Saturday, February 27, 2010

Indiana Divorce - What Is a Child of The Marriage?

Something here that we lawyers might take for granted but seems to elude non-lawyers. Children from an earlier marriage or relationship are not included as children of the present marriage - even if they are living with you and your spouse.

Something trickier occurs when a question arises as to whether the husband is the father of the wife's child. The Indiana Supreme Court took on this problem in Russell v. Russell, 682 NE 2d 513 (1997):
Before the dissolution court may make a child custody or support determination, it must first determine whether it has jurisdiction to do so, i.e., whether the child at issue is a "child of the marriage." The definition of child of the marriage is spelled out 516 in Ind.Code § 31-1-11.5-2(c)[4]:

The term `child' means a child or children of both parties to the marriage and includes children born out of wedlock to the parties as well as children born or adopted during the marriage of the parties.

The Court of Appeals concluded that the trial court had jurisdiction to enter a custody order regarding the children because they were children of the marriage under the Court's reading of Ind.Code § 31-1-11.5-2(c). Because wife contended that husband was not the biological father of J.R., there was a dispute as to whether J.R. was a child of the marriage. The Court of Appeals concluded that J.R. fell within the definition of a child of the marriage, regardless of whether husband or Griffith was J.R.'s biological father. In so concluding, the Court explicitly disagreed with the interpretation given to the statutory definition of "child of the marriage" by two other panels of the Court of Appeals in R.D.S. v. S.L.S, 402 N.E.2d 30 (Ind.Ct.App.1980), and Friar v. Taylor, 545 N.E.2d 599 (Ind.Ct.App.1989).


We are thus faced with a conflict between the Court of Appeals' interpretation of the definition of "child" in R.D.S. and Friar and in this case.[6] As a matter of grammar, we conclude that the R.D.S. and Friar decisions are correct. Foremost Life Ins. Co. v.Dept. of Ins., 274 Ind. 181, 409 N.E.2d 1092, 1096 517 (1980); Evansville v. Zirkelbach, 662 N.E.2d 651, 653 (Ind.Ct.App.1996), trans. denied (in determining legislative intent, it is appropriate to look at grammatical structure of language in statute). Applying rules of parallel construction, we conclude that the legislature meant to define a single jurisdictional category, children of both parties, and clarified this definition by explaining that it does not matter whether such children are born before or after the parties are married. The definition of "child" contains a phrase and two clauses: (i) "a child or children of both parties to the marriage;" (ii) "children born out of wedlock to the parties;" and (iii) "children born or adopted during the marriage of the parties." Here the legislature used the compound subject, "child or children," in the phrase but only the single subject, "children," in the two clauses; the clauses are parallel to each other. If the legislature had intended to create two separate jurisdictional categories, children of both parties and children born during the marriage, as the Court of Appeals concluded in this case, we believe the legislature would have made the phrase and second clause parallel to each other by using the same subject in the first and third clauses of the sentence. See General Serv. Emp. Union Local No. 73 v. N.L.R.B., 578 F.2d 361, 368 (D.C.Cir.1978) (court looked at parallel structure of statute to determine its meaning). See also Heaslip v. Freeman, 511 N.W.2d 21, 23 (Minn.Ct.App.1994), review denied ("The factor that tips the balance and makes it more likely that the words create only two types of privilege rather than three is the parallel construction of two of the elements....").

We, like the Court of Appeals panels in R.D.S. and Friar, read the statute to say that this one group includes children born out of wedlock as well as children born or adopted during the marriage—as long as both parties are the natural parents (or adopted the child).[7]

Okay, so children of the marriage means children where husband and wife are the parents. What if husband suspects he is not the father?

