Military Service, Jurisdiction and A New Case from The Court of Appeals

Having discussed jurisdiction and service in Got to Have Service on the Other Side and More on Got to Have Service on the Other Side, let me bring up a recent Indiana Court of Appeals case In re: the marriage of Anthony J. Harris v. Teasha J. Harris. Thanks to a lack of personal jurisdiction, the case had to start over.

And before anyone gets overly excited, the case turns on the fact that the husband was on active military duty in Germany and wife failed to comply with the Solider and Sailor's Relief Act and so will not translate easily to a wide range of cases.

The case does bear reading for military service issues. I seem to be having an increase of cases involving service members and the case serves as a good reminder that a different set of rules apply to active duty members of the Armed Services.

The Indiana Lawyer noted the case here: Trial court didn t have personal jurisdiction over serviceman.

More on Got to Have Service on the Other Side

I have to make a comment about a recent case of mine and Indiana Trial Rule 4(E). Adding this to Got to Have Service on the Other Side seemed to make the earlier post a bit too long.

This part of Rule 4 reads as follows:

(E) Summons and Complaint Served Together--Exceptions. The summons and complaint shall be served together unless otherwise ordered by the court. When service of summons is made by publication, the complaint shall not be published. When jurisdiction over a party is dependent upon service of process by publication or by his appearance, summons and complaint shall be deemed to have been served at the end of the day of last required publication in the case of service by publication, and at the time of appearance in jurisdiction acquired by appearance. Whenever the summons and complaint are not served or published together, the summons shall contain the full, unabbreviated title of the case.

Back in January, I had an opposing attorney try to dismiss a paternity complaint on the grounds that their client had never gotten a summons. Opposing counsel would have been on much better ground but for a couple of things:

1. There had not been an emergency hearing about 10 days before;
2. That prior to the emergency hearing, his client had been handed a copy of the paternity petition; and
3. Our local rules on emergency hearings follow the rules for temporary restraining orders, and those rules had been complied
   

Opposing counsel lost his motion to dismiss. It would have been better that a summons had been issued after the emergency hearing just as it might have been a shorter argument if I had remember Trial Rule 4(A) and (E). After all, the opposing party had appeared and the court had acquired jurisdiction by virtue of her appearance.

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

Got to Have Service on the Other Side

The Indiana Lawyer's COA rules on service of summons issues does not report on a family law case, this is subject still needing attention.

Gohl filed his motion arguing the judgment against him was void for lack of service of process. The Court of Appeals judges agreed and reversed, finding the trial court didn't have personal jurisdiction over Gohl when it rendered the default judgment against him. Colonial failed to specifically comply with T.R. 4.13 as it pertained to effecting service of process of publication against Gohl, and it didn't perform a diligent search to determine Gohl's whereabouts. The company relied on one search that turned up a B. Gohl on the opposite end of the state from what county was listed on the mortgage. The Court of Appeals remanded with instructions for the trial court to grant Gohl's motion.

***

The service of summons on the Elliotts didn't follow T.R. 4.1 because the sheriff who served a copy of the foreclosure action at the house didn't also send a copy by first-class mail. The appellate court didn't rule on the issue of whether it was improper because it had found in the Elliotts' favor based on other reasoning. But the judges did caution practitioners, trial courts, and law enforcement personnel to be mindful of the requirements of Trial Rule 4.1(B).

No service, then no further proceedings until there is service.

Why not? Because proceeding would violate federal and state constitutional rights. At a minimum, due process requires notice and a chance to be heard by a court.

Indiana Trial Rule 4 explains a bit more the importance of service:

(A) Jurisdiction Over Parties or Persons--In General. The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law.

This part of Trial Rule 4 sets out what the summons is to have in it:

(C) Form of summons. The summons shall contain:

(1) The name and address of the person on whom the service is to be effected;

(2) The name, street address, and telephone number of the court and the cause number assigned to the case;

(3) The title of the case as shown by the complaint, but, if there are multiple parties, the title may be shortened to include only the first named plaintiff and defendant with an appropriate indication that there are additional parties;

(4) The name, address, and telephone number of the attorney for the person seeking service;

(5) The time within which these rules require the person being served to respond, and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint.

The summons may also contain any additional information which will facilitate proper service.

For those interested in doing their own documents, check with your local County Clerk for forms.

Indiana has 17 rules on service (follow the links to Trial Rule 4.1(B) and Trial Rule 4.13 as mentioned above). I think that pretty much describes the importance of service.

