Remaining Family Law Legislation for This Year's General Assembly

I culled the following list from The Indiana Lawyer Capitol Watch newsletter of the remaining legislation pending in this year's General Assembly. I have not had time to double check the list or what changes exist from earlier stages of the legislative process. But I am providing links to the Bills so that you cna check them out.

Family Law
SB 140 - Various adoption matters including prohibiting a man who is barred from establishing paternity under the adoption statutes from establishing paternity by filing an action as a next friend of the child or requesting a prosecuting attorney to file a paternity action. Status: Ready for enrollment

SB 163 - Requires persons who own or operate a river boat licensed as a gambling operation or a horse racetrack licensed for gambling to withhold cash winnings of obligors for amounts they are delinquent in child support and deduct and retain an administrative fee in relation to withholding the obligor's delinquent child support. Makes other provisions. Status: Ready for enrollment

SB 178 - Provides that if a paternity affidavit is executed, the mother has primary physical custody of the child. Requires an action to establish custody or parenting time of a party who has agreed to share joint legal custody on a paternity affidavit be tried de novo. Status: Ready for enrollment

News - Child Support and Casino Winnings

I reported on this Indiana legislation here. A bit of follow up here from The Anderson Herald Bulletin Indiana House backs taking deadbeat parents' winnings

The bill approved unanimously Thursday would withhold gambling winnings from parents who are behind on their child support payments. Supporters say it makes sense in a state where just 58 percent of child support payments are collected.

***

The withholdings would generally kick in on slot machine winnings of $1,200 or more.

The bill must return to the Senate for consideration of changes the House made.

News - Indiana Paternity Affidavits

Checking the e-mail this morning, I noticed an update on the paternity affidavit Bill making its way through the Indiana General Assembly (SB 0178)(which I have written about here). This comes from the notice i received:

This bill does the following:

1. Permits parents to agree (via separate signature area on the paternity affidavit) to joint legal custody of their child
2. Requires that “under age” (under age 18) parents be counseled by a parent or guardian re: the significance (rights and responsibilities) of signing a paternity affidavit;
3. Extends the time that fathers who are out of the country (such as military) have to acknowledge paternity from 3 days to 10 days before their rights can be terminated and the child placed for adoption;
4. Grants immediate access of the father to the child according to the minimum reasonable frequency and duration according to the Indiana Parenting Time Guidelines that were developed and approved by the Indiana Supreme Court in 2003 (and which are presently beginning their first-ever review NOW);
5. Requires a DNA test to be provided to the Department of Health within 30 days (it will probably be increased to 60 days in Committee) to prove the father’s biological relationship with the child. If the DNA test refutes the biological relationship, the paternity affidavit is voided. The reason for this is that a study has estimated that 27% of those men signing paternity affidavits are not the biological father. Men may still choose to adopt a child who is not biologically “theirs”, but at least that will now more likely be a conscious decision.

I really like and must endorse the requirement for DNA tests. See my articles here and here and here for why I endorse this idea.

Correction to Child Support Duty to End at 19

It was pointed out to me this morning that House Bill 1356 did not pass out of committee. So my post here is wrong. My apologies for not double checking the action list.

Late News - SB0178 Passed out of Indiana House Committee

Robert Monday sent me an e-mail on the 17th that SB 0178 had passed the House committee. I have written before on this Bill here. From what Mr. Monday reported, there were some interesting points raised during the hearing and I think I will have a post on his report later in the week.

Pending Indiana Legislation - Child Support Duty to End at 19

2/22/10 Update: A correction here, the Bill did not pass out of committee and so it died. I leaving this post up because of the interesting comments.

The Indiana House has a bill ending child support at 19 instead of 21. The abstract seems a radical change:

"Duty to support a child. Provides that the duty to support a child ceases when the child becomes 19 years of age. (Current law provides that the duty to support a child ceases when the child becomes 21 years of age.)"

Actually. the statute only changes the age of 21 to 19 while retaining the obligation to provide for education when there is an order for educational benefits. Rather nice to see the General Assembly make a surgical change change to a statute than a complete overhaul (and leaving us to deal with the overhaul's unintended consequences).

This probably is an overdue change. I do not know how many clients have been surprised (more often unpleasantly) that child support does not end at age 18. Maybe worse, I cannot provide an explanation of why support continues to 21. (I have always assumed the reason being that educational benefits came in after the statute establishing child support ended at 21, and the intent was to support children going to post-secondary schools.)

Pending Indiana Legislation - Grandparent and Great-Grandparent Visitation

The Indiana General Assembly has finally recognized that we now have great-grandparents young enough (or even still living) to be involved with their great-grandchildren.

House Bill 1055:

"Grandparent and great-grandparent visitation. Allows great-grandparents to seek visitation rights with their great-grandchildren in certain circumstances. Allows a grandparent or great- grandparent to seek visitation if the grandparent or great-grandparent has had meaningful contact with the child but, as a result of an estrangement between the parent of the child and the grandparent or great-grandparent, the parent of the child terminated the child's visits with the grandparent or great-grandparent. Establishes factors for the court to consider in determining whether granting a grandparent or great-grandparent visitation rights is in the best interests of the child. Provides that a court may order a party to an action for grandparent or great-grandparent visitation to pay a reasonable amount for the cost to the other party of maintaining or defending the action, including costs for attorney's fees and mediation. Specifies that certain agencies are not required to pay costs. Makes conforming changes."

