Updated and Corrected: Another Seminar for Parents Going Through Divorce: Grant County Project Growth

I overlooked an e-mail from the Grant Circuit Court Bailiff. She wrote the following:

Project Growth is a program through the Family Service Society. Their phone number is 765-662-9971.

My original post was this:

Grant County has its own program for parents going through divorce. What it is seems a mystery except to its local rules.

3. In all cases involving the custody of children, including but not limited to original petitions for dissolution of marriage or to establish paternity, petitions for custody and modifications thereof, all parties and any children between the ages of 4 and 19 years of age shall attend and complete Project Growth or similar educational program or counseling prior to any final hearing. If parents agree and can show appropriate maturity, education and insight with regard to parenting issues, the Court may waive this requirement. Each party shall be responsible for their own fees, unless otherwise ordered by the Court. Attendance at Project Growth or other program or counseling and payment of fees shall be enforceable by contempt. At provisional hearings, the Courts shall distribute and encourage the parties to read the Project Growth materials prior to attending the meetings.

On March 31, I was in Marion asking questions about the program. Since nothing appears on the Grant County website, I thought to ask the County Clerk's office. They passed me onto the courts. I asked the Circuit Court staff. Bewilderment, confusion reigned and all I got was a telephone number. No one had any more information than a telephone number.

Indiana Paternity Law: An Oddity or Not?

While researching a Motion to Correct Errors for a case under our paternity affidavit statute (go here for all my articles on paternity affidavits), I found Opp v. Davis 133 Ind.App. 365, 179 N.E.2d 298 (1962). The case talks about the social problems of illegitimate children. While the case does not directly touch on my case, I cannot let it go. I do think it has some thing to say to us but in subtle way.

Here are the points I found most interesting. Pardon the length of the quotes and emphases are mine.

...The case, on appeal, is fraught with difficulty which apparently arises out of the change in phraseology and purpose found in said § 3-640, Burns' 1946 Replacement, and § 3-623 thereof, being §§ 1 and 18, ch. 112, Acts 1941, from the phraseology employed in the prior act of 2 R.S.1852, §§ 1 to 22, inclusive, as amended, which were formerly designated as §§ 3-601 to 3-622, Burns' Ann.Sts. The said sections of the latter mentioned act were repealed by § 35 of ch. 112, Acts 1941. The former act, now repealed, was commonly referred to as the 'bastardy' act, and in Saint v. State ex rel. Hosier (1879), 68 Ind. 128, it was held to be a 'civil proceeding' and that 'new trials' could be granted as in other civil cases. The proceedings thereunder were initiated before a 'justice of the peace' by 'any woman' who has been delivered of, or is pregnant with, a 'bastard' child.It may be fair to say that the commonly known opprobrium which unfailingly attached to the defenseless children born as such 'bastard' children, and which frequently attached to innocent, but live-laden and deceived, young girls, and often attached to guiltless, but designed upon, males, exerted a motivating influence for the enactment of said ch. 112 of the Acts of 1941, which, as before stated, repealed the old 'bastardy' act in toto, and also enacted more adequate provisions for the protection of such children and relaxed the rigid code rules of trial procedure which prevailed under the old act of 1852. The whole act, 1941, evinces a consciousness by the Legislature of the fact, as stated by our Supreme Court, that cases of this type, as in juvenile cases, present problems that are 'social rather than legal.' Quotation from State ex rel. Gannon v. Lake Circuit Court et al. (1945), 223 Ind. 375, 385, 61 N.E.2d 168... Consonant, also, with the evident legislative intent to cast these proceedings in a cloak of respectability free from 'scourge of the tongue' (Job 5:21), it is provided in § 3-638, Burns' 1946 Replacement, that 'The court shall exclude the general public from the hearing