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.

Indiana Divorce - What Is a Child of The Marriage?

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

Something trickier occurs when a question arises as to whether the husband is the father of the wife's child. The Indiana Supreme Court took on this problem in Russell v. Russell, 682 NE 2d 513 (1997):

Before the dissolution court may make a child custody or support determination, it must first determine whether it has jurisdiction to do so, i.e., whether the child at issue is a "child of the marriage." The definition of child of the marriage is spelled out 516 in Ind.Code § 31-1-11.5-2(c)[4]:

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

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

***

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

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

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

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

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

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

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

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

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

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

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.

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.

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

Getting Divorced in Indiana and The Wife Is Pregnant

This post concerns itself with searching Google Scholar for Indiana case law.

I noticed the fallowing query on Google brought someone to this blog: "Indiana divorce law pregnancy". I assumed the person sought information about what to do when the wife is pregnant after start of the divorce proceedings.

Since I do not think that I have written on the specific issue, I thought this was a good time to take Google Scholar for a test drive.

The original query did not work very well and so I tweaked the query until by using "Indiana "dissolution of marriage" pregnant wife" I got some results.

If the search was what to do when a wife is pregnant and father doubts paternity, then I think the following set of facts describes a good procedure for father:

Russell v. Russell, 682 NE 2d 513 - Ind: Supreme Court 1997 - Google Scholar

The Russells were married in 1987 while wife was three months pregnant with J.R. During the course of their marriage, wife gave birth to three children, including J.R.

On October 29, 1993, husband filed for dissolution of the marriage and gained temporary custody of the children. In early 1994, however, the trial court approved an Agreed Entry of Joint Custody and Visitation providing that the children would spend 3.5 days per week with each parent. Later, on April 15, 1994, wife filed an Emergency Petition for Temporary Custody and Petition to Terminate Visitation, wherein she maintained that husband was physically abusive toward the children. Her petition was denied. On May 5, 1994, wife filed an Emergency Petition for Modification of the 1994 Agreed Entry, again claiming physical abuse of the children and also asserting that husband was not the biological father of J.R. On June 15, the trial court ordered DNA testing, but husband would not comply. On February 3, 1995, husband, under threat of contempt for failure to submit to the DNA testing, and wife signed an Agreed Entry of Paternity stipulating that husband was not the biological father of J.R. The trial court initially approved the Agreed Entry, but 515 when wife stated that she did not plan to establish paternity in anyone else, the trial court stated that it would vacate it. Before that happened, wife withdrew the 1995 Agreed Entry.

(Lawyers, notice that the opinion contains the West pagination as well as the West citation.)

Got doubts about paternity? Then file a motion for DNA testing. The same procedure can be found in this case: Richard v. Richard, 812 NE 2d 222 - Ind: Court of Appeals 2004 - Google Scholar.

None of this matters unless the child's paternity is questionable.

Commenting on Prosecutors in Indiana Paternity Cases

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

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

From conversations I have had with women who have used the prosecutor's office to establish paternity, they do not understand how they do not have a lawyer for everything.

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

IC 31-14-4-2

Prosecuting attorney to file action and represent child
Sec. 2. (a) Upon the request of:

(1) the child;
(2) the mother or expectant mother;
(3) a man alleging to be the father or expectant father;
(4) the department; or
(5) the county office of family and children;
the prosecuting attorney shall file a paternity action and represent the child in that action

(b) A prosecuting attorney's office may file a paternity action if the child is:

(1) or is alleged to be, a child in need of services; and
(2) under the supervision of the department or the county office of family and children as the result of a court ordered out-of-home placement.

Filing a paternity action requires establishing paternity, custody, child support and parenting time.

Now let me point out where I think the policy of not representing a parent has problems:

1. Disclosure. Paragraph (a) in the statute says "represent" the child in that action. Not mom, not dad but the child. I doubt any prosecutor's office makes this limitation clear to the parties listed in (a)(2) or (3).
2. More Disclosure. I doubt the prosecutor offices make it clear that they limit their representation after the initial filing. I read action to limit the prosecutor to limit its representation after the paternity determination - which would include custody issues. I have yet to see a prosecutor's office handle a custody fight.

(For why disclosure is such a big deal, give Managing the risk of unbundled legal services a read).

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

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

New Indiana Case Law: Paternity & Custody Settlements

Z.S. v. J.F. discusses how paternit cases differ from divorce cases when settling custody issues.