Reading the statute, I can only describe what is being thought of here consists of only adding great-grandparent to the existing grandparent's visitation statute. From its structure, I do not see that prior case law shall be greatly affected - even with the addition of best interest factors - since we will still need to deal with Troxell v. Washington. (But what of a case where grandparents and great-parents both - all? - have visitation rights and no one can agree on scheduling? Well, that is how judges earn their salaries.)

New from the Indiana General Assembly - Paternity Affidavits

The Indiana Senate and House both bills dealing with paternity affidavits. I quote from the General Assembly's abstracts of the Bills but I recommend reading the actual language of each Bill. I have written about the Senate Bill here. The Senate will have a hearing tomorrow at 10:30 am and it may be webcast.

A thought came to me tonight about the Indiana Senate's Bill - it presumes that all men in a paternity situation have a relationship where they want joint custody. I noticed in the past few years where the parties in paternity cases do have a relationship that is far less tenuous than when I started practicing law. On the other hand, would a father appear at the hospital who has not an interest in the child?

While the Senate's Bill seems more concerned with creating a joint custody presumption than dealing with what I see as the real problem of paternity affidavits - fraud. The House's Bill does address fraud but in a rather strange way:

"Paternity affidavits. Provides that a paternity affidavit executed before or after the birth of a child who is born out of wedlock must include: (1) a statement by the mother that the person she has named as the father of the child is the only person who could possibly be the father and that she understands that she has committed fraud if a man other than the named man is the biological father; (2) a statement by the person named as the father that he has reviewed the mother's statements and that he understands that the paternity affidavit may not be rescinded more than 60 days after the paternity affidavit is executed; and (3) a sworn statement that includes an affirmation under the penalties of perjury that the representations in the paternity affidavit are true."

The proposed law places a criminal penalty on the woman but no method for the man to set aside the paternity affidavit based upon her fraud. Current case law makes the whole procedure of setting aside a paternity affidavit tricky. Give a look at my Paternity: New Case on Setting Aside Paternity and Want to Set Aside a Paternity Affidavit in Grant County, Indiana? for a taste of the problems. I might be more impressed if the Indiana House specifically allowed for a procedure to disestablish paternity.

News on Child Support Collection and Indiana Casinos

This in from today's The Indianapolis Star:

A bill that would force casinos to screen jackpot winners for parents who owe child support faces a key hurdle in the Statehouse today.

Senate Bill 163 will get a hearing in the House Public Policy Committee. If it becomes law, it could help recoup some of the $2 billion in child support owed here and boost Indiana's lagging record of collecting it.

***

The Indiana Casino Association is fighting the measure. It says checking names adds red tape and wastes time at the payout desk. Some argue that the casino industry, which is privately run, shouldn't be forced to comply with the mandate.

Indiana ranked 41st among states in the percentage of child support it collected, according to 2008 figures from the federal Office of Child Support Enforcement, the most recent available. Pennsylvania was first, with a 79 percent collection rate.

Not sure if that includes what comes through the County Clerks and private actions, or not.

Bray said pilot projects in other states show that catching debtors at the counter can increase child support collections significantly. He said Colorado collected more than $600,000 in gambling winnings in the first year after a 2008 law took effect there.

The bill also would require children involved in custody cases to be covered by health insurance, a decision federal law leaves up to individual states.

Will have to see the language for the health insurance coverage. And I will refrain from any comments about the federal government pushing this off onto parents while they cannot pass health care reform.

General Assembly Looking to Change Child Support Statutes

The Indiana General Assembly digests the Bill this way:

Various child support matters. Requires persons who own or operate a river boat licensed as a gambling operation or a horse racetrack licensed for gambling games to: (1) withhold cash winnings of obligors for amounts the obligors are delinquent in child support; and (2) deduct and retain an administrative fee in relation to withholding the obligor's delinquent child support. Requires the: (1) gaming commission to place on probationary status, suspend, and deny licenses for gambling games at horse racetracks; and (2) the alcohol and tobacco commission to place on probationary status, suspend, and deny employee's permits; of certain obligors who are delinquent in child support. Provides that a person whose driving license is suspended because of delinquent child support is not required to pay a reinstatement fee to have the person's driving license reinstated. Provides that the child support bureau (bureau) and certain contractors of the bureau may be granted access to information in certain state systems and in certain records of state agencies and other entities, subject to policies adopted to prevent disclosure of certain law enforcement information. Requires a court to immediately withhold income under a child support order established in any proceeding. Provides that a recipient or applicant of the Temporary Assistance for Needy Families program who refuses to cooperate in: (1) a paternity action; or (2) the establishment or enforcement of a child support order; is subject to sanctions or revocation or suspension of assistance. Requires a guardian or custodian of a child to generally cooperate with the bureau and certain other agencies regarding certain paternity and child support matters. Requires a custodial parent and noncustodial parent to provide certain information to the clerk of the court. Provides that a court may consider a child emancipated if the child is on active duty in the United States armed forces. (Current law provides that a court may consider a child emancipated if the child has joined the United States armed forces). Provides that the income withholding provisions apply to any proceeding in which child support is established. Requires an employer to transfer the National Medical Support Notice to the employer's health insurance plan within 20 days after the date of the National Medical Support Notice. Requires an income withholding order form to contain certain information. Provides that an income payor may not distribute income in a manner that would result in one of the current child support obligations not being honored. Provides that an income payor is not required to vary the income payor's normal pay and distribution cycles in order to comply with the income withholding provisions. Requires that a court or administrative agency deem due process met if certain requirements have been met. Provides that various persons are immune from civil and criminal liability for certain acts or for failures to act. Prohibits a person from disclaiming an interest in property up to the extent of the person's child support arrearage. Prohibits a court from considering a parent's absence or relocation due to active military duty as a factor in determining custody or permanently modifying a child custody order. Makes a technical correction.