The inquiry into whether a child is a child of the marriage is a determination by the dissolution court of who the child's parents are for purposes of custody, visitation and support. See generally Ind.Code § 31-1-11.5-2 (definition of child);[8] §§ 31-1-11.5-12 through 15 (support);[9] §§ 31-1-11.5-20 through 23 (custody);[10] §§ 31-1-11.5-24 through 26 (visitation).[11] In paternity proceedings, the inquiry is whether a particular man is the child's biological father. Ind.Code §§ 31-6-6.1-1 through 10.[12] If so, similar determinations as to support, custody and visitation are made. See generally Ind. Code §§ 31-6-6.1-10 through 16.[13]

The Court of Appeals in this case took the position that becauseInd.Code § 31-6-2-1.1(a)(3) provides that the juvenile court has"exclusive original jurisdiction" in "proceedings 518 concerning the paternity of a child," the dissolution court may not make a determination of paternity. Russell, 666 N.E.2d at 948.

We decline to give this subject extensive treatment, both because it is unnecessary to the central issue on appeal here—custody—and because the law in this area is likely to change dramatically in the very near future in the wake of federal and state welfare reform. Paul K. Legler, "The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act," 30 Fam.L.Q. 519, 527-538 (1996).[14] However, we do present some broad considerations.

In many cases, the parties to the dissolution will stipulate or otherwise explicitly or implicitly agree that the child is a child of the marriage. In such cases, although the dissolution court does not identify the child's biological father, the determination is the legal equivalent of a paternity determination in the sense that the parties to the dissolution—the divorcing husband and wife—will be precluded from later challenging that determination, except in extraordinary circumstances. See Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind.1990) (husband entitled to relief from support judgment only in event that "the gene testing results which gave rise to the prima facie case for relief in this situation became available independently of court action."). However, a child or a putative father is not precluded by the dissolution court's finding from filing a separate action in juvenile court to establish paternity at a later time. See J.W.L. by J.L.M v. A.J.P., 682 N.E.2d 519 (Ind.1997) (child); K.S. v. R.S., 669 N.E.2d 399 (Ind.1996) (putative father); In re S.R.I., 602 N.E.2d 1014 (Ind.1992) (putative father).

In other cases, the issue of whether child is a child of the marriage may be vigorously contested. In such cases, the dissolution court has the authority to follow appropriate procedures for making paternity determinations. See Cooper v. Cooper, 608 N.E.2d 1386 (Ind.Ct.App.1993)
(dissolution court has authority to order blood testing during dissolution proceeding to determine biological father). When a dissolution court makes its determination as to whether the child is or is not a child of the marriage under such circumstances and based upon and consistent with the results of the blood or genetic testing, such a determination, (i) in addition to having the preclusive effect on the divorcing husband and wife described in the preceding paragraph, (ii) will constitute a determination in all but the most extraordinary circumstances that the divorcing husband is or is not the biological father of the child, precluding a child, putative father, or other person from challenging that determination in subsequent or collateral proceedings.

There will also be cases like the one before us where the divorcing husband and wifewill attempt to stipulate or otherwise agree that a child is not a child of the marriage. While we disagree with the Court of Appeals when it says that a dissolution court is without jurisdiction to approve such agreements, we certainly believe that it is well within the discretion of the trial court to withhold approval until paternity has been established in another man. See In re Marriage of K.E.V., 883 P.2d 1246 (Mont.1994) (court applied equitable estoppel to prevent mother from denying paternity of husband where mother was not seeking to establish paternity in another man; court reiterated that the holding would not bar biological father or child from establishing paternity in father). In this regard, we generally agree with the Court of Appeals in this case in concluding that L.D.H. was wrongly decided, at least to the extent that L.D.H. stands for the proposition that paternity actions filed in juvenile court collateral to pending dissolution actions are always improper. In fact, such actions may be the only way in which to establish the paternity of a man other than divorcing husband so as to satisfy the dissolution court that the child is not a child of the marriage and permit the divorce to proceed.[15]

In re Marriage of Huss, 888 NE 2d 1238 (2008) gave the Indiana Court of Appeals a chance to discuss what happens when a mother files a paternity action in another county than where the husband had filed his divorce case. I noted this case here.

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