The phases of the 1941 act to which we have made reference, together with others that could be mentioned, can lead only to the logical legal conclusion that by the new act of 1941 the legislature sought to wipe out the apparent social inequities of the old act and relax the strict, formal, and rigid rules of trial and grounds for new trial which prevailed under judicial construction of the former act. It is to be noted, also, that the 1941 act in no part thereof provides for a 'trial', with its usual legal connotations. Throughout, it provides only for a 'hearing.' It is a rule of statutory construction that a change of phraseology from that of the original act 'will raise the presumption that a change of meaning was also intended.' Chism et al. v. State of Indiana (1932), 203 Ind. 241, 244, 179 N.E. 718, 719. In changing the provisions of the old act, which had been interpreted by the courts to require a formal trial and a motion for new trial for purposes of a review of the proceedings, to that of a hearing and motion for a new hearing of such proceedings, there can be no more than fragmentary doubt that the end sought thereby was to afford the greatest reasonable latitude in paternity proceedings for the ascertainment of the truth of the accusation made and the consequent protection and welfare of the guiltless children....

Opp v. Davis at 299- 300. And then there is:

...But because of the intimate nature of paternity cases such as this and the almost uncontrovertible ease with which a male may be charged with and found to be the father of an illegitimate child, it seems requisite, in cases such as the present where there exists inferences of access by others than the accused, that such finding should be predicated upon something more than conjecture, chance, or the mere opinion of the mother that the person charged is the father....

Opp v. Davis at 302.

I am bothered by the thought that we are back to the days described in Opp with our use of paternity affidavits.

Oh, for any men thinking we are put upon in paternity cases, let me state that the older paternity statutes allowed for jail time. As always, the law cuts both ways.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Grant County Visitation

Grant County has problems with its Local Rules on visitation. One problem concerns a conflict between Indiana's Child Support Guidelines and the Local Rule. The other problem is a conflict with The Indiana Parenting Time Guidelines.

For practical purposes, I think two points can be made about the problems of the Grant County visitation rules. First, these local rules should apply only to cases to cases that have not been modified to incorporate the Indiana Parenting Time Guidelines. Second, these rules need to be consulted when calculating child support arrears for older child support cases (and this may be the most nightmarish problem I can think of).

What I do like about the Grant County Local Rules are these provisions:

F. The days and times of specific visitation are set forth as rights of the non-custodial parent if the parents cannot otherwise agree. Parents are encouraged to agree to any other visitation and to adjust the times or dates of specific visitation if necessary to reasonably accommodate the other parent.

***

H. The non-custodial parent shall notify the custodial parent at least 48 hours in advance of their intent not to exercise the specific visitation. Children may be very disappointed and hurt if a parent fails to show up when expected.

These ideas do get expressed in the Indiana Parenting Time Guidelines but not quite so bluntly.

The specific Rules conflicting with The Indiana Parenting Time Guidelines read as follows:

6. The non-custodial parent shall have regular visitation with the children at all reasonable and proper times as follows:

B. On alternating holidays during odd (O) and even (E) numbered years as follows:
O from 6:00 p.m. New Year’s Even until 6:00 p.m. New Year’s Day
O Memorial Day weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
O Labor Day weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
O from 6:00 p.m. Christmas Eve until Noon on Christmas Day
O Evening before child’s birthday from 6:00 p.m. until 8:00 p.m.
E Easter weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday
E from 6:00 p.m. July 3rd until 10:30 p.m. July 4th
E from 6:00 p.m. Thanksgiving Eve until 8:00 p.m. Thanksgiving Day
E Christmas Day from noon until 8:00 p.m.
E day of child’s birthday from 6:00 p.m. until 8:00 p.m.
Father’s Day – always with father from 12:00 noon until 6:00 p.m.
Mother’s Day – always with mother from 12:00 noon until 6:00 p.m.

Meanwhile, the Indiana parenting Time Guidelines have this to say about holiday visitation:

2. Holiday Schedule. The following parenting times are applicable in all situations referenced in these Guidelines as “scheduled holidays” with the limitations applied as indicated for children under the age of three (3) years.

A. Special Days.

[1] Mother’s Day. With the child’s mother from Friday at 6:00 P.M. until Sunday at 6:00 P.M.

[2] Father’s Day. With the child’s father from Friday at 6:00 P.M. until Sunday at 6:00 P.M.

