New Divorce and Family Law Blogs

Bankruptcy and divorce, two subjects existing closer than will please many is the subject of The Interplay Between Bankruptcy and Divorce Law in Virginia. Not exactly a zinger for a blog name but spot on accurate for its content.  The posts concentrate on Viriginia, naturally.  Which does not mean it lacks value for Indiana - just check its bankruptcy reports against our Seventh Circuit.  (I do not expect many differences but what differences exists will probably be significant.)

I found interesting what differences exist between Indiana and Virginia in its Top Ten Costly Divorce Mistakes to Avoid During a Recession (as well as good points for Hoosiers, too):

1. Adultery may eliminate spousal support in Virginia.

Even if our temporary maintenance equals their spousal support, there is no support for this in our statute.  On the other hand, I think our economy and the closeness of income between parties makes maintenance (temporary or otherwise) difficult to get.  For more on Indiana maintenance go my archived articles.

2. Be aware of formulas and guidelines for determining support in Virginia: child support guidelines are the presumptively correct starting point for support; pendente lite spousal support: w/child – 28/58%, w/o child – 30/50%.

This is true for Indiana, too.  Diverting from our Child Support Guidelines means having a very good reason.

3. Alimony: request it, reserve it, or lose it.

Not got alimony in Indiana but maintenance we do have.  Request a provisional hearing and ask for temporary maintenance and save permanent maintenance for the Final Hearing.  But go back and see my comment to 1.

4. You have 2 years to file for an annulment and you may lose your right by cohabitation after knowledge of the facts.

Looks like annulment may be as hard to get in Virginia as in Indiana.  Cohabitation is also a defense in Indiana.  This did point out to me that there is no explicit statute of limitations for annulment in Indiana under the Indiana Code (and certainly none mentioned in any of the available cases).  I suppose that our general statute of limitations on fraud may apply.  For more about annulment in Indiana, follow this link to the annulment articles archive.

5. Do not delay the filing of a motion to modify support upon a material change in circumstances.

Damned good advice.  This applies everywhere.  Even when there is not a recession.  Do not say that you cannot afford a lawyer - find one that will unbundle services or one that takes payments.  Getting behind in your child support means contempt, which can mean jail.  You figure out which is cheaper - a lawyer or jail time.  For my articles on contempt, go here.  For my atricles on attorney fees go here, and for child support articles follow this link.

6. Judges are hostile to the concept of separating under the same roof in Virginia.

Never seen this problem in Indiana.  Especially locally with our post- General Motors economy, judges can have no problem with two people living together who do not want to be married any longer.

7. A suit for a divorce from bed and board can be filed immediately in the Circuit Court. You may be able to obtain pendente lite relief for temporary support, attorney’s fees and costs, protective orders, temporary custody and child support, exclusive use of the marital residence, or a freeze on assets.

Take out the "from bed and board" and add after Circuit Court "or Superior Court", and  take out "protective orders" and , and you have a good description of what Indiana courts can do.  Protective orders need filing separately here.  I have an arichive of my aticles on our courts and an archive on protective orders.  I put in these links so that more specific information is can be gotten to, please use them to get at this information.

8. Consult with your tax advisor concerning the tax consequences of spousal support, allocation of the dependency exemption, exclusion of gain from sale of marital residence, etc.

Another good idea that applies here as well as Indiana.

9. Be careful about leaving the marital residence without a separation agreement.

I do not think this is as a lethal in Indiana as it appears to be for Virginians.   That any agreement is a good thing, I will not deny.

10. Consider the possibility in your agreement that one spouse may file for bankruptcy relief.

Always, always consider the fact of bankruptcy.   Maybe it is all my years when I did practice consumer bankrutpcy law but I am a bit surprised by lawyers who do not think of bankruptcy.

McLean County Divorce comes from Illinois lawyer, Jon D. McLaughlin, with me having a bit of concern over the two months from his last post.  However, Hoosiers still might learn from his Change of Child Custody and Simple Divorces (we have a better procedure here). I have some quibbles with his Suggestions for Fathers going through a divorce but on the whole, it is a good collection of suggestions for Indiana fathers.  Let us hope that Mr. Mclaughlin continues to publish his blog.

Okay, it is Canadian but Collaborative Practice Canada does a more than adequate job of promoting colllaborative law.  I cannot say that anything specifically applies to Indiana but that has is not quite the point either.  If the general public wants a less adversarial approach to family law cases, then the general public needs to know that an alternative not only exists but why it is preferable.  That said, give a look at Collaborative Law - in the interests of families and children..


 Another family law blog, this time from California's Orange County.  Hence the name being Orange County Family Lawyer Blog. It looks fairly new but the articles are clearly written and succinct.  Still fairly new and may interest those who want to contrast Indiana's courts with another state.