General Assembly News: Joint Custody, Paternity

I received the following e-mail last week and finally got around to asking for permission to post this today (2/3/20010). I think this is well worth publicizing even if I have problems with this on a practical lawyer level. Here goes:

As many of you know, I have been active for about the last 20 years trying to ensure that, in Indiana, both parents of a child in a non-intact family (paternity or divorce) who desire to do so, and have no good reason to the contrary, have regular and continuing access to their child so that they can parent them: providing financial, physical, emotional and spiritual support.

I have recently been able to get a bill (SB0178) sponsored by Senator Brent Steele (R-Bedford) introduced that would give paternity (unmarried) dads joint legal custody and the statewide minimum parenting time (according to the Indiana Parenting Time Guidelines) upon BOTH the mother's and father's signature of a paternity affidavit, a document usually presented in the hospital to unwed parents upon the birth of their child.

Presently, when a dad signs such affidavit, the mom gets sole custody and he has no guarantee of ANY parenting time for his child. To get such time, he must file a motion with the court, wait (3-4 months) for a hearing date, suffer through numerous continuances (if the mother wants to delay proceedings) and pay various fees in order to get the court to order that he may see his own child. That resulting order is typically the minimum time any parent should have according to the Indiana Parenting Time Guidelines!

Naturally, the state is assisting mom with representation to make sure that child support is ordered and collected, but the same prosecutor who seeks the child support order CANNOT litigate custody or parenting time for the dad! The source of funds which pay for the prosecutor, Title IV-D, specifically forbids that activity. Note that the circumstances and background of the moms makes no difference on whether she gets sole custody of the child, at present, since there is NO hearing of any kind, no presentation of evidence, and no determination of "the best interests of the child" (the standard for divorcing couples) before such custody is granted to her!

If no paternity affidavit is signed, the mother gets sole custody of the child. This bill does not change that, but note that the mother now ALWAYS gets sole custody, regardless whether a paternity affidavit is or is not signed!!

Last Tuesday, we were able to get Senate Bill 0178 passed out of the Indiana Senate committee to which it was assigned for initial review. VERY shortly, it will be voted on by the 50 members of the Senate. There is a great deal of confusion about the bill, with some people thinking that this is a bill which will promote domestic violence (it has NO effect on any DV protections available to anyone), while others think that it will give unmarried fathers more rights than married fathers get. This is also untrue, as married fathers have joint legal custody until, like unmarried fathers would if this bill is enacted, there is a court order to the contrary.

The bill also permits paternity dads who are out of the country (i.e., military duty) to have up to 10 days to file a paternity affidavit before their child may be put up for adoption without their approval. Presently, they have only 72 hours after the birth of the child before their rights may be terminated and the child adopted. It can be very difficult to find out about the birth, get paperwork faxed both directions, and protect his rights in that little time!

I am posting a link below, and ask that you contact your own state senator and ask them to support Senate Bill 0178. Each senator has an email account available at this link. Please let them know that you are one of their constituents, and that you want them to support this bill.

The link for email is:

http://www.in.gov/cgi-bin/legislative/contact/contact.pl

Again, at this time I am most interested in getting Senators contacted. If it passes the Senate, then we will undertake an effort to get it though the Indiana House of Representatives. Historically, the House has been more favorable to this type of legislation than has the Senate, thus the extra effort I am requesting via this message.

***

Please let me know of your senator's commitment or refusal to vote for this bill so that I can track those commitments. Feel free to simply forward their response to you to the above email address, if you wish.

I have never before solicited my friends and business associates before to ask for help like this, but it is the first time we've ever been able to get such a bill this far through the process. I thank you in advance for your help.

Bob Monday

Indiana State Coordinator

The Children's Rights Council
www.crckids.org
317-685-4656

Indiana General Assembly News - Senate Resolution on New State Constitutional Amendment

Having been down with the bronchitis, I am late noting Senate gets resolution on marriage, civil unions. The Indiana Lawyer reported this:

Committee members heard about two hours of testimony Wednesday in the Senate chambers before passing Senate Joint Resolution 13 by a 6-4 vote along party lines. It now moves to the full Senate for consideration.

Authored by Sen. Carlin Yoder, R-Indianapolis, SJR 13 would create a constitutional definition of marriage being between a man and woman. It also would say that "a legal status identical or substantially similar to that of marriage for unmarried individuals" wouldn't be recognized legally. A similar marriage amendment failed to pass the last legislative session and as a result never went before the voters.

***

Yoder told his colleagues that this measure is more strictly focused on civil unions than it was in the past and is specifically aimed at stopping what some describe as "counterfeit marriages" between the same-sex couples. The constitutional amendment is needed now because of legal challenges that have materialized in other states, and Indiana should take the step that 30 other states have done, he said.

Here are some explanations on the votes:

Sens. Greg Taylor, D-Indianapolis; Lonnie Randolph, D-East Chicago; Tim Lanane, D-Anderson; and John Broden, D-South Bend voted against the measure. Sen. Ron Alting, R-Lafayette didn't vote.

Explaining their votes, Randolph indicated he'd changed his vote based on the testimony he heard, and Lanane said he was specifically against it because of the civil-union impact and the economic impact this could have. Taylor said he felt this measure is discriminatory and ties the hands of future generations.