Given the paramount importance of the child‟s best interests, the trial court shall “conduct a hearing to determine the issues of support, custody, and parenting time,” following an initial determination of paternity. Ind. Code § 31-14-10-1. Indiana Code section 31-14-13-2 provides that the trial court “shall determine custody in accordance with the best interests of the child.”

***

Only where “the mother and the alleged father execute and file with the court a verified written stipulation” or “have filed a joint petition[,] resolving the issues of custody, child support, and parenting time,” may the trial court make findings and orders without holding the hearing required by Indiana Code section 31-14-10-1.

Opinion at 10 -11.

IC 31-14-10-1 reads follows:

Hearing to determine support, custody, and parenting time following initial determination of paternity; order to probation officer to prepare report
Sec. 1. Upon finding that a man is the child's biological father, the court shall, in the initial determination, conduct a hearing to determine the issues of support, custody, and parenting time. Upon the request of any party or on the court's own motion, the court may order a probation officer to prepare a report to assist the court in determining these matters.

So there must be a hearing - or a written agreement to settle custody issues in a paternity case.

Indiana Family Law Resources

I am not sure how many readers take a look at the sidebar because some seem to miss a collection of links I have under the heading of Indiana Family Law Resources.

When I created this list, my thought was to create a mini-portal for the most important sources for Indiana family. That does not work very well if no one notices that the information is here.

Nor is it really much use to those using RSS feeds or who have an e-mail subscription.

Every parent should bookmark the first three links.

• Indiana's Parenting Time Guidelines
• Indiana Child Support Guidelines
• Indiana's Online Child Support Calculator
• Indiana Trial Courts and Clerks
• Indiana's Family Law and Juvenile Law Code
• Indiana Rules of Trial Procedure
• Indiana Rules of Appellate Procedure

If you are looking for a specific trial court, then go to Indiana Trial Court and Clerks. This page is maintained by our Indiana Supreme Court. Find the county and this will take you a page showing contact information for each court in a county, the judge's name, a map to the courthouse, and a link to the county's local rules.

Indiana's Family Law and Juvenile Code takes you to Title 31 of the Indiana Code. Here you will find the statutes on marriage, annulment, divorce, parenting time, custody, paternity. child support, and more.

The Indiana Rules of Trial Procedure contains all the rules needed in handling a case procedurally (as opposed to the substance found i the Guidelines and statutes). Not all apply to family law - such as anything dealing with jury trials - but these need knowing for trying a case and they apply in all counties.

Indiana Rules of Evidence are those rules about what is relevant evidence and how we get that evidence before a court. Don't follow these and you do not get your case made.

Indiana Rules of Appellate Procedure are the rules on how to create and handle an appeal in Indiana's Court of Appeals and Supreme Court.

Well, I hope this helps. Bookmark the specific sites or come back here - these will be here.

Another Paternity Fraud Related Article - Another Proposed Statute

This time from Michigan - Some Mich. dads say paternity law unfair.

A Grand Traverse County court concluded in 2003 that since the mother was married at the time of the baby's birth, Numerick had no legal claim. On appeal, Numerick lost.

"There was literally nothing I could have done to guarantee my rights," Numerick said.

His court case, however, caught the attention of lawmakers. One in particular, state Sen. Michelle McManus, eventually introduced a bill that would amend the Paternity Act, allowing a biological father to bring legal claim until his child turns 1 year old.

Other conditions, too, would need to be met, like submitting to the court a positive DNA test and proof that the mother was legally separated from her husband at conception.

The bill was reintroduced in February and is awaiting further action.

The Family Law Council, a section of the State Bar of Michigan, helped draft the latest version of the bill. But its advisers have cautioned that changes should be slow and steady, one representative said.

"The question is, 'How quickly and how dramatically should the law move in changing the status quo?' " asked Kent Weichmann, legislative chairman for the council.

I will admit that the original article did not make the Michigan law very clear to me.  Indiana has some case law on point that I will need to dig up.

My other posts on the subject are here and here and here. 

Thanks to Family Law Prof for pointing out this article.

More on Paternity Fraud

My own News:  New York Times Rips on Paternity Laws and DNA  and Updating  New York Times Rips on Paternity Laws and DNA seems not to have drawn much attention to you, my readers, but this issue about paternity fraud is very large problem.  Here are some other articles commenting on The New York Times' article I commented on or on paternity fraud more generally.