[3] Child’s Birthday. In even numbered years the non-custodial parent shall have all of the children on each child’s birthday from 9:00 A.M. until 9:00 P.M. However, if the birthday falls on a school day, then from 5:00 P.M. until 8:00 P.M.

In odd numbered years the non-custodial parent shall have all of the children on each child’s birthday on the day before the child’s birthday from 9:00 A.M. until 9:00 P.M., however, if such day falls on a school day, then from 5:00 P.M. until 8:00 P.M.

[4] Parent’s Birthday. From 9:00 A.M. until 9:00 P.M. with that parent, however, if the parent’s birthday falls on a school day, then from 5:00 P.M. until 8:00 P.M.

B. Christmas Vacation.

One-half of the period which will begin at 8:00 P.M. on the evening the child is released from school and continues to December 30 at 7:00 P.M. If the parents cannot agree on the division of this period, the custodial parent shall have the first half in even-numbered years. In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day. The winter vacation period shall apply to pre-school children and shall be determined by the vacation period of the public grade school in the custodial parent’s school district.

C. Holidays.

In years ending with an even number, the non-custodial parent shall exercise the following parenting time:

[1] New Year’s Eve and New Year’s Day. (The date of the new year will determine odd or even year). From December 30^th at 7:00 P.M to 7:00 P.M. of the evening before school resumes.

[2] Memorial Day. From Friday at 6:00 P.M. until Monday at 7:00 P.M.

[3] Labor Day. From Friday at 6:00 P.M. until Monday at 7:00 P.M.

[4] Thanksgiving. From 6:00 P.M. on Wednesday until 7:00 P.M. on Sunday.

In years ending with an odd number, the non-custodial parent shall exercise the following parenting time:

[1] Spring Break. From Friday at 6:00 P.M. through Sunday of the following weekend at 7:00 P.M.

[2] Easter. From Friday at 6:00 P.M. until Sunday at 7:00 P.M.

[3] Fourth of July. From 6:00 P.M. on July 3^rd until 10:00 A.M. on July 5^th.

[4] Halloween. On Halloween evening from 6:00 P.M. until 9:00 P.M. or at such time as coincides with the scheduled time for trick or treating in the community where the non-custodial parent resides.

The differences vary from the major (Christmas vacation seems a major variance to me) to the minor (several return times differ by an hour or more). I would also point out that Grant County does not have the Parenting Time Guidelines' requirement of a make up visitation. Contempt follows only the denial of visitation and denial along with denial of make up time.

Another major difference comes with Summer visitation. Here is the Grant County Local Rule on Summer visitation:

D. The non-custodial parent shall also have visitation for four (4) nonconsecutive weeks during the summer as follows: the second full week of June, commencing at Noon the Sunday thereof; the last full week of June, commencing at Noon the Sunday thereof; the last week of July, commencing at Noon on the Sunday thereof; and the second week of August, commencing at Noon the Sunday thereof.

The following comes from The Indiana Parenting Guidelines:

2. Extended Parenting Time (Child 3 through 4 Years Old)

Up to four (4) non-consecutive weeks during the year beginning at 4:00 P.M. on Sunday until 4:00 P.M. on the following Sunday, the non-custodial parent to give sixty (60) days advance notice of the use of a particular week.

3. Extended Parenting Time (Child 5 and older)

One-half of the summer vacation. The time may be either consecutive or split into two (2) segments. The noncustodial parent shall give notice to the custodial parent of the selection by April 1 of each year. If such notice is not given, the custodial parent shall make the selection.

If a child attends year-round school, the periodic breaks should be divided equally between the parents.

If a child attends summer school, the parent exercising parenting time shall be responsible for the child’s transportation to and attendance at school.

During any extended summer period of more than two (2) consecutive weeks with the non-custodial parent, the custodial parent shall have the benefit of the regular parenting time schedule set forth above, unless impracticable because of distance created by out of town vacations.

Similarly, during the summer period when the children are with the custodial parent for more than two (2) consecutive weeks, the non-custodial parent’s regular parenting time continues, unless impracticable because of distance created by out of town vacations.

Notice of an employer’s restrictions on the vacation time of either parent shall be delivered to the other parent as soon as that information is available. In scheduling parenting time the employer imposed restrictions on either parent’s time shall be considered by the parents in arranging their time with their child.