"Who am I to decide what makes everyone else happy?" Randolph said, noting that he supports a marriage between one man and woman. "I can see the underlying effects of what this could mean, and I can't interject my personal feelings and thoughts onto how you feel."

If SJR 13 passes the Senate and House this session, it would still need to be approved during the 2011 session before it could be put on the ballot for voters to decide

I have written before about this - for some reason this issue trumps others of practical importance to Hoosiers - as being bad for anyone living together in Indiana. This year's language seems to only reinforce my opinion. I doubt the resolution leaves the Indiana House but any Hoosier who prefers living together to marriage needs to concern themselves over this legislation.

For other articles dealing with this topic:

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Courts Cost Money

For those wanting to understand a bit more the courts in your life, and for those who think we need judicial reform (particularly child custody matters), this post is for you.

Indiana's Chief Justice must give a yearly State of the Judiciary speech to the Indiana General Assembly. From The Indiana Lawyer's report on his speech, Chief justice: courts handling the tough times, I latched onto the following paragraphs:

The chief justice encouraged lawmakers to support any measures designed to help the judiciary collect all revenue that the law says is due from court operations so that it can go directly to state and county budgets that need it. Because requests for new courts and judges just aren't reasonable because of the economic state, the chief justice urged lawmakers to support legislation that would allow retired magistrates to also work as senior judges to ease local caseloads.

Additionally, the chief justice recommended that lawmakers support legislation that would create a framework for new veterans' courts, problem-solving courts that would allow the judiciary to better deal with those with special disabilities stemming from military service pressures. This would mimic what's already been done with drug and re-entry courts, he said.

"This bill has no fiscal note at all, and indeed the net of these three ideas is revenue positive," he said, adding to a message that the judiciary will do all that it can to assist in these tough times.

***

Chief Justice Shepard also pointed to areas the judiciary has worked on during 2009: a statewide electronic protective order registry system is enacted in every county, and hundreds of law enforcement agencies have used the e-citation system implemented in the past year. He also pointed out the 1,112 attorneys and judges who've been trained to help in mortgage foreclosure cases, and that the judiciary will soon put facilitators into foreclosure-settlement sessions to help. In addition, the number of new volunteers trained as court-appointed special advocates in 2009 increased 26 percent over 2008.

He also spoke about how the state's judicial branch is about ready to unveil new statewide jury instructions that will be easier for non-attorneys to understand and how a statewide assessment tool for juvenile offenders in the Department of Correction has been adopted.

Even if there was a role for a court to act in a more policeman role, that is a more activist role, there is no money for them to do so.

Even more specifically about family law and judge, The Indiana Lawyer published State funding of judges being explored

Lawmakers rejected a southern Indiana county's request this week for a new judge to run a family court, even though it proposes paying for it locally rather than with state money. But in declining to attach the magistrate-turned-judge idea to another bill, a House committee said it wants to keep talking about the issue that could be a policy-altering move in how Indiana pays for its trial court judges.

The House Judiciary Committee approved HB 1154, which would allow Marion County to convert its 24 appointed commissioners to magistrates that hold the same responsibilities but would be able to consider a wider range of issues within each court. The county proposes paying the $2.3 million for those magistrates with a $35 fee tacked on to traffic infractions, which has been collected since 2004 and is by law turned over to the state general fund. The fee initially went into place to pay for jail overcrowding costs, but that issue has been largely resolved and the fee isn't used for that anymore. Now, the state's largest county wants to use that money to save the state from having to pay for the county magistrates or pay for adding new judicial officers.

***

Committee members voted 11-0 in support of the idea, but not before voicing hesitation about a proposal by Rep. Eric Koch, R-Bedford, to amend the legislation so that Bartholomew Superior Court could also convert a commissioner position into a new Superior judgeship starting in July 2011.

This would allow the county to convert a current commissioner, who hears only child support non-payment cases, to a judge that could hear all family-related case types. Bartholomew Circuit Judge Stephen Heimann proposed using the same kind of funding mechanism as Marion County is proposing in its commissioner-to-magistrate conversion - using a fee of at least $20 on traffic infractions that would go to the state general fund. If anything fell short of the estimated $150,000 needed, the county would be responsible for making up the difference. An estimated $189,000 per year could be raised from the fee, and be applied not only to the judge's salary but also benefits, Judge Heimann said.

Even without this having a state fiscal impact, Rep. Trent Van Haaften, D-Mount Vernon, questioned why the proposed amendment didn't call for a commissioner-to-magistrate change as Marion County's proposal did, but rather a commissioner-to-judge. In response, Judge Heimann said it was specifically because the county needed a new family court and needed a judge's authority to hear all of those issues that might come before it.

Just in case anyone thinks this only an Indiana problem, give a read to The Future of Divorce in MN

The court system is in a financial crisis. This crisis has been articulately described by Chief Justice Eric J. Magnuson in highly publicized interviews he has given to the media. I have read some of his interviews, and I have to say that I think he is right. (I also have to disclose that, technically, I work for the Minnesota Supreme Court. My license to practice law is granted by the Minnesota Supreme Court, and in some sense Chief Justice Eric J. Magnuson is my “boss.” Regardless, I feel that he is right and I think that anyone who has an interest in the Minnesota court system should make known to their legislators how important it is that the court system be adequately funded.)

In a practical sense, the lack of funding effects every person who is getting divorced in Minnesota. The court filing fee is now $400. It could increase. It costs $100 to file a motion in divorce court, and it even costs $25 to send a fax to the court. These are the costs that are easy for people to recognize.