Jeanne Hannah's Paternity fraud | "Duped Dads" | What's the answer? has wealth of material that applies to more than her Michigan beat.  She states the problem quite well (much more succinctly than did the Times' writer):

The answer is not easy or predictable: There is no right answer. Every case is dependent upon its own unique set of facts and also upon the specific law of the state in the US having jurisdiction over the issues. These are tough questions; they are often expensive and complicated to resolve.

Here is one resource she notes that I was not aware of:

Another valuable resource that examines the consequences and fully discusses The Uniform Parentage Act ["UPA"] is Morgan, Laura: Morgan, Laura Wish, The New Uniform Parentage Act (2000): Parenting for the Millennium, 13 Divorce Litig. 41 (March 2001) [Last accessed November 22, 2009] The UPA would help states resolve these questions in a manner that is, I believe, better for children. The UPA has been enacted in only nine states. Unfortunately, Michigan is not one of them.

Family Law Practice published Paternity which tries to put this kind of problem into context of one father to another.  I think he succeeds.  However, he may have hit on the cause of why this problem festers:  "People don’t like to discuss paternity suits in polite society",

Some of us do not have the luxury of dealing with "polite society" only.  Here are some of those responses.

Paternity Fraud Crusader Carnell Smith Responds to New York Times Hatchet Job from Mens News Daily:

Regarding Chandria, Carnell says his ex-girlfriend said he could only see her if he paid the child support, and Carnell refused. He says the ex-girlfriend said that Carnell and his family couldn't see Chandria unless via supervised visitation. He says his ex-girlfriend and her attorney asked the court to jail him for not paying after the DNA test. He says:

[My] motives have always been clear--to save my family from the clutches of the ex-girlfriend, her attorney and the child support enforcement system. [My] opponents demanded more money while reducing and eliminating my parenting time.

I thought there was little to comment here until I got to this part of the story.  Mr. Smith refused to be a victim.  Other fathers - not all of them duped fathers either - need to know that they do not pay support so that they can see their children.  That is called contempt of court.

Feminist Law Professors has On Forging Sustainable Parental Bonds and this very long paragraph: 

We read the article with a shock of recognition. In a 2003 article, Which Ties Bind? Redefining The Parent-Child Relationship In An Age Of Genetic Certainty, 11 Wm. & Mary Bill of Rts. J. 1011 (2003), we suggested, after a lengthy review of the cases, that couples who wanted the relationship to last rarely inquired too closely about paternity, while at least one of separating couples had a powerful incentive to find out the truth. Yet, parent-child relationships based on the truth had a better chance of surviving than those based on falsehood. We wrote: The only way to forge parental bonds likely to survive the child’s minority therefore is to treat the issue of parenthood separately from the issue of partnership. As a modest effort in this direction, we propose modifying existing law to require mandatory paternity, or second parent, determination at birth. We then concluded that the law should encourage establishing paternity as part of the child’s record, and that waivers should be allowed only where both parents clearly understood that they were forever foregoing the opportunity to challenge the father’s parental status.

We thought it was a good idea then, and we still do.

Now if we can get the state legislatures thinking like this, too.  

I can only describe Fathers, DNA and "Real" Parents from Confessions of An Absentee Father
as a meditation on being a father.  No, it is not a piece by a lawyer but illustrates some of the problems described above by Ms. Hannah and what I think the authors at Feminist Law Professors hope to remedy.

(Having skimmed Confessions of An Absentee Father, I suggest those who would consign paternity issues to some secret backroom take a look.  Here is his description of the blog's purpose:

Nearly twenty-two years ago a life came into this world. I fathered her. It was not planned and her mother and I were not in a relationship. I held her in my hands. I was in awe ... shock ... confusion. Then ... I was gone. Here is what happened in the beginning, what happened afterwards, what's happening now and what I hope happens in the future.)

So far you may notice how complementary all these blog posts are whether written by men or women, and here is another from Mother to Son Blog.  In a post entitled You're Not The Father, the writer has this to say:

Now I’m all for protecting the interest of the child, but what sense does this make. After all, the men stuck paying child support in many of these cases are men who took the obligation of fatherhood seriously. They lived up to what they thought was their responsibility only to find out that they’ve been lied to and that the court system can offer very little, if any, recourse.

Such antiquated laws will only push men to question paternity first and take responsibility later. I would rather see those fathers who acted in good faith be allowed to stop making any furtherchild support payments but be unable to recoup already paid child support payments. 

 (Also, do read the comments to this post).