As I noted above, the child support part of the Local Rule gives me nightmares:

6. B. Support shall abate to 50% of the regular order during any period of visitation of 7 days or more with all of the minor children. If all the children do not visit for the same 7-day period, the amount of abatement of support shall be equal to the percentage of children who visit times 50%. Examples: if 1 of 2 children visit, the amount of abatement would be only 25% (50% times 50% = 25%), if 1 of 3 visit, the amount of abatement would be only 17% (33% times 50% = 17%) or if 2 of 3 visit, the amount of abatement would be only 33% (66% times 50% = 33%).

This same provision gets repeated in Rule 7 D. The Indiana Child Support Guidelines no longer have his provision but apply a parenting time credit. Brevity suggests that I do not lengthen this post any longer than what it is and so I suggest following this link for more information on the parenting time credit.

Why call this rule nightmarish? Let me give two scenarios. First, calculating child support for an old case means confirming the Summer visitation and how many children went on the visitation and for how long and then add the complication that memories differ about the facts. Second, any modification of child support means modify visitation to get the full time provided under The Parenting Time Guidelines for extended visitation to get the full parenting time credit under The Child Support Guidelines. Well, that is my opinion.

Remember, I do practice in Grant County. If you want more information about retaining me for a case, please give me a call at 765-641-7906.

Grant County Custody

I like this Rule even if it does have technical problems:

4. Some believe that the custody of children is an award given by a Court to the best parent and, therefore, the non-custodial parent is in some way inferior and should only have limited contact with the children by way of visitation. This is not true. Most parents love their children, are truly concerned for their well-being, and are fully fit and proper parents to have custody. A court is required by law to base its difficult decision regarding custody on what it finds to be in the best interests of the children, not what is in the best interests of either parent. Parents are often unaware of the detrimental effects legal proceedings and separation from the non-custodial parent can have on the physical, emotional and psychological well-being of their children and of the need and desire children have to maintain a relationship with both parents.

Therefore, both parents in this case shall:
A. Encourage the children to have an attitude of trust and respect toward the other parent;
B. Encourage the children to have communication and a relationship with the other parent;
C. Avoid any displays of animosity toward the other parent in the presence or hearing of the children; and,
D. Avoid any questioning of the children intended to induce a child to report on the personal affairs of the other parent. [This clause does not apply if the court has determined that a parent is clearly unfit to have visitation]

What are the technical problems? Try to figure out what is the penalty for violating this Rule.

The Rule has great intentions (and its description of what makes a custody determination ought to be read by anyone wanting to understand custody in Indiana - such as those who want to change the presumption to joint custody; see my articles here, here, and here).

Grant County Child Support Rules - Income Withholding Rules

Oops, a couple of problems with this Rule:

2. Except for good cause shown, or pursuant to IC 31-2-10-7, income withholding orders shall be issued in all cases requiring the payment of child support, including provisional orders.

First, 31-2-10-7 no longer exists. Take a look at IC 31-16-15 for the current law on income withholding orders.

Second, I have a small problem wrapping my head around what can be good cause for not using an income withholding order (or wage assignment). See, I think they are a great convenience for my clients paying child support - they no longer need to worry about getting to the Clerk's Office before closing time. It might help to have more of a definition of good cause.

Grant County Medical Expenses Local Rule

Let us take our review of local rules to Marion, Indiana. Grant County rule on medical expenses has two points that need examining. Here is the first:

5. If presently effective, or if available through their place of employment, both parents are ordered to pay the premiums and maintain the children on a health insurance policy, exchange insurance cards, and cooperate with the filing of health care claims for the children. The custodial parent shall be responsible for, pay and document all uninsured health care expenses, including but not limited to medical, dental, orthodontic, hospital, optical, psychological, addiction counseling, and services, prescription and non-prescription health care items, and other physical, mental or emotional health-related expenses for the minor children up to 6% of the basic child support obligation set forth on line 4 of the Child Support Obligation Worksheet. The parents shall then be responsible for and pay any such uninsured medical expenses in excess of said amount at the rate of: father ____%, mother ____%. Example: If the basic child support obligation on line 4 if $200, the custodial parent would be responsible to pay $624 per year in uninsured health care expenses before such expenses would be shared by the parent by the above percentages. [$200 x 52 = $10,400 x 6% = $624.]