However, there are other costs. The funding for child custody and parenting time evaluations in Hennepin County has been reduced significantly. Now, judicial officers are talking about parties using private evaluators. Private evaluators typically charge thousands of dollars for a custody or parenting time evaluation.

Unpaid, overworked describes every court I know of.

A Heads Up for The Indiana Custodial Rights Advocates

I received this notice last week and thought it worth passing along on here:

Meet Your Legislators

Earlier this week representatives of Indiana Custodial Rights Advocates went to Organization Day at the Indiana State House.  We met with legislators and continued to solidify support for Shared Parenting concepts.

The General Assembly will convene again for the first day of the 2010 session on Tuesday 05 January 2010.  We would like to give you the opportunity to join us and personally meet your local Representative or Senator if you would like.  Use this link to find you local legislators. http://www.facebook.com/l/bdd89;www.boonecountyfathers.org/legislativeactivities/yourlegislators.html

Legislators are very limited in the number of bills they can offer during this short session.  It is important that we make our presence known, especially on this first day.  We hope you will be able to join us in helping make Indiana a more child-friendly state.

Please put the first Tuesday of the year on your calendar to come join us at the State House.  Our next organizational meeting is Monday 21 December 2009 at 7:30pm in the Marrott.  The Marrott is located at the intersection of Fall Creek and Meridian Streets in Indianapolis.  Use this page for our latest news and a map for the Marrott. http://www.facebook.com/l/bdd89;www.boonecountyfathers.org/home/latestupdate.html

I have made this point before and will repeat myself:  if you do not like Indiana's laws on divorce (or child support, custody or whatever point of family law bothers you), then you need to take the problem to the Indiana General Assembly.

More About Child Custody Evaluators in Indiana

Ryan Cassman of All Things Family Law - Indiana Divorce & Family Law Blog pointed out to me in his comment to my Fayette County: Local Rule on Custody Evaluators that IC 31-17-2-10 and IC 31-17-2-12 would apply throughout Indiana.  Legislation comes to us from the Indiana General Assembly for applying throughout Indiana.  Local Rules are efforts by the local trial courts to build upon the general.

Notice the General Assembly created a mechanism for using custody evaluators but does not fund custody evaluators.  I have the statutes in full below, and follow this link if you want to compare these with the Fayette County local rule.

IC 31-17-2-10

Professional personnel; court consultation; cross-examination

Sec. 10. (a) The court may seek the advice of professional personnel even if the professional personnel are not employed on a regular basis by the court. The advice shall be given in writing and made available by the court to counsel upon request.

(b) Counsel may call for cross-examination of any professional personnel consulted by the court.

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

IC 31-17-2-12

Investigation and report concerning custodial arrangements for child

Sec. 12. (a) In custody proceedings after evidence is submitted upon the petition, if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by any of the following:

(1) The court social service agency.
(2) The staff of the juvenile court.
(3) The local probation department or, if the child is the subject of a child in need of services case under IC 31-34, the department of child services.
(4) A private agency employed by the court for the purpose.
(5) A guardian ad litem or court appointed special advocate appointed for the child by the court under IC 31-17-6 (or IC 31-1-11.5-28 before its repeal).

(b) In preparing a report concerning a child, the investigator may consult any person who may have information about the child and the child's potential custodian arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian. However, the child's consent must be obtained if the child is of sufficient age and capable of forming rational and independent judgments. If the requirements of subsection (c) are fulfilled, the investigator's report:

(1) may be received in evidence at the hearing; and
(2) may not be excluded on the grounds that the report is hearsay or otherwise incompetent.

(c) The court shall mail the investigator's report to counsel and to any party not represented by counsel at least ten (10) days before the hearing. The investigator shall make the following available to counsel and to any party not represented by counsel:

(1) The investigator's file of underlying data and reports.
(2) Complete texts of diagnostic reports made to the investigator under subsection (b).
(3) The names and addresses of all persons whom the investigator has consulted.

(d) Any party to the proceeding may call the investigator and any person whom the investigator has consulted for cross-examination. A party to the proceeding may not waive the party's right of cross-examination before the hearing.

As added by P.L.1-1997, SEC.9. Amended by P.L.146-2008, SEC.558.

You may also want to go back and take a look at From Fayette County: Contacting the Custody Evaluator Local Rule.

How Indiana Organizes Its Courts

It seems that many people do not know or understand how Indiana organizes its courts.  Indiana has three levels for its courts.

Trial Courts:

Most people understand about trial courts. The divorce or paternity case gets heard by a trial court judge (or the commissioner appointed by the trial judge).  The Indiana Courts web site maintains a portal for Indiana trial courts here.

The Indiana General Assembly sets out by law the organization of each county's court system.

Trial courts will either be Circuit Courts or Superior Courts.  These courts also generally have a civil docket (by which I mean suits for money and family law) and a criminal docket.  I know that Marion County has divided its Superior Courts into those handling only civil cases and those handling only criminal cases.

Because of the workload imposed on the courts, most judges appoint commissioners to handle family law cases.

It is worth remembering that in Indiana most counties still elect their judges (which is not true in all states).  Call that another good reason to vote.

We are also starting a family court program.  So far only twenty-two of our ninety-two counties have joined in this program.  These courts are either Superior or Circuit Courts that are given family court status.

Above the trial courts come the appellate courts.  If one has grounds for an appeal, then it is to the Indiana Court of Appeals that one goes and, maybe, thereafter to the Indiana Supreme Court.

The Appellate Courts:

The Indiana Supreme Court has a page, Appellate Process, describing the appellate process.  I suggest giving it a look.


For more information on the Indiana Supreme Court follow this link and here for the Indiana Court of Appeals.