More Dads Getting Child Custody

Thanks to Family Law Prof for something I missed - a  New York Times article on more fathers getting custody of their children.  I am naturally skeptical about anything that tries to generalize about 2.2 million people scattered across 50 states.  Then when I reached the New York Times, I learned it was a blog post commenting on

Reading the comments to the comments I was struck by two things.  First being the number of people who toss around unfitness of the parent.  Unfitness of the parent is not the standard in Indiana for a parent-to-parent custody case.  The standard here is best interests of the child - the parent does not need to be unfit.  Unfit means a truly terrible parent.  In a parent-to-parent case, unfitness means a rather simple case.

The second thing was this comment that captures most of my experience up to a few years ago and signals to me a true change for custody cases:

It's not a raw deal at all - it is an expected, and welcome, shift (FWIW I am a mother).

Now that family courts can see that the father has been, and can continue to, provide the day to day and minute to minute care that a young child needs, in 1/2 the cases, he is getting custody. Which is a break from the past where fathers who contested for custody oftentimes were mostly trying to avoid child support payments, and it was clear to the court that the child would be raised largely by a grandmother or aunt or even daddy's-new-girlfriend. Now that fathers have a different role, they have a credible case to make.

This is a sign of progress.

The cases where I have gotten custody for a father after a contested hearing involved mothers who showed poor judgment, a desire to have "fun"  and some involvement in drugs.  The fathers put their children's interests ahead of themselves (which, for me, is the essence of best interests of the child).  Then, too, the fathers had the backbone to fight for custody.

On the other hand, I defended a mother who was struggling to make ends meet, had had to move three times in the preceding year (usually a sign of instability which our courts do not think is in the children's best interests) against a father who tried very had to remove the child from Little League baseball (which the child loved) and who claimed that the child's baby teeth were rotting in his mouth (although his own witnesses testified to not noticing any problems with the child's teeth).

Reading the original article, Custody Lost, I am really struck by how much of its discussion focuses on the amount of time is lost to work.  I did have a Delaware County case this year where mother lost her job and the judge considered that against her as custodial parent.  Indiana's economy has been so bad for so long that  I think we are all accepting that both parents have to work just to make ends meet.  So I am a little confused with these statements:

As progressive as we think we are, the courts haven’t fully grasped the many roles of working mothers. “Culturally embedded attitudes and roles are hard to change,” maintains Diana Dale, founder of the Houston-based WorkLife Institute. “Sometimes it takes three or four generations to make the attitude and behavior shifts.”

Today’s working women still face pressure to function in the traditional mother mode—even after a day at the office, says Ken Neumann, PhD, a New York City psychologist and divorce mediator. “Working mothers have a really bad deal because they have to do everything,” he says. “We don’t put that kind of pressure on men except in unusual circumstances.”

I would prefer to think that we have come to realize that the sex of the parent does matter in a custody case, that some women just as some men have no business having complete control over the raising of their children.  In short, that we look first at what the children need and then at how each parent can contribute to meeting those needs.  That men can meet those needs appears to be as well recognized when properly presented to a judge.  Therein may lie the real story:  that men bring their lawyers good cases who present those cases properly to a judge.

Mind that most of the discussion here has been about contested custody cases.  Settlement can be a good idea if the reason for settlement is the best interests of the child and not from fear.  This paragraph from Custody Lost provides a good insight into my meaning:

Many of us are looking at custody the wrong way, maintains Barbara Glesner Fines, a noted law professor at the University of Missouri–Kansas City School of Law. “The question shouldn’t be ‘How can I get or win custody?’ but rather ‘How can I make sure this re-formed family will function in a way that is good for the kids?’ Divorce is just the beginning of a lifetime of parenting your children with this other person. You’ve got to make that work.”

Finally, more might be learned from another New York Times article, Fathers Gain Respect From Experts (and Mothers). Thanks to Domestic Diversions blog for writing this up (and I do suggest that anyone reading this, go to Domestic Diversions and read the comment to its post. Lots of wisdom in one short comment.)

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.

From Fayette County: Contacting the Custody Evaluator Local Rule

This rule ties in with the Local Rule discussed in Fayette County: Local Rule on Custody Evaluators.

LR21-FL00-FL-14

CONTACT WITH CUSTODIAL EVALUATORS

In the event a custodial evaluation is ordered by the Court, the Court shall direct the parties to contact the custodial evaluator to arrange for an appointment with the custodial evaluator. Other than making contact with the office of the custodial evaluator to arrange for the client’s appointment with the custodial evaluator, counsel shall not initiate contact or otherwise communicate with the custodial evaluator until the custodial evaluator’s report has been issued. Prohibited contact or communication shall include the sending of school records, medical records, affidavits, reports, or any other type of written record by the attorney to the custodial evaluator. Information which may be requested by the custodial evaluator shall be delivered or otherwise presented to the evaluator by the party and not counsel. In the event the custodial evaluator should contact counsel before the evaluator’s report has been issued, such fact should be promptly conveyed to opposing counsel indicating the specific dialogue between counsel and the custodial evaluator. Following the issuance of the evaluator’s report, the evaluator shall be deemed a witness and counsel shall be permitted ex parte communication with the evaluator at counsel’s/client’s expense.

So far, I have not seen a similar rule in Indiana. I suggest careful reading of how the rule forbids either attorney communicating with the evaluator. Such a serious prohibition arouses my curiosity at the implicit fear that counsel might be attempting to unduly influence the evaluation.

