allegedly misappropriated assets

For those thinking that such a thing would work except for criminal cases, I say think again. A civil action - that is one brought by private parties - exists called fraudulent transfers. You can find that statute here. The private parties bringing a suit under the fraudulent transfer statute maybe any creditor - a business, a former spouse.

If you think you may have a fraudulent transfer case in Indiana, please give me a call,

More on Changing Your Name During a Divorce

After publishing Can you keep your married name after a divorce? I found The Name Game Revisited… on the Ohio Family Law Blog. Mr. Mues makesa point about dealing with Social Security and gives contact information.

More Social Media and Family Law News

Having written about this before (Facebook Problems and Family Law and Are You on Facebook or MySpace?), it is good to see the mainstream media highlight the problems with social networking sites. Actually, it was Time magazine that probably started this particular fire.

Mlive.com's A growing trend: Social media as legal evidence puts the problem in two pithy paragraphs:

Therein lies the problem, because much of what gets posted becomes a permanent record somewhere. Facebook, for example, retains all your information even if you close your account.

Photos contain a lot of embedded information that most users aren't aware of: GPS coordinates showing where the photo was taken and when, even the camera's serial number. Estrada says the embedded information can be read out of that photo and used as evidence.

I also suggest reading Dick Price's The Increasing Role of Social Media in Family Law Cases

There are many different uses for the social media in a family law case. Fort Worth/Tarrant County divorce lawyers may be looking into someone's relationships in various ways through social media. In addition, witnesses can be researched the same way to find out who they associate with and to capture statements and pictures they have published. This is a tool that is really not very difficult or technical to use, which can lead to some very damaging or beneficial information. Everyone should be very careful about what they permit to be written or pictured, especially if there is any litigation threatened or in progress.

More reading.

Divorce Lawyers Encouraged to Gather Evidence from Social Networking Sites such as Facebook, Twitter and MySpace (Minnesota Divorce and Family Law Blog):

Minnesota Lawyer recently featured an article by Sylvia Hseih entitled Divorce Attorneys are Missing Evidence on Social Media Sites. She reports that sites such as Facebook and Twitter contain a "treasure trove" of legal evidence - especially in divorce cases. She writes, however, that most lawyers are missing the boat.

***

I encourage anyone going through a divorce to modify all of their passwords to prevent a spouse from creating a false profile or modifying information on the social sites in an attempt to cast you in a negative light. It wasn't that long ago that a client pulled up her MySpace page to find that she was already "single" and a "swinger." Of course, her husband denied making those changes and tried to hold it against her in court. Wasn't successful, but I guess he deserves an "A" for creativity - not to mention fabricating evidence.

From Findlaw Law & Daily Life Blog comes Tweeting or Facebooking Divorce: Beware the Private Info You Broadcast:

Social media tools simply add to the long line of communication tools used to deliver the marital knock-out. No doubt there was a first divorce by letter, a first telegraph divorce, a first telephone divorce, and a first email divorce. (Though the public nature of letting someone know on a social networking site is admittedly weird.)

However -- throw an angrily divorcing couple and some social media together, and you can get a spicy stew of information that can be used by divorce attorneys to affect decisions about custody and/or assets.

Basically, social media tools let people put much more of their life where others can see it. Just as people fire off emails with less thought than when they send a letter, tweets or Facebook posts might not seem too serious to the person sending them. Emails can be obtained in divorce proceedings. This applies to tweets, Facebook updates and information pumped through any other social networking tool.

***

Another downside to constantly tweeting what you are doing or updating your Facebook status ad nauseum? The tweets can give a pretty good timeline of a person's activities, location and mood. This can be used to contradict anything they might later say during the divorce. As discussed in Time, testimony in custody disputes about habits like drinking and smoking can be shown false by forgotten photos on Facebook.

A slightly different slant from Lawyers USA 's Family law attorneys are missing evidence on social networking websites:

For example, a parent who is restrained from taking a child out-of-state might post photos of visiting Disney World or other vacation destinations with the child.

Or, in a custody case that Stevens handled, a father denied drug use but the background of his MySpace page featured marijuana leaves.

A person’s LinkedIn profile can contain evidence of earning capacity or job prospects that can be useful in disputes over support payments.

In one case, Rosen cornered a spouse in a deposition who was trying not to pay alimony by claiming he had no real job prospects after being laid off, while his Twitter messages clearly showed he was about to be hired.

Georgia Family Law Blog has Divorce Attorneys Using Social Media to Find Evidence.

Get the idea now? If you did not learn this when you sent your first e-mail that you did not want to send, then you need to learn it now: think three times before you post something to the net. Okay?