Paternity Rights: Losing Fatherhood from Nah, Nope, Not Quite Blog seems to lose the point in light of some agenda :

Some advocates now suggest that their be mandatory paternity tests for all fathers at birth to avoid this problem. THIS IS ABSOLUTELY ESSENTIAL. The entire tone of the article suggests a kind of mystification as to why these men would be so upset about this.

Really?

I mean, really?

Only in a country as feminized as America could something like this happen. This is sickening.

His criticism of the article's writer seems misplaced - it is not that we are so feminized (which would probably come as a surprise to the writers of The Feminist Law Professors Blog) but that we are dealing with a very old morality enshrined in our paternity law statutes.  (Having said that, I would have loved to hear what the mother had to say.  In my one case on this subject, the mother had thought my client was at birth and agreed with us that he could not be the father - only the court decided that ordering a paternity test was a bad idea.)

NJ Family Issues Blog has the shortest blog post I have seen on this issue and with the most devastating point being made:

DNA testing provides answers — BUT, are you ready to deal with those answers?

With Who's Your Daddy? One Pillar of Darwinian Psychology I had little hopes but found a true gem.  For me these paragraphs explain why men sign paternity affidavits and do ask for a DNA test in a way that lawyers cannot explain well enough (maybe it is that our brains are too tied to the rules of evidence?).

Men know that they are fathers because their wives say that they are and because they believe their wives.

Fatherhood must involve trust. Until recently it was impossible to verify. It was impossible to say that paternity was an objective fact; it always retained the possibility of being a fiction.

Men just do not want to offend the woman who says they are the father. I add especially when that woman has just delivered a baby.  I have been wanting to say that for a long time.  Thanks to Had Enough Therapy? blog for giving me a basis to do so.

After reading the New York Times article, I watched the move And There Will be Blood.  I was struck by how the movie dealt with a very twisty relationship between a father and a son that echoed the sentiments of the article.  It also seemed to have something to say about the differences between blood kin and those that call themselves brothers.  Then, too, maybe it was an overripe imagination on my part.

Updating New York Times Rips on Paternity Laws and DNA

When I hit publish post on News:  New York Times Rips on Paternity Laws and DNA, I had not reached the last page of the article.  Having now done so, I think here is a solution that I could live with:

Three and a half years earlier, at a federally convened symposium on the increase in paternity questions, a roomful of child-welfare researchers, legal experts, academics and government administrators agreed that much pain could be avoided if paternity was accurately established in a baby’s first days. Several suggested that DNA paternity tests should be routine at birth, or at least before every paternity acknowledgment is signed and every default order entered. In 2001 the Massachusetts Supreme Judicial Court urged the state to require that putative fathers submit to genetic testing before signing a paternity-acknowledgment form or child-support agreement, arguing that “to do otherwise places at risk the well-being of children.”

In other words, the same care that hospitals take ensuring that the right mother is connected to the right newborn — footprints, matching ID bands, guarded nurseries, surveillance cameras — should be taken to verify that the right man is deemed father.

Mandatory DNA testing for everyone would be a radical, not to mention costly, shift in policy. Some advocates propose a somewhat more practical solution: that men who waive the DNA test at a child’s birth should be informed quite clearly that refusing the test will prohibit them from challenging paternity later. Yes, the plan would reveal truths some men might not want to know. Yes, it would raise administrative costs, lower the number of paternity establishments and blow apart some families. But far fewer children would be entangled in traumatic disputes in which men they call Daddy suddenly reject them.

Now the question is how to convince the Indiana General Assembly?

News: New York Times Rips on Paternity Laws and DNA

Today's New York Times' published Who Knew I Was Not the Father?.  For some reading me, this is not really news - I have been reporting on the problems with Indiana and its paternity affidavits for quite some time (check out the archive for my paternity articles).

The Times article points out the problem here (although they get it wrong using birth certificate instead of paternity affidavit but so do most of my clients and potential clients):

Once a man has been deemed a father, either because of marriage or because he has acknowledged paternity (by agreeing to be on the birth certificate, say, or paying child support), most state courts say he cannot then abandon that child — no matter what a DNA test subsequently reveals. In Pennsylvania and many other states, the only way a nonbiological father can rebut his legal status as father is if he can prove he was tricked into the role — a showing of fraud — and can demonstrate that upon learning the truth, he immediately stopped acting as the child’s father. In 2003, a Pennsylvania appellate court bluntly applauded William Doran — who had been by all accounts a loving father to his 11-year-old son — for cutting off ties with the boy once DNA showed they were not related. The judges found that Doran had been tricked by his former wife into believing he was the father of their son, and he was allowed to abandon all paternal obligations.