For those who want to know more, or have a chance to learn or gripe more, should take a look at The challenges of state courts Sept. 9 at IU-Indy:

On Sept. 9, the Indianapolis Lawyer Chapter American Constitution Society for Law and Policy (ACS) will host a panel discussion at the IU School of Law-Indianapolis, where a distinguished panel of jurists will discuss the important matters affecting their respective courts. In addition to discussing issues such as access to justice, regulation of the legal profession, relations with the executive and legislative branches and addressing crises like foreclosure, drugs and immigration, the panel will answer questions from the audience, time permitting.
 
WHO:
• Chief Justice Thomas J. Moyer, Supreme Court of Ohio
• Chief Justice Randall T. Shepard, Supreme Court of Indiana
• Former Chief Justice Laura Denvir Stith, Supreme Court of Missouri
• Panel moderated by Prof. Cynthia A. Baker, Clinical Associate Professor
of Law & Director, Program on Law & State Government, Indiana
University School of Law-Indianapolis

Indiana Family Law: Where the Law Comes From - Part 1

Do you know where Indiana's family law comes from? The answer is: the Indiana General Assembly.

If there is a continual surpise I get from writing this blog, it is how few people understand the role of the legislature. I get gripes, grumbles and outright complaints about the state of Indiana's family law that place the blame and/or remedy solely on the back of lawyers and judges.

Putting the blame on the lawyers and judges is the same as blaming your mechanic for the designs of automotive engineers.  Yes, I realize that puts me in the position of mechanic.  It feels more fitting the older I get.

It is the state legislature that creates the statutes which create the outline of our Indiana family law.  Hoosiers call our legislature the General Assembly.  (Which was created by our 1851 state constitution - see this or for a shorter version, About the General Assembly.)

The General Assembly has an article on how a bill becomes law.   Give How a Bill Becomes a Law a read.

You will find all the laws about family law at TITLE 31. FAMILY LAW AND JUVENILE LAW.

But family law statutes are not the only statutes we need to be concerned with.  The General Assembly also creates the law on court organization.  You will find the following in Title 33 of the Indiana Code:  ARTICLE 28. CIRCUIT COURTS, # ARTICLE 29. SUPERIOR COURTS, ARTICLE 33. COURT SYSTEM ORGANIZATION IN EACH COUNTY, ARTICLE 37. COURT FEES, and ARTICLE 38. JUDGES.

I suggest anyone with complaints about our laws on divorce, child custody, paternity, or parenting time, or child support, contact your local state representative or State Senator.  If you want to find this person, follow this link.

Consider this a good reason to vote.

And for those who might think that the General Assembly always knows what they are doing, I suggest reading Ind. Law - Continuing on with: "Apparently there are all sorts of surprises in the special session budget"; my thoughts from The Indiana Law Blog (and now I will take my tongue out of my cheek).

By the way, for those who want to know why they should a hire a lawyer, this may give you a glimmer of an answer.  It is not enough to read the appropriate articles under Title 31 but know also what is going on in Title 33.

To use another automobile metaphor:  think of Title 33 as the chassis and Title 31 as the engine.

What you might notice missing is any mention of the Child Support Guidelines or the Parenting Time Guidelines or Indiana's Rules of Trial Procedure.  The legislature does not create those documents- those are created by the Indiana Supreme Court.  That is the subject of part 2.

Complaining About Indiana Courts

Let us face facts, our courts are overworked, undermanned, and poorly funded.

What some people think the courts are capable of - the court cannot do (and in some cases, should not do). For example, the courts do not act as policeman in family law cases.

Still one would like to think that our courts are not an open embarrassment. As this report on an Illinois case shows, I might be overly optimistic. The appellate opinion does what the article did not and names the court: Hendricks Circuit Court.

No return telephone call? Ridiculous. I am glad I did not have to explain that to my clients.

Then we have The Indianapolis Business Journal reporting Lawmaker critical of court network's progress:

An effort to put all the state's courts on the same computerized case-management system and make court records available free online has reached only nine counties after seven years.

Supporters say the task is overwhelming and progress has been made despite a five-year false start. But at least one key lawmaker believes it's time to re-evaluate the project, which has cost the state about $20 million so far.

"That's not a very high performance level," Sen. Luke Kenley (R-Noblesville), chairman of the Senate Appropriations Committee, told The Journal Gazette of Fort Wayne. "I think we need to re-evaluate the project as far as where we are going and what we are going to do."

The project's goal is to equip all the state's courts and clerks with a computer system to manage cases, connect court systems with each other, police and state agencies, and make records available on the Internet.

Pay attention to two particular phrases: "manage cases" and "make records available on the Internet".

I know Marion, Madison, Grant, Henry, and Delaware Counties are not on this system. Pretty sure that Hamilton and Howard Counties are not on the system. Which leaves most of Indiana's population off the system. I have no idea how the courts in these counties manage their cases except by something like guesswork and juggling.

If you are wondering why it takes so long to get a court date, if you wonder why it takes so long to get a judgment, I suggest not all the blame falls on the lawyers. I do not think that the blame even belongs on many judges. Blame, if that is what is needed, falls on not funding the Indiana judiciary to meet the 21st century.

The Indiana Lawyer Article on Joint Custody

The Indiana Lawyer gives the joint custody issue attention in Custody concerns Lawmakers support measure calling for joint legal custody in paternity actions.