While the rule states the evaluator becomes a witness, it is unclear to which party the evaluator belongs - petitioner or respondent. If one party makes the motion for a custody evaluation, the evaluator clearly belongs to the party making the motion. However, what if the court makes the motion?

If you forget that these evaluators cost money, the rule has its subtle reminder for you. These evaluations are not provided at public expense.  However, I am wondering who gets accessed the costs if the court makes the motion.  I assume the court will put the cost on one or both of the parents.

It may be worth taking a look now at  IC 31-17-2-12(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).

Let me say that the list is not exclusive (see the use of 'may" instead of "shall").  As to each of the statutory options, I am not aware of a court social service outside of Marion County.    As one of our local judges said to me last week, the juvenile court would be more likely to say its staff was overwhelmed with its usual work and there is no money in the county for guardians ad litem outside of CHINS cases.  I suspect our probation department and department of child services lack the personnel to add custody evaluations to their job descriptions.  As for private agencies, and I know of none in this part of Indiana employed by any of our courts.  That leaves private agencies employed (meaning paid for) by our clients.  The last custody evaluation I had was from Delaware County and cost $3,000.00.


I make some of these points as a prelude to a post that has been kicking around in my head for a while about custody cases and the costs involved.  I hope later this month to have that article written.

Fayette County: Attorney Fees

I got to admit I like how Fayette County codifies its procedure on attorney fees.  Yes, this is how most courts go about awarding attorney fees but only some put the procedure where everyone can see and understand what is going on.  (For my experience in Grant County, take a look here.)

LR21-FL00-FL-11

FEES

Provisional attorney fees may be awarded based on evidence presented by way of Affidavit (or oral testimony if the Court shall allow) at the provisional hearing. Affidavits shall be admissible subject to cross examination. The following factors will be considered and should be included in any Affidavit submitted to the Court:  the number and the complexity of the issues (e.g. custody dispute, complex asset valuation; the nature and extent of discovery; the time reasonably necessary for the preparation for or the conduct of contested pendente life matters or final hearings. Other matters requiring substantial expenditure of attorney’s time; the amount counsel has received from all sources; and the ability of the opposing party to pay the requested fees and the disparity of income between the parties.

When the Court finds that attorney’s fees should be awarded, the Court may find as reasonable attorney fees an amount of up to Five Hundred Dollars ($500.00) for provisional attorney fees in a “basic/routine” Dissolution of Marriage case.

Appraisal or accounting fees may be awarded based on evidence presented by affidavit (or oral testimony if the Court shall allow) at a preliminary hearing. The following factors will be considered:  itemized list of property to be appraised or valued (e.g. Defined Benefit Pension, Business Real Estate, Furnishings, Vehicles, etc.); an estimate of the cost of the appraisals and the basis therefore; and the amount of a retainer required and the reason an expert is necessary.

There shall be a rebuttable presumption that attorney fees will be awarded to the prevailing party in all matters involving a contempt citation. An attorney may submit by affidavit (or oral testimony if allowed by the Court) along with an itemized statement his requested fee. Affidavits shall be admissible into evidence by the Court.

Final or interim attorneys fees may be awarded based on evidence presented by way of Affidavit (or oral testimony if allowed by the Court) at the final hearing or any interim hearing requested by either party. The same factors as set out above will be considered by the Court.

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.

Being a Witness

Welcome to the hardest job most people will experience in the legal system - being a witness.

From twenty-two years of conversations, I think it is safe to assume that most people do not realize that a witness' testimony is evidence.  The Indiana Rules of Evidence devotes a whole article to witnesses.  Yes, words are just as much evidence as pieces of paper.

The following are some areticle I ran across recently about witnesses and testifying.  Good points in all of them:

Three Mistakes Witnesses Make - ABA Book Briefs Blog

There are lots of seemingly good excuses for a potential witness not to bother with a lawyer. Consider the following:

1. "I'll Just Tell My Story"
Nonsense. You are walking into a strange and unnatural environment, with a great deal at stake, where everyone else is experienced, comfortable, and prepared. You cannot adequately prepare for this challenge without professional help. Period.

2. "It's Too Expensive"
True. Both in time and money. It takes a lot of time, and legal fees today are extraordinarily high. If the witness has to pay a lawyer (I say "if" because an employer or other party may pay the fees; be sure to ask), it adds a new dimension of pain to an already burdensome experience. However, the real issue with cost is always relative. What's the alternative? Here, saving time and money up front by being a witness without counsel or without preparation can cost dearly later in time, money, and heartache.

3. "I Didn't Do Anything Wrong"
This is the toughest and biggest misperception. Most people think that you only need a lawyer if you've done something wrong, particularly in the witness environment. Counsel has to understand this misperception, then help the witness to get around it.

There are times when a lawyer serves as a "defender" of a client who has done something "wrong." However, the reach of investigations, litigation, and other inquiries today is incredibly broad, and definitions of what is wrong vary just as widely. A client needs help in navigating the mess. Given the harm that can come to people as a result of these inquiries, a witness is foolish to enter the world alone.