Courts, of course, deal with paternity cases only when there is a legal dispute. Many men don’t sue because it is expensive or because they suspect they will lose anyway. And then there are those who never even discover the biological truth. How many fall in that category is impossible to quantify. The most extensive and authoritative report, published in Current Anthropology in 2006, analyzed scores of genetic studies. The report concluded that 2 percent of men with “high paternity confidence” — married men who had every reason to believe they were their children’s father — were, in fact, not biological parents. Several studies indicate that the rate appears to be far higher among unmarried fathers.

The article is very long but I cannot do anything but recommend it.  I will point out this is not just an Indiana problem but a national problem.  It is also a problem that needs a legislative solution - the judges have their hands tied by the legislature in making any changes.  About a legislative solution, the article gives an idea that I was unaware of:

The law that Smith helped to pass in Georgia, like a similar one in Ohio, sets no time limit on using DNA to challenge paternity. The premise is that a man shouldn’t be punished for entering a paternal relationship that he would have avoided had he known the truth. It is, Smith says, a correction to a double standard that allows mothers and caseworkers to use DNA to prove paternity but prohibits men from using that same evidence to escape its obligations. But child-welfare experts counter that a child shouldn’t be punished by losing the only father she has ever known — or the financial security he offers — just because he’s upset that she doesn’t share his genes. In 2002 the National Conference of Commissioners on Uniform State Laws — an influential body of lawyers and judges that proposes model laws — drafted a compromise. The proposal would allow the presumed father, the biological father or the mother to challenge the paternity until a child turns 2. The proposal had two goals: to balance the rights of children with those of their presumed fathers and to encourage parentage questions to be raised early in a child’s life, before deep bonds are formed. Several states, including Delaware, North Dakota, Oklahoma, Texas, Utah, Washington and Wyoming, have adopted that model or a variation of it. But men’s rights groups complain that most putative fathers don’t discover the child isn’t theirs until after the two-year window closes — at which point, they have little or no recourse.

I think I should point out that the article delves into the other side of the equation - the effect on children. In this regard, I suggest reading Montana Supreme Court Recognizes Parental Interest in Non-Biological De Facto Parent and Leonard Link's Montana Supreme Court Affirms Parental Rights and Property Settlement for Lesbian Co-Parent.  There is an Indiana opinion or two recognizing a step-parent's right to visitation - or so I recall - that bear a resemblance to the Montana case.

What Do You Know About Indiana Courts? Part Two - Trial Judges & Commissioners

If you have read What Do You Know About Indiana Courts?, you have probably realized that
Indiana has no courts dealing specifically with family law cases.

For the most part, our trial judges have their time taken first by criminal cases and then by civil suits and then family law cases.  What expertise exists for family law cases will be found more in the unelected commissioners.


Recently Madison County offered a good example of what we have for judges.  Our long standing Circuit Judge resigned and the Governor appointed a new judge.  The Anderson Herald-Bulletin described the appointee's resume as:

ANDERSON­ — A man whose legal experience ranges from enforcing the law as a state trooper to trying criminal suspects as a deputy prosecutor has been named Madison County Circuit Court judge

***

Pyle said his experience gives him the ability to view cases from the perspective of law-enforcement officers and with an understanding of legal theory. “It gives me a really well-rounded background to be an effective judge.”

Notice the emphasis on criminal matters?  This is how the press presents courts to the public.  However, Judge Pyle played to the same choir when he was sworn in according to the Herald Bulletin's New Judge Pyle vows ‘respect, reliability, results’:

He noted a recent federal stimulus grant of nearly $1 million that will help the courts consolidate and expand problem-solving courts. Drug court, mental-health court and re-entry court are meant to provide alternatives to nonviolent offenders who may benefit more from treatment and social-service intervention than from incarceration.

Recently, someone commented to an older post of mine, What to do if refused visitation? that lead me to think a bit more about judges.  The comment noted how hard it was to get visitation enforced as opposed to child support.  Why should that be?  Remember that our Circuit and Superior Court judges are elected.  For those complaining about our judges should ask themselves - what attracts you to a judicial candidate when you go vote?   If you look upon a trial judge's judge as being about helping the prosecutor prosecute criminals, I suggest that you need to rethink your complaints about Indiana's judiciary.  So long as the public demands judges talk like prosecutors, we will have judges whose interest in family matters is secondary at best.  Judges will talk the talk necessary to get themselves re-elected.