Glad to see the General Assembly acknowledging that paternity cases are changing:

In House Bill 1511, the legislation would create a statutory set of factors for judges to consider in deciding legal custody in paternity actions. State law currently gives only mothers legal custody for children born out of wedlock, and this bill would modernize Indiana law to reflect how many couples choose to live together and plan or have a family without getting married. It mirrors the conditions in Indiana Code § 31-17-2-15 involving child custody actions.

Thanks to Michael Hoskins for the quotes. I was more than a bit surprised that I talked quite that much.

Thoughts on Presuming Joint Custody Part 3 (Problems and Solutions)

You will find Thoughts on Presuming Joint Custody Part 1 (Introduction) here and Thoughts on Presuming Joint Custody Part 2 (Mothers and Fathers) here.

I have gone on at this length because I think this issue over a presumption of evidence (and that is what is at issue with the proposed change in the law) actually signals bigger problems. Consider this from Sometimes the Deadbeat Dad is a Mom:

How can we use this information to help reduce the “deadbeat” category altogether? The answer may lie in the concept of joint custody and visitation. Statistics show that when non-custodial parents are more involved in their children’s lives through joint custody and visitation arrangements, they pay all or some of their support obligation nearly 85% of the time. Non-custodial parents who do not share custody or visitation pay support less than 62% of the time. Absent circumstances of actual domestic violence, drug abuse or other such “red flags” where joint custody and visitation may not be appropriate, the custodial parent would be well-advised to encourage the non-custodial parent to be as involved with the children as possible. In such a scenario, the custodial parent would benefit, the non-custodial parent would benefit, and most importantly, the children will benefit. Where else in this economy will you be offered the opportunity to engage in a win-win-win situation?

Notice the "and visitation" used above. In response to a comment to a related article, I mentioned that non-custodial parents need to use and to enforce their rights and that included visitation/parenting time. That includes not only the actual visitation rights such as the right of first refusal but also the more informational rules of parenting time.

What we need in Indiana is more information. It may surprise some that our courts do not have records telling us how many joint custody orders get modified to sole custody, or sole custody modified to joint custody, or why those changes are made, or the relationship between those paying support and type of custody order or their visitation habits. Frankly, I could add a lot more to that list but it is enough of a run on sentence as is. This article helped take away the bias my experience has given me towards joint custody.

Interesting Article on Joint Custody - Ottawa Divorce .com Forums gives us arguments for joint custody but it did a bit more for me, too. This article comes from an online forum. For some reason known only to computers the text is too bad for quoting intelligibly. From what I can tell the Canadian proposal did not pass - even though the proponent made the same arguments we are seeing in Indiana. Here is where my inchoate thoughts about the problems being cultural started to take shape. I suggest reading the whole thread on this topic.

I mentioned in Part 1 The Women’s Law Project's testimony at a Hearing Before the Pennsylvania House Judiciary Committee (pdf format) on August 24, 2004 (a copy of the proposed Pennsylvania law is here). The Law Project opposed the change in Pennsylvania law to a presumption of joint custody. Here is the argument that took me away from any leaning to a change in Indiana:

Proponents of joint custody presumptions assert that joint custody benefits both the children and the parents by increasing contact with both parents. While this argument is appealing on the surface and may prove correct in a situation where both parents voluntarily and wholeheartedly commit to a joint custody arrangement, it fails to take into account the all too common post-separation parental relationship that is characterized by acrimony and/or minimal communication. In his essay on the subject of joint custody, Judge Hardcastle, a Nevada Family Court Judge, expressed concern that the presumption of joint custody deters judges from their fundamental obligation to determine the “best interests of the child.”1 He believes that such presumptions pressure judges to order joint custody without carefully and thoroughly examining and considering the facts of the cases before them, increasing the likelihood that joint custody will be ordered in inappropriate cases involving hostile and conflicted parties. (footnote: Gerald W. Hardcastle, Joint Custody: A Family Court Judge’s Perspective, 32 Fam. L.Q. 201, 206 (1998).)

Joint custody requires an enormous amount of effort and determination on the part of parents. When joint legal and physical custody is involved, parents must create two homes fully equipped for themselves and their children, coordinate complicated schedules, and work with each other to make both short-term and long-term decisions involving the children. Significant effort must be made so that children who shift back and forth between two parental residences are not unduly stressed by the arrangement. This is not easy for parents who are not living together and especially for parents who have never lived and parented together. Cooperation and communication are essential to the success of a joint custody arrangement; such an arrangement is incompatible with parents in conflict.

I cannot disagree with either paragraph. I think the idea that we can force people into a joint custody situation that will work to benefit the children is foolish at best. At worst, it has the only benefit of fomenting more acrimonious litigation.

Which brings me to point another topic that I discuss fairly often - collaborative divorce. I do not maintain a separate archive for these articles but they can be found by using the search engines on this blog. The concept takes out the adversarial from a divorce proceeding. I would love to see how many collaborative divorces with children have joint custody and how successful are those joint custody arrangements. I have a sneaky suspicion that joint custody is preferred by people using collaborative divorce methods and their joint custody arrangements are successful.

I think the greatest hurdle for collaborative divorce remains the clients. If clients understand that turning every divorce into a no-holds barred fight to the finish is not always in their best interests, then the lawyers will follow suit. As a lawyer, I can say that most of us will work to settle a case. Others will not return a call or speak to opposing counsel outside of the courtroom. Clients get impressed with the second type of lawyer so long as they realize that their legal fees go up with courtroom appearances and their success rate goes down. After all, aren't lawyers supposed to go to court? No. We are supposed to go to court only if it serves our client's best interests and there can be no compromise. For an example: there can be no compromise if it means sending a child to live with a drug addled mother but figuring out child support arrears ought to be one the parties can settle. Another example: if the parents could agree on a custody arrangement that does benefit all, then the lawyers need to not get in the way of the agreement. They should do so even if it means a loss of fees.