Preventive Family Law for Nevada: What Not To Do When Testifying in Court!

The following statements are guaranteed to not impress or convince a judge or jury in court:

1. "I have all the records at home/in my truck/at my office, etc. and I can bring them in." Sorry, but you need them right now and you can't stop court to go get them.

2. "Everybody knows that ______ is true." That's not acceptable proof. 'Everybody' needs to testify.

3. "I got it off the Internet, so I know it's right." Think again!

4. "I can get letters from lots of friends/co-workers/relatives/neighbors saying that." Have you heard of hearsay?

5. "I could have gotten the records/pictures/witnesses, etc., if I had just known that I needed them." You should prepare in advance with your lawyer and follow his or her instructions about what you need to bring.

6. "I have it all on my computer." If your computer's not with you today in court, it does no good.

7. "I can bring in lots of witnesses to prove that." If so, you should have brought them in.

8. "They're all lying about me." Sometimes conspiracies happen, but more often it seems likely to be true if a number of live witnesses come into court and say the same thing.

9. "I may have plead guilty, but I didn't really do what they said I did." Sorry, but you can't argue that for a guilty plea. If you were convicted after a trial, you could say you didn't do it and that the jury was wrong, but that still won't get you anywhere. A conviction is a conviction.

10. "Do I have to answer that?" I love to hear that from an opposing witness. That always grabs my attention. 99.9% of the time, the answer is "Yes". I want to find out what you're scared of.

Bottom line: You lose credibility and waste time by using these answers. Anyone about to testify in court should talk extensively with the lawyer for your side to prepare for your testimony. Remember, this is more than a simple conversation over coffee. There are rules and formalities imposed by the court system and you must observe them.

Leading Geeks: On Credibility

As a geek leader, I'd like to say that there's an easy solution to the schism problem, but there's not. Especially if you're a new geek in the company, people won't trust you (since personal credibility must be built). Step on a few land mines (or have a few old pieces of equipment fail), and you have to start from zero again and again. The only way to build credibility is to maintain personal consistency and do your very best to fix the systems or software to eventually be able to maintain technical credibility. It's frustrating, but necessary.

The Pro Child Way

Thanks to Dick Price's Responding to Provocation for tipping me off about How NOT to React to Your EX! | Single Again! Now What?

What is the cinching element to The Pro-Child Way? Mindfulness. It’s that moment where you stop reacting to your ex and let the stillness guide your heart. It’s the breath in, before you say something spiteful about your ex in front of your child. It’s the glance downward towards your child, before your eyes start rolling up in aggravation. Mindfulness is an opportunity – an opportunity that opens your awareness to choice.

***

Here are two good standbys to have in your “do” list:

Do keep smiling, turn, and walk away from your ex

When you become better at multi-tasking, add vocal to the smile/turn/walk routine.

Do sound “hmmmm” then smile/turn/walk away.

In your mindfulness, it’s much better to choose to say nothing than to react with an under-processed thought. It really doesn’t matter if your ex thinks you’ve lost it. It isn’t your ex’s opinion that matters anymore. Your child will benefit from your practice of mindfulness, and you will too. It’s from this point that you can start your journey down The Pro-Child Way.

Go read the full article, I think it will be worth the time (after all, that is why I posted this.)

No Cookie Cutter Cases

This came to me from an e-mail and I thought this person has figured out one thing that eludes a lot of people:

The reality is that each case is going to be unique and there are no "cookie cutter" answers when it comes to relocation.

Substitute "custody" or "divorce" or "child support" or "parenting time" for "relocation" and the truth of the statement remains undiminished.

Family law recognizes the people differ from another makes for a variety of cases.  The statutes provide only a generally outline of the possibilities available to the courts and the parties.  The judge bases a judgment on the evidence and counsel's arguments comes from applying the general rules to the specifics of each.  When the parties think the trial judge has incorrectly applied the law to the facts, there is the option of an appeal.  Even then the law on appeals recognizes the variety of people and cases by using the abuse of discretion standard -  if there is any evidence supporting the judge's decision, then the Court of Appeals upholds the trial judge's decision. (Put most simply, an abuses of discretion occurs when  the trial judge appears to have gone far into left field.)

All this may explain why this blog is not set up for answering specific questions.  The facts determine much and no way does anyone ever give all the facts.  They are a subtle thing these facts.

It may also explain why you cannot find a quick, specific answer to what appears to you to be a simple question.  They do not exist.  What does exist are the facts of your case, the general rules found in the statues and Rules, and the less general rules found in the case law.  You who are looking for specific, simple answers are going about it wrong.  You need to do what us lawyers do:  study the statutes, study the Rules, study the case law, and think of how all this applies - think about the whole range of possibilities.