(Added after the first draft.  I noticed Family Law Prof blog published MacDowell: "When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism" that seems - once one gets past the academic prose to actually touch on this issue but from a different direction.)

What Do You Know About Indiana Courts?

Indiana has two broad types of courts:  trial courts and appellate courts.  The appellate courts mean the Indiana Court of Appeals and the Indiana Supreme Court.

Trial courts mean either Circuit Courts or Superior Courts.  The difference between the two is that the Indiana Constitution created Circuit Courts:

Section 7. Judicial Circuits. The State shall, from time to time, be divided into judicial circuits; and a Judge for each circuit shall be elected by the voters thereof. He shall reside within the circuit and shall have been duly admitted to practice law by the Supreme Court of Indiana; he shall hold his office for the term of six years, if he so long behaves well.
(History: As Amended November 3, 1970).

Section 8. Circuit Courts. The Circuit Courts shall have such civil and criminal jurisdiction as may be prescribed by law.
(History: As Amended November 3, 1970).

The Indiana General Assembly created the Superior Courts.

The following sets out the powers of the Indiana Circuit Courts:

IC 33-28-1-2

Jurisdiction

Sec. 2. (a) The circuit court has original jurisdiction in all civil cases and in all criminal cases, except where exclusive jurisdiction is conferred by law upon other courts of the same territorial jurisdiction.

(b) The circuit court also has the appellate jurisdiction that may be conferred by law upon it.

As added by P.L.98-2004, SEC.7.

And here the General Assembly set out the powers of our Superior Courts at IC 33-29-1-4:

Sec. 4. The judge of a standard superior court:
(1) has the same powers relating to the conduct of business of the court as the judge of the circuit court of the county in which the standard superior court is located; and
(2) may administer oaths, solemnize marriages, and take and certify acknowledgments of deeds.
As added by P.L.98-2004, SEC.8.

No practical difference exists between the two.  Notice that both courts have criminal jurisdiction. Criminal cases take precedence when it comes to scheduling cases and they will be heard by the judge.  Which may make clear why most family law cases are not heard by the elected judge but by a commissioner appointed by the judge.

A few counties have created family courts.  However, it does not appear that these family law courts are separate courts but a program in addition to the court's general jurisdiction.  (This is based on my knowledge of Henry County and extrapolating to the other counties listed as having family courts).

None of the above applies to juvenile courts which have jurisdiction over paternity cases.   Marion County is the only county I am aware of that has a court denominated for paternity cases only  Even then it is part of the Marion County Circuit Court and commissioners preside over the actual court hearings. In other counties, the juvenile court is but a part of a court's regular jurisdiction which means in addition to its civil and/or criminal jurisdiction.  In Madison County, Superior Court 2 is our juvenile court and hears all juvenile criminal cases, CHINS cases, regular civil suits, paternity cases, and dissolution of marriage cases.

The Indiana Supreme Court maintains a Know Your Indiana Courts page that provides more detailed information on how Indiana structures its courts.  You may also want to check out Indiana Code 33-33 which sets out how the Indiana General Assembly organizes the courts in each of our 92 counties.

I will be following this up on the 19th with What Do You Know About Indiana Courts? Part 2.

Local Rule - Shelby County: ADR (Mediation) in Domestic Relations

I wrote about Delaware County's mediation program here, today it is Shelby County's turn.  The judges in Shelbyville created a program that appears to have considered the financial costs to the participants unlike two cases I am dealing with in Madison County. (Note:  Madison County is supposed to be considering a mediation program).

LR73-FL00 Rule 2. ADR in Domestic Relations

1. PROGRAM OVERVIEW. The purpose of the ADR Plan is to provide alternative dispute resolution opportunities to litigants involved in dissolution of marriage, legal separation and paternity cases. The goal is to offer litigants the opportunity to resolve conflict amicably, arrive at acceptable resolutions, have ownership of outcomes, and provide a basis upon which to resolve later issues all with the overriding goal of furthering the best interests of children.

A primary aspect of the program is to provide alternative dispute services to litigants of modest means.

