Thursday, January 7, 2010

Commenting on Prosecutors in Indiana Paternity Cases

Z.S. v. J.F. rises and falls on the issues of notice and knowledge, and particularly how the Hamilton County child support enforcement prosecutor did not deliver a custody petition to the mother. This passage raised something that I have observed for several years now:

Here, Father filed a petition for custody but failed to serve it on Mother, whom he knew was without counsel. Although the Hamilton County prosecutor‟s office received a copy of the petition, it did not forward it to Mother since it was not representing her. Thus, Mother was unaware that custody would be at issue during the final hearing. Based upon the agreed preliminary order, she believed that only issues regarding child support, medical expenses, and tax exemptions were to be resolved during the final hearing. Although Mother attested that she had received the petition for custody when shown the document from a distance, she later testified that she believed the document shown to her to be Father‟s discovery request. At no time during the proceedings, did Mother have benefit of counsel.
From conversations I have had with women who have used the prosecutor's office to establish paternity, they do not understand how they do not have a lawyer for everything.

For a very long time,Indiana law provided for the local prosecutor's office to represent people wishing to establish paternity.

IC 31-14-4-2
Prosecuting attorney to file action and represent child
Sec. 2. (a) Upon the request of:
(1) the child;
(2) the mother or expectant mother;
(3) a man alleging to be the father or expectant father;
(4) the department; or
(5) the county office of family and children;
the prosecuting attorney shall file a paternity action and represent the child in that action
(b) A prosecuting attorney's office may file a paternity action if the child is:
(1) or is alleged to be, a child in need of services; and
(2) under the supervision of the department or the county office of family and children as the result of a court ordered out-of-home placement.
Filing a paternity action requires establishing paternity, custody, child support and parenting time.

Now let me point out where I think the policy of not representing a parent has problems:
  1. Disclosure. Paragraph (a) in the statute says "represent" the child in that action. Not mom, not dad but the child. I doubt any prosecutor's office makes this limitation clear to the parties listed in (a)(2) or (3).
  2. More Disclosure. I doubt the prosecutor offices make it clear that they limit their representation after the initial filing. I read action to limit the prosecutor to limit its representation after the paternity determination - which would include custody issues. I have yet to see a prosecutor's office handle a custody fight.
(For why disclosure is such a big deal, give Managing the risk of unbundled legal services a read).

What makes this all confusing is that federal law has now given all prosecutors a child support enforcement function. Child support enforcement follows after the state imposed duties. Whether the prosecutors are putting the child support enforcement before their representation is not something that I have good evidence for one way or another.

It may be that I am altogether wrong on this. Feel free to leave comments.

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