Indiana Child Custody and Relocation Case

Thanks to the flu and an eight year old with a broken leg, I have been tardy in writing here. I offer this in an attempt to catch up:

Court remands custody case for new hearing

In Anita (Handy) Oberlander v. Kevin Handy, No. 08A04-0903-CV-121, Anita Oberlander and Kevin Handy had a tumultuous and violent relationship which led to Oberlander relocating to South Carolina with her four children, one of which was Handy's daughter. After only three months of marriage, Oberlander filed for divorce and sought a protection order.

Before their final hearing, Handy's visitation with his daughter from another marriage was halted because of his behavior. He also continued to contact Oberlander despite a protection order and only stopped when he was ordered to under his probation for domestic battery and other charges as a result of an incident with Oberlander and a police chase.

Oberlander was unable to find an attorney through legal aid or attend the final hearing in Indiana because of financial constraints. She also claimed she feared for her and her daughter's safety. The trial court proceeded in her absence and ruled in Handy's favor, granting him full custody of A.H. Judge Patricia Riley noted in her dissent this was the same judge who ordered a stop to Handy's visitation with his other daughter. The trial court determined Oberlander had abandoned Handy and hindered visitation, and her conduct was "unconscionable."

Oberlander filed a request for relief from judgment because of fraud. The trial court ordered an investigation by the Department of Child Services, which recommended Oberlander have custody of the daughter and Handy have supervised visitation for the time being. The trial court denied Oberlander's request, finding she didn't prove fraud.

Catching Unasked Questions - Indiana Family Law

John Bolch's post Q & A inspired me to try my hand to address Google queries that brought some to this blog.  The queries are in bold and my responses are in plain text.

Remember what my disclaimer says about answering specific legal questions - see it on the right hand side and down.

Who mediates child support modification in Indiana


A: Hard to tell from this query if the searcher wanted to know who made the decision about child support modifications or if they really wanted to know about mediation. If they actually meant mediation, then it is whoever is chosen as the mediator.  Otherwise, it will be left up to the court that set the original support order.  See, the court (paternity or divorce) that made the original order keeps jurisdiction of the case. (Getting a different judge is a different matter).


How to interpret the Indiana parenting guidelines

A.  Another query seriously lacking in specificity.  The general rules for interpreting a rule or statute:  1) the specific provision controls the general, and 2) the thing must be read as a whole  (the tail does not wag the dog). 

Indiana law teenager rights visitation

A.  Yes, they exist and apply to teenagers.  You need to read the Indiana Parenting Time Guidelines.  You will find a link to the IPTG on the right hand of the screen and down. 


Cohabitation agreements Indiana

A.  Is it time for a FAQ (Frequently Asked Questions)?  We have them.  I suspect you can find a form online but there is no officially prescribed form.  Check out the cohabitation archives here.



Indiana modification of custody forms

A. I have been saying this for a long time, Indiana has no official forms.  You can find versions of forms online.  I suggest reading my for the pros and cons on forms. 


"post-nuptial agreement" +indiana

A. See my articles here. 



Successful cases winning annullment; indiana annulment laws


A.  These searchers did not stick around to read anything written on here about annulment.

Let me explain that if these people were looking for information on successes winning cases on the trial court level in Indiana they will never find this information on the Internet. As these people were searching for annulment, they probably did not see this article.  I did a search for annulment cases at  the appellate level and published my results here.



Indiana laws for unmarried fathers


A.    I am going to be very technical for a second:  Indiana has no law for unmarried fathers only for paternity cases.  The laws apply to unmarried fathers and mothers.

Unmarried fathers need to look at IC 31-14, The Indiana Parenting Time Guidelines, and the Child Support Guidelines.  There you will find the general law in Indiana for unmarried parents.



Can a child determine which parent they want to live with in indiana; a child%27s right to choose

A.  No. 


Emergency custody for fathers in indiana

A.  I suspect this searcher wound up not finding what he might have found if he had just looked for "emergency custody in Indiana".  Even then he would not be happy with what he found - there really is nothing specific about what is meant by emergency custody in Indiana.

I explain this more here.



Indiana custody law attorney fees

A.  If the searcher was looking for a specific answer, they were unlucky.  I do not know of anyone who will specify their fees online. As I told someone yesterday, there are too many details needing to be known before even giving an estimate of fees for a custody case.  I will suggest that anyone thinking of a custody case budget at a minimum $3,000.00.


best family law attorneys indiana

A.  I found this one amusing.  There being more art to the law than science, judging a best lawyer is a lot like judging between Leonardo da Vinci and Michaelangelo. 

Damned hard to think of how to define "best"  when so much depends on each case.  A terrible lawyer can do quite well with good facts while a great lawyer can do little with bad facts.  The clients bring us the facts of the case and we have to live with them.  The better lawyes know when not to take a case.


"common law marriage" indiana

A.  There is none.  Look at the articles on cohabitation here.

How to Lose a Custody Case Fast

Consider from TN Mother Shoots Father in Presence of Children and Thereby Hands Father CustodyFlorida Divorce * Child Custody * Domestic Violence Law Lawyer as another example of how people create the facts of a case:

Tennessee Father and Mother are divorced. Father and Mother have two daughters together.

Mother allegedly shoots Father in the leg. In the presence of their two daughters.

If for no other reason, Father wins temporary custody of their two daughters.