The forms of alternative dispute to be used are mediation, arbitration and family counseling in high conflict cases. Mediation will be the favored process. The parties may agree to submit to non-binding arbitration. Courts may require the parties submit to non-binding arbitration. Court may require the parties to participate in counseling in high conflict matters. If mediation or arbitration are used, the Indiana Rules for Alternative Dispute Resolution apply.

The ADR Plan is to be effective with cases filed after September 1, 2005. The Clerk of Shelby County shall commence collecting the additional $20.00 alternative dispute resolution fee, pursuant to Indiana Code 33-4-13-1, on September 1, 2005.

2. ELIGIBILITY CRITERIA. All domestic relations litigants with custody and/or visitation disputes reasonably expected to take one hour or more of court time to litigate their custody and/or visitation dispute shall be required to participate in the ADR Plan.

A party currently charged with or convicted of a crime under Indiana Code 35-42- et seq. Or a substantially similar crime in another jurisdiction may not participate in the ADR Plan.

3. FINANCIAL QUALIFICATIONS. Litigants whose income is less than 125% of the federal poverty guidelines and have less than $10,000.00 of assets will participate without cost. Litigants whose income is between 125% and 175% of the federal poverty guidelines and have less than $20,000.00 of assets will pay a co-payment of $50.00 per hour for the services of the mediator. Litigants whose income is less than 125% and have $20,000.00 or more in assets will co-pay $50.00 per hour for the services of the mediator. Litigants whose income is greater than 175% of the federal poverty guidelines or who own more than $20,000.00 in assets will pay the mediator the normal hourly rate of the mediator.

4. REFERRAL AND PLAN ADMINISTRATION. Evette Spurling, administrator of the Shelby County Public Defender Program and Pro Bono Program, will be the Plan Administrator. She will be responsible for the initial intake of litigants. If a litigant is determined to qualify for no-cost or reduced rate mediation, they will be referred to a volunteer mediator through the Shelby County Pro Bono Program. If the litigant is determined not to qualify for no-cost or reduced rate mediation, the litigant may choose the alternative dispute resolution facilitator of their choice. If one party qualifies but one does not, they shall be referred to a volunteer mediator and the non-qualifying party shall pay the mediator the normal hourly charge of the mediator.

Attorneys and Judges shall refer the appropriate cases to the ADR Plan. All registered domestic law mediators, including Senior Judges, are eligible to act as mediators under the plan.

Funds generated by the Plan shall be managed by the Shelby County Auditor.

5. PLAN EDUCATION. Information about the Plan, including the additional $20.00 filing fee, its implementation, purpose and goals will be presented to the Shelby County Bar Association, the Shelby County Clerk, and local mental health counselors. The general public will be advised through newspaper and radio outlets.

6. PLAN COORDINATION. The ADR Plan will work closely with the Shelby County Pro Bono Program to facilitate the resolution of domestic relations cases without the necessity of extended court hearings. Participants in the Pro Bono Program in domestic relations cases will be required to participate in the ADR Plan to attempt an amicable resolution of the case. The ADR Plan will provide a funding source for resolution of high conflict disputes for litigants of modest means.

7. PROJECTED BUDGET. The Shelby Circuit Court estimates $3,000.00 will be collected annually. These figures are based on the total number of domestic cases filed in 2004 in Shelby Circuit Court (160) and Shelby Superior Court No. 1 (158). There were approximately 5 private paternity actions filed in 2004. There were approximately 20 domestic relation cases filed in which the filing fee was waived or reduced.

PROJECTED ANNUAL BUDGET

Income $6,200.00

Expenses 6,200.00

Compensation for intake and referral

Coordinator

$13.28/hour x 5 hours/week x 52 weeks = 3,452.80

Publicity regarding program 250.00

High conflict counseling 1,497.20

Mediation* 1,000.00

$6,200.00

*Mediation costs are low because most mediators will serve on pro bono basis as part of their voluntary participation in Shelby County Pro Bono Plan.

9. PROGRAM EVALUATION AND REPORTING. An annual Report containing data related to the Plan shall be submitted to the judicial Conference by December 31 of each year. It shall be the responsibility of the Judge of Shelby Superior No. 1 to prepare and submit the Annual Report. The Annual Report shall be used to evaluate the program in conjunction with ongoing discussions with the Plan Administrator and representatives from the Pro Bono Program. The Judges and representatives from the Pro Bono Program will also evaluate the Plan on an ongoing basis by reviewing exit surveys which each participant will be asked to complete.

Adopted as ADA Plan. Amended and renumbered as Rule 2, September 30, 2005, effective October 11, 2005.