Family Law: Mother's Rights, Father Rights in Indiana

I see a lot of traffic coming to this blog searching under the topics of father's rights, or mother's rights, or non-custodial parents rights, or custodial parent rights. I am sorry to disappoint those people that there are not any posts that explicitly focus on those topics. As for writing about mother's or father's rights, you will not find any post explicitly about those topics on this blog.

Why no posts touting father's rights or mother's rights? I know I could probably get more attention to my blog and probably increase my client base. I do not do this because I think talking about father's rights or mother's rights falsifies Indiana law.

Indiana does not look at whether a mother or a father has a right to custody except for a small exception under Indiana's paternity law. About that, see my article here. Indiana law interests itself in the best interest of the child and not the interests of the parents. That rule applies to child custody, child support, and parenting time (visitation).

Fathers get custody of their children. I have had two cases like that this past year and a third pending. They got custody because we were able to show the child's best interests were better served by the father having custody.

Most mothers do get custody. Fathers do not always want custody. I would say the majority of cases settle with the father agreeing that the mother should have custody.

Nor am I so naive not to know that some judges favor one sex over another. A former judge in another county consistently favored women even when the evidence did not support the mother. I know of another judge, male, who disfavored a mother because she admitted to smoking one joint at a birthday party. Attorneys know these things. There are tools available for dealing with them - choosing which court to file in, motions to change venue, appeals. What we cannot change is the rule of the child's best interests.

I refuse to limit myself just to men or to women. To do so means I must ignore the best interests of the child. I prefer my clients to be the parent who will be in the best interests of the child.

I am even sorrier for those seeking answers to their questions without finding them here. Some would find more if they looked further into this blog such as under the topics of child custody and paternity. There are links to all the topics I have written about down the right hand side of this blog.

Alec Baldwin - poster child for parents taping telephone calls

Never swear at one of your children when you are in a custody battle. Never ever leave a recording of you swearing at your child. Especially not in these days of the Internet. However, that is exactly what Alec Baldwin did with his daughter, an eleven year old.

I picked the story up with today's Washington Post:

On April 11 from New York, Baldwin called his daughter in Los Angeles at an arranged time but found that her phone was turned off. He left a profanity-laced, 2-minute-12-second message, berating her for not answering the phone

I say being a celebrity only magnifies the problems created for a custody or visitation case. Again, from the Washington Post:

Aside from its titillation value, Baldwin's rant already has had legal consequences. As a result of the call being made public, a Los Angeles judge has temporarily suspended Baldwin's visitation rights at least until a previously scheduled May 4 custody hearing.

Expect the same results if you are John Q. Public. The court will be paying attention even if the wider public remains ignorant to of the transgression.

Indiana makes unauthorized interceptions of telephone calls a crime and/or a civil action (see IC 35-33.5-5-4). IC 35-33.5-1-5 defines interception as follows:

(1) recording of; or
(2) acquisition of the contents of;
a telephonic or telegraphic communication by a person other than a sender or receiver of that communication, without the consent of the sender or receiver, by means of any instrument, device, or equipment under this article. This term includes the intentional recording of communication through the use of a computer or a FAX (facsimile transmission) machine.

I say you leave a voice mail and you have consented to its being intercepted and the only question is if the receiver has also consented to the interception. Continuing with using the Baldwin case and the receiver being an eleven year old child, I think the custodial parent gets to decide on whether to consent. So just how often will the custodial parent not give consent so that the recording can be used in court?

Here is the best tip I can give family law clients: regardless of the aggravation, keep cool, be polite, and if you cannot use simple common sense then keep your mouth shut.

Custody and second hand smoke

A short, quick post about a new Indiana Court of Appeals case. With the computer problems from last week, I got way behind in my reading. Timothy P. Heagy v. Kelly K. Kean (PDF format) came down on April 17.

Father wanted custody because mother smoked around child in violation of court order. From what I read, whether the child had health problems which smoking aggravated was not really clear. My reading is that the father was on anti-smoking crusade:

Nevertheless, Heagy requests we take a “strong position” on this issue:

The time has come for the Court to publicly recognize that [second-hand smoke] has severe adverse health consequences on children in Indiana. In keeping with Indiana’s well-established principle of determining what is in the best interests of its children, the Court should take a strong position and declare that [second-hand smoke] is a clear and present danger to the health and welfare of Indiana’s children. The Court should also state explicitlythat exposure to [second-hand smoke] is a factor sufficient to warrant a change in custody.