Hard to imagine a better example of what is not in the children's best interests.

I was thinking what if mom had a good reason for shooting the father and decided that I ought to see what had happened since the above blog post.  After all, what if mom had a good reason?  In Indiana, this might give an opening for a third party to seek custody.

Google turned up the following:
Nurse Shoots Ex-husband to Exorcise Demons

Her bizarre motive for the shooting was revealed when police uncovered her diary in which she detailed the shooting:

"Terry is filled with three demonic spirits. One is assigned to me, one to each of my children. The purpose is to destroy us. The only way Terry will stop trying to destroy us is if the spirits exit his body today. I will have to create three portals of exit, that way they can leave."

Tina Loher drove her two daughters, ages 5 and 7, to the clinic and left them in the parking lot while she went in and confronted her ex-husband.

Court records show that the Lohers are involved in an ongoing dispute over the children.

 Tina Loher Creates A Portal To Release Ex’s Demons

Driving from Knoxville to Chattanooga with her girls (5 and 7 years old) in the vehicle with her, she allegedly pulled in front of his chiropractic office, left her children in the car and marched on in for a little confrontation. She pulled out a .38 caliber and created the first portal…in his groin. He states she was speaking in tongues. When the gun fired and Dr. Loher was hit, his staff and patient hauled ass as he fought back. He doesn’t exactly know if he knocked her unconscious because as soon as he hit her, he tended to his wound in an attempt to control the bleeding. (and gauging by her mugshot, he got in a pretty solid punch – something he may have been wanting to do for some time)

Employees from a neighboring business pulled the girls inside while police sorted out the crime scene. Per one Prudential employee, the oldest daughter asked, “If my mom has murdered my dad? Is she going to go to jail? Where is she going to go?” A DCS employee stated the 7 year-old knew exactly what was going on and what her mother intended to do. The grand protector of her children discussed her elaborate demon ridding plans to those two young girls. I truly believe in sharing realistic things with children but I also tend to believe that material should be age appropriate. I’m not confident the discussion of blowing portals in their father via a .38 caliber weapon is age appropriate but children grow up so fast these days.

Dr. Loher underwent surgery to repair the damage caused by the gun blast and was able to make a teary appearance when his ex-wife was due in court. Putting forth the assertion that his ex was tenacious by nature, he feared that spirit would over-ride what ever logic she may possess and she’d set out to finish the job. With this information, the judge must have concurred and he increased her bail from $140,000 to $600,000 and she has been charged with attempted first-degree murder and two counts of reckless endangerment.

ONLY ON 3: Signal Mtn. Shooting Victim Talks to Eyewitness News has some background but not much meat.

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

More on Using School Information for an Indiana Custody or Relocation Case

Although The Anderson Herald Bulletin's ISTEP+ scores show wide gaps among schools pertains to Madison County, this sort of same information is available for other schools.

ANDERSON — Three of Madison County’s five largest school systems performed at or above the state average on ISTEP+ English and math results released Wednesday by the Indiana Department of Education.

South Madison had the highest overall test scores for school corporations in the county, followed by Frankton-Lapel and Alexandria schools, all of which met or exceeded the statewide average in math and English.

Meanwhile, Anderson and Elwood schools on the whole continued to underperform statewide averages on standardized tests given to students in grades 3-8.

None of the school systems approached Superintendent of Public Instruction Tony Bennett’s goal of 90 percent of students passing ISTEP+.

New elements of the ISTEP+ make comparisons to previous years difficult.

ISTEP+ was administered in spring instead of fall, as past tests were. ACS interim Superintendent Lennon Brown said the tests measure student aptitude at their current grade level, whereas past ISTEP+ tests measured student achievement at the grade immediately below their current level.

Also, science testing was expanded to include grades 4 and 6, and a social studies test was given for the first time in grades 5 and 7.

Corporationwide, Anderson Community Schools students had a pass rate of 58.5 percent on the English and language arts portion of the test, well below the state average of 70.8 percent.

In math, ACS students averaged a pass rate of 60.2 percent compared with 72 percent for the average Indiana school system.

I think it could be useful for those seeking information on the qualities of a particular Indiana school.  See my Using School Information for an Indiana Custody or Relocation Case for what I wrote earlier on this subject.

Using School Information for an Indiana Custody or Relocation Case

I propose not to so much write about how to use school information but to point out two recent sources of information.  Another, not mentioned here, are our ISTEP testing scores.

The Herald Bulletin - SATS up at ACS, but lag state, national scores

Randall Lee, director of accountability for Anderson Community Schools, said the improvement comes as even more students took the test last school year — 238 compared with 229 the year before.

Lee provided details of ACS’s performance on the Scholastic Aptitude Test, which many colleges and universities use as a guide for student admissions. Among them:

u Math: ACS’s average score was 485, an increase of 13 points. Anderson High’s average: 476, an increase of 20 points. Highland High’s average: 491, an increase of 6 points. Indiana average: 507, a decrease of 1 point. National average: 515, no change.

u Reading: ACS: 496, up 2 points. Anderson: 463, up 8 points. Highland: 474, down 3 points. Indiana: 496, unchanged. National: 501, a decrease of 1 point.

u Writing: ACS: 454, up 7 points. Anderson: 456, up 16 points. Highland: 455, unchanged. Indiana: 480, a 1-point decline. National: 493, a 1-point decline.