The Law Project testimony pointed out to me that this type of legislation does nothing to deter those wanting to litigate for the sake of litigating:

A presumption of joint custody is simply inappropriate in a custody case. A presumption is not probative; rather, it merely supplies the fact-finder with a conclusion when there is no proof to the contrary.28 Thus, a presumption of joint custody automatically establishes a conclusion that joint custody is appropriate without any information that supports that conclusion and shifts the burden of proof to the party seeking to prove that joint custody is inappropriate.

Presumptions and the resulting shift in burdens are generally created for four principal reasons. First, some presumptions are created because of a natural tendency to burden the party desiring change and/or to correct any imbalance created by one party having better access to the proof. Second, special economic or social policies, more often implicit than outspoken, incline courts to favor one premise by assigning it the advantage of a presumption. Third, out of convenience, a presumption may be created to avoid animpasse or standstill and reach a result regardless of whether or not the result is arbitrary or capricious. Fourth, a presumption may be based on a judicial estimate of the probabilities – that proof of one fact makes the inference of the existence of another fact so probable that it saves time and makes more sense to assume the truth of the second fact until the adversary disproves it.29
26 Barry, supra note 22, at 769-71.
27 Id. at 771-72.
28 See 9 J. Wigmore, Evidence § 2491 (Chadbourn rev. 1981); see also Turner v. Turner, 455 So. 2d 1374, 1379 (La. 1984).
29 John W. Strong et al., McCormick on Evidence § 337 at 415, § 343 at 437-38 (5th ed. 1999); C. McCormick, Handbook of the Law of Evidence 806-07 (2d ed. 1972); see also Bazemore v. Davis, 394 A. 2d 1377, 1381 (D.C. 1978) (citing McCormick)

Sorry about keeping the footnotes but I think they are necessary. Yes, I added the emphasis. Those who think joint custody should be presumed need to explain how this presumption fits into any of these four categories. If it does not, then why are they wanting the presumption? Unless the presumption fits into one our categories of evidentiary law, it will be either unused or misused by the courts. (Which depends on one's perspective to the case in question).

I emphasized part of that quote as it was that sentence where I saw the potential for litigation. Bringing this back to examples: mother is a drug addict but has no convictions and proof is elusive (one of those we know but just cannot prove it), she should be presumed to have joint custody? Therein lies one truth I wish more people would get through their heads: the law can cut both ways. A person may have had a bad divorce, did not get custody of their children and may think a change in the law would have benefited his case. That person may be correct but he does not know of the case where the change benefits a person who does not deserve the benefit.

The Women's Law Project makes another point that applies directly to the proposed changes in Indiana law:

In practice, joint custody can refer to several different types of arrangements. It can include both legal custody (decision-making) and physical custody (living arrangements, daily care and supervision) or it can include only joint legal custody with the child living with one parent. In reality, the latter situation is more typical. In those cases, one parent has primary physical custody but is severely restricted in making significant decisions by the requirement of collaboration. The parent with only shared legal custody retains privileges without the responsibility of day-to-day care. The fallout from such an arrangement is complex and burdensome. Basic decisions, such as selection of the child’s physician or therapist, become the subject of extensive wrangling and manipulation between the noncooperative parents. Even medical emergencies become traumatic, with horror stories of surgeons unable to operate without the consent of both parents.

I omitted the footnotes here. The point is that joint custody means different things to different people. The statute provides no definition of what is joint custody: joint custody but one parent has physical custody or does it mean sharing the children on an equal time share basis?

I apologize for the extreme length but I think we need to take a look at what is going on here. I do not think changing our law to presume joint custody as being in the best interests of the children is a good thing. I do have some suggestions that might be better - at least for a discussion.

Here are the things I think need changing:

1. Stop presuming the adversarial system is the best solution for child custody matters. It works for civil cases involving money, but money does not face the same post-judgment issues as do children. This will require involvement from the Bar, the Bench, the public and some from the legislature for any change. Yes, it means giving collaborative law a boost in this state.
   
2. Provide alternative means to litigation. Not just mediation, but give to the party with the lesser income the ability to forego the upfront costs of mediation. When each party must bear the costs of mediation equally, this creates a hardship for the spouse with lesser income and an advantage to the other spouse.
   
3. Provide adequate funding for guardians ad litem. Better yet, give the counties money for expanding the GAL program and give the GAL the ability to get psychological and custodial evaluations, to get the kind of evidence that might actually help the court to make a decision.
   
4. Require parenting classes. Not just the seminars required by some courts but actual classes with actual tests. Do not pass, no custody.
   
5. Attorney fees for custody cases. Madison County courts rarely award fees in custody cases. I suspect this is true in most counties. Perhaps more importantly, do not award them if the case is frivolous. I have in mind a case pending where the opposing party has no income and their case is weak at best.
   
6. Educate the public on their rights. Probably the hardest thing but the most important. The general public needs to want to learn. Too many think there are generic answers when there is no such thing. (On the other hand, I will admit lawyers exist who mystify the simple). The Indiana Supreme Court has made a great effort to provide information to the general public online. It would be a good thing if the general public read what is freely available to them. Statutes, Parenting Time Guidelines, Child Support Guidelines are like instructions for handling your case. Of course, if you are a person who puts together Christmas toys without reading the instructions first then this may be a good suggestion.