We leave the decision whether to modify the factors in Ind. Code § 31-14-13-2 to the Indiana Legislature. The factors already provided by the legislature for determining whether a modification of child custody should occur would have permitted the court to modify custody of E.R.H. if there had been a significant change in E.R.H.’s health....

I think we do not explain very well the interplay between the Indiana General Assembly (the people writing our statutes) and the Indiana courts (the people interpreting those statutes). Last year, I had a grandparent's visitation case. After entering judgment, the great-grandfather asked the court directly about how they could get visitation. The commission quite nicely told them to talk to me and I would explain why they could get visitation. I had done so already. I am still uncertain whether I did not explain it well enough or if he just did not trust what I told him. They later took their business to another attorney, so I am betting on the latter.

Getting Indiana courts to do what Father wanted in this case is pretty much impossible. Indiana courts do not like changing the legislature's creations. A crusader like Father in this case needs to look to the General Assembly for changes to the dissolution statute and not Indiana's courts.

Attorney fees, again - Custody Cases Ordering Fees

While catching up on some reading, I ran across the following and wanted to share. The Indiana Court of Appeals described the means for determining when and how to award attorney fees:

1. Start with Indiana Code § 31-17-7-1 (the court may order a party to pay a reasonable amount for the cost of the other party maintaining an action for custody modification and for attorney fees and mediation services.)
2. The trial court has broad discretion in awarding attorney fees which will be upheld so long as the decision is not clearly against the logic and effect of the facts and circumstances. (See In re Marriage of Bartley, 712 N.E.2d 537, 546 (Ind. Ct. App. 1999)
3. The court may consider such factors as the resources of the parties, the relative earning ability of the parties, and other factors which bear on the reasonableness of the award. (See In re Marriage of Bartley, 712 N.E.2d 537, 546 (Ind. Ct. App. 1999)
4. Any misconduct on the part of one party which causes the other party to directly incur additional fees may be taken into consideration. Meade v. Levett, 671 N.E.2d 1172, 1179 (Ind. Ct. App. 1996).
   
5. When one party is in a superior position to pay fees over the other party, an award of attorney fees is proper. Bartley, 712 N.E.2d at 546.
6. Permitting the awarding of attorney fees serves to insure Indiana's policy of equal access to the courts despite the relative financial conditions of the parties. Heiligenstein v. Matney, 691 N.E.2d 1297, 1305 (Ind. Ct. App. 1998)

Haley v. Haley(Microsoft Word format).

Indiana child custody law - changes - age of child

While searching for something entirely different, I found this online here

I live in Anderson, Indiana. My question is that my 12 year old daughter wants to come and live with me but we aren't sure what the age is in our state for her to make that decision. Also, she is afraid of her dad. Afraid how he might treat her/ act if she was to move in with me. Our main concern is what the age is here in Indiana for a child to decide which parent they want to live with.

Reader, you might also want to take a look at the responses to this post. As a lawyer practicing child custody law, this annoys me in several ways:

1. Asking people for advice who have never looked at Indiana's child custody statute.
2. Not calling an attorney.
3. How wrong all the advice was but for the person telling the original poster to call an attorney.
4. That somehow, some way, a certain kind of myth has arisen about the age of child giving the child some say in choosing a custodial parent.

The simple answer is that the child never gets to choose which parent she or he wants to live with. The judge makes the decision about custody based on the best interests of the child. What is in the best interests of the child? Unfortunately for easy answers, no explicit definition exists of best interests. What Indiana law gives us is a list of things which have to be considered in reaching a decision:

IC 31-17-2-8
Custody order
31-17-2-8 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.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.7; P.L.133-2002, SEC.32.

Let me give you a gross and probably grotesque example. If a 14 year old wants to go live in a crack house, no judge is going to find that in the child's best interests. Let us remember that we are discussing children here. They have their whims and the ignorance of inexperience and it cannot be assumed that they know what is best for them.

In the end, I think my greatest annoyance is knowing that this person may have made a poor decision based upon faulty information. Information that ought to have been provided to them at the time of the original custody order. Apparently, it was not. Then, too, this person sought to save some money by seeking advice from non-lawyers. I think custody issues are one place not to be penny wise and pound foolish.

It has been my practice for years to brief my clients on what comes after the Final Hearing. Explain how to modify their Decrees and/or enforce them. I am amazed still how many people come to me after being represented elsewhere and have no idea of their rights to modify or enforce their Decrees. Does mystifying our clients really benefit us? I do not think so.