Each section of the test has a possible 800 points.

Indianapolis Magazine published an article on the Indianapolis area schools that might be found here.

Hague Convention in Ohio

I thought Ohio Family Law Blog's International Custody Cases In Federal Court Are Complex might be of some interest. This is certainly not our usual sort of family law case.

In an odd wrinkle, the marriage in Israel was a religious marriage that was not officially recognized here in the United States as a legal marriage, so the father filed for custody rights in Juvenile Court in Ohio. This was an ongoing battle until February, 2008, when the mother filed a Petition under the Hague Convention in the United States District Court for the Southern District of Ohio for the return of the child. Those of you who think that the federal judicial system moves slowly are normally correct; but in this case, because it was on an expedited docket, we conducted extensive discovery and pretrial proceedings in less than two months (including depositions in Ohio, Israel and Kosovo). Most of the depositions required us to find a translator who was fluent in Hebrew. Finally, we had to secure a number of documents from Israel.

A three-day trial was conducted in federal court in Dayton with the eventual decision filed on April 30, 2008.  Click here to read it.   The Court decided that there was a wrongful retention on the day that the mother left because it was the last date that the child was present in the United States with both parties’ permission. It next determined that the child’s habitual residence was the United States, and more specifically, here in Ohio.  The basis for that determination was that the six months he had been in the United States and the brief period he visited the year prior had been sufficient to acclimatize him to the United States.  From the child’s perspective, the United States was his home where he had a degree of settled purpose.  The trial court noted that the child was in school full-time in the United States and had been since his arrival.  His English skills had surpassed his Hebrew skills.  He had made numerous friends at school and the Synagogue, and he attended numerous parties and other activities with these friends.  He took numerous excursions, regularly going to the local Air Force Museum.  He had regular contact with his father and paternal grandmother, as well as friends and teachers.  Finally, all of his possessions were here in the United States.

***

The mother has requested the Court reconsider the decision.  The increasing globalization of society makes it more likely that there will be an increase in these Hague Convention cases.  If you are moving to a new country, it is important to know what steps should be taken to guarantee that you are not jeopardizing your rights of custody or access to your child.  To read the Hague Convention Treaty, click here.  If you find yourself likely to become involved in an international divorce or custody case, these cases are very fact-specific and extremely complicated.  No two are the same, and it is most often necessary for a party to secure legal representation in both countries.  For a list of the approximately 75 countries that are members of the Hague Convention, click here.  Also, merely because a country is a party to the Hague Convention does not mean that it will enforce its treaty obligations. For example, the U.S. State Department has asserted that even our neighbor Mexico is “non-compliant” with the terms of the Convention.  Don’t try to navigate these waters alone!

When Does Non-Custodial Parent's Action Justify Stopping Visitation?

In Indiana, we have two statutes on when visitation can be stopped. One applies to divorce case and the other to paternity cases. See my Paternity and modifying visitation - Part 2 on the laws.

What had not crossed my mind to write about was how to deal with the problem instead of publicizing the law. Dick Price of Divorce and Family Law in Tarrant County, Texas writes about how to deal with the problem in his What if the Other Parent is Irresponsible?

1. Discuss the situation with your ex. Don't overlook the obvious, direct solution. But, since you may not have any real leverage, you need to work on being diplomatic and conciliatory, no matter how hard that may be for you. It is certainly cheaper, faster and more effective if you can do something by agreement. There is also less chance of drawing the children into the middle of the dispute. Of course, you will probably be dealing with an emotional issue, so that will make it harder to be "nice". You can get some ideas from your attorney or a counselor to help you plan your approaches for the discussion.

2. Request that you and your ex meet with a counselor to discuss the issues. Hopefully, a few sessions will make it possible to come to an agreement in a safe atmosphere.

3. Here, in Tarrant County, Texas, you can contact Family Court Services at the courthouse and set up a meeting with an Access Facilitator. A Facilitator is a specially trained social worker who helps the parties meet and work out differences in how to raise children and share time with their children. Good News -- they are not only qualified, experienced social workers, but they are FREE!

4. Go to a mediator. This can be done with or without attorneys. You and your ex can split the mediator's fee. If one side uses an attorney, the other party should also bring an attorney to equalize the negotiations. Mediators have a very high success rate, so they are an excellent option.

5. Hire an attorney and go to court. This is the most expensive choice, but could be necessary if your ex is uncooperative.

6. Try using Collaborative Law. Both sides would have to agree to use the process, if it is to be used. Your ex might agree to it to keep the matter private, to get expert help or to be able to deal with the issue on his/her own schedule, instead of a court's schedule. The main point to keep in mind is that both parties would need to utilize attorneys trained in Collaborative Law, so you should ask about that when you are hiring an attorney. Using the process may minimize the damage to the relationships between the parties, which is important for the children.