What I see here duplicates Indiana Child Support Guideline 1. H.. Which makes it a bit useless as a local rule. If you look at the Child Support Worksheet, you will see that it provides for the percentages set out in this Rule.

For me, the following contains the more important parts of this Rule:

For the purposes of the payment of uninsured expenses after the 6% amount has been paid, the custodial parent shall, within a reasonable time for the receipt of a statement for health care, send a copy of such statement to the non-custodial parent for the payment of the non-custodial parent’s share within 30 days. The non-custodial parent shall then be responsible to pay and hold the custodial parent harmless for the non-custodial parent’s share of that statement; or, if the amount of the statement was paid in full by the custodial parent, reimburse the custodial parent the non-custodial parent’s share of that statement within 30 days.

No other county in my area has such a rule. The first question I have for my clients when they want to file contempt for failing to pay medical expenses is this: have you sent the bills to the other party? A party cannot be held in contempt for failing to medical expenses without their knowing about the bills.

Now comes the sticky part of the Rule, where the paying parent might lose the ability to get reimbursed for unpaid medical expenses:

The custodial parent may bring a contempt action if not timely reimbursed. It frequently is difficult to fairly determine the issue of unpaid health care expenses when a substantial period of time has passed before the issue is brought to the attention of the Court. Therefore, if contempt proceedings have not resolved the payment of health care expenses, the following procedure applies:
A. No later than April 15th of a year they shall determined the proper allocation of payments.
B. In the event that the parties are unable to agree, the aggrieved party shall file with the court a petition for the payment of medical expenses on or before July 1st of that year.
C. Unless good cause is shown, failure to file to enforce the court’s order by July 1st shall be deemed a waiver for the payment or reimbursement of medical expenses for the proceeding year.
D. Any person who unreasonably fails to settle the allocation for health care costs and who thereby causes the other party to incur attorney fees to resolve the issue shall be sanctioned by the imposition of those fees as a part of any court proceedings.

Grant County residents have a time table to settle accounts. Do not settle them by July 1 without a good reason and you are stuck with the bills.

Grant County Clerk, Child Support Information

Clerk, Child Support:

"Child Support (765) 668-6542
Hours, Monday - Friday 8:00 a.m to 4:00 p.m Closed Noon to 1:00 p.m.///////// INSCCU Indiana State Central Collection Unit Mail Child Support Payments to: INSCCU P.O.Box 7130 Indianapolis, IN. 46207-7130 Customer Service: (317) 233-5437 (local) 800-840-8757 or (317) 241-9636 (TTY) Mon-Fri. 7:00 a.m. - 6:00 p.m. Sat. 7:00 a.m. - 12:00 p.m."

Grant County attorney fees

What we do not often see is a Local Rule setting attorney fees but Grant County has one.

1. The standard attorney fee order in all dissolutions of marriage shall be $850, payable as follows: $300 within 30 days, $300 within 60 days, and $250 on or before the final hearing.

I think the essential word in this Rule is "standard" but there is no definition of that word in the Rule. I see nothing unreasonable about the amount of $850.00 where there are not custody issues or pensions or requests for maintenance or real estate issues or enforcement issues. After all, I recently finished a case in Muncie where opposing counsel requested $1,000.00 for a provisional hearing where there no children, no real estate and almost no personal property. I found that unreasonable and the judge awarded only $750.00 (which might be still be unreasonable but by the time we finished the case, the Muncie attorney only got a total award of $1,250.00 and there were maintenance and enforcement issues).

If standard is anything more than preparing a petition, appearing for a short provisional hearing, calculating child support, appearing for a short Final Hearing, and then preparing the Decree of Dissolution, then I have to question what Marion calls a standard divorce. The point where service suffers due to low profits is one not understood by most clients and maybe more than a few judges.

To compare with Madison County's view on attorney fees, take a look at this article.