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

Interstate Custody Issues

Interstate custody presents a complexity of law and issues that overlays the usual complexity of a custody case Rochester Family Lawyer's Custody, UCCEJA and Jurisdictional Issues does a remarkable job of condensing the law in one post.  The following applies as much to Indiana as to Indiana (one of the good things about uniform laws):

New York, as well as many other states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”). UCCEJA aims to discourage interstate child abductions and to prevent “forum shopping” by parents trying to strategically remove the child to a state to avoid another state’s jurisdiction. The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when there is a question which state has the right to exercise jurisdiction because one parent and/or the child no longer resides in New York. Although it is usually invoked in petitions seeking custody or visitation, or modification and/or enforcement of custody or visitation orders, it also applies to guardianship proceedings, divorce, paternity, child abuse or neglect, termination of parental rights, and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to resolve jurisdictional issues in other circumstances where the child has moved to another state or his or her physical presence in the state. These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent); or where the child is in New York and there are concerns of abuse and/or neglect. These are all scenarios that warrant the application of the UCCJEA.

The UCCJEA sets forth alternative rounds of asserting jurisdiction, which are: 1) where it is in the best interests of the child based on the “significant connections” to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction

For Indiana's version of this law, go here.  I have written about this topic in From another state?  Got a custody problem?.

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

Online Resource: WomensLaw.org

With a broader scope than this blog, WomensLaw.org does touch on some of the same issues I do.

They have pages on Knowing the Law which breaks down along the lines of state, federal, tribal and religious law.  I do not recall another general site that has links to religious law.  The following is from the sub-page on Indiana custody law:

General Information About Custody and Visitation in Indiana

• Child Custody Information from Indiana Legal Services
• Custody Q&A
• Frequently Asked Questions
• Who has custody of the child if there is no custody order?
• How can I change a custody order?

How will the judge make a decision about custody?

• Best Interest Factors

Definitions
Glossary of Family Law Terms

The following is the site's Preparing for Court page:

The information on these pages will assist you in preparing for Civil court, developing a strong case, and gathering evidence.

• Legal Definitions This page includes legal definitions that are not state-specific. Please note that the definitions of these terms may be different or more specific in your home state.

• Download Court Forms This page includes links to court forms for filing cases. Not all court forms are available online, but you may also find forms from the clerk of court at your local courthouse.

• Preparing Your Case This page provides tips for preparing your protection order case and getting ready for a hearing.

• Choosing and Working with a Lawyer This page provides interview questions and ideas for how to make the most of working with a lawyer.

• When the Legal System Fails You This page provides tips for when the legal system falis you

• Filing Appeals You may have a right to appeal a court order if the judge made an error of law.

Other pages that should have some interest are When the Legal System Fails You and Choosing and working with a lawyer.  Good information and advice appear on both pages.

And, men, I suggest that if any of these topics are of interest to you that you read them, too.

Indiana Child Custody Law: What Custody Does Not Include

Kudos to All Things Family Law for his Custody and Parenting Time and a different perspective on the term "custody":

In Indiana we have two components to custody: (1) legal custody and (2) physical custody. Legal custody refers to decision-making authority for decisions related to the child's medical care, educational placement and religious upbringing. If you and the other parent can communicate effectively on these topics you could share legal custody. What if you reach an impasse on an issue? That issue can be resolved with attorneys, a mediator or with the help of a parenting coordinator (see previous blog entry).

***

Finally, let's discuss what the title of 'custody' does not control. It does not give one parent the right to decide what activities the child is involved in, whether the child should be allowed to go see the new Harry Potter movie, or whether the child should be allowed to stay up past 11 p.m. This are decisions each parent gets to make during the their respective parenting time (however, the issue of activities needs to involve communication between the parents, especially where future scheduling is needed or there is a fee for the activity that is shared). Put another way, just because you have 'custody' you do not get to micromanage all of the child's concerns.

When considering how to settle the issue of custody, don't focus on the title of 'custody,' but how to frame your settlement agreement or court order to cause you to have input into the decisions you want to share and the time you wish to have.

All good points, phrased quite well. I think reading the articles here on parenting time (just click on the label below for "parenting time") will show where parenting time is much more than visitation.  Maybe if we get enough people reading all the Indiana family law blogs, we can get the public to understand this.

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

Third Party Custody or Visitation and Michael Jackson

This comes from Family Law Prof Blog's Family Law Prof on Custody of Michael Jackson's Children:

 University of Dayton Family Law Prof  Pamela Laufer-Ukeles contends the nanny of Michael Jackson's children ought to have a legal claim for visitation or custodial rights to the pop star's children, but Grace Rwaramba's status as a paid caregiver will likely squash any chance of that. Her article, "Money, Caregiving and Kinship: Should Paid Caretakers Be Allowed to Obtain De Facto Parental Status?" published in the spring edition of the Missouri Law Review and available at SSRN, explains that state laws and the American Law Institute principles almost always exclude caretakers who receive compensation — foster parents, paid childcare providers and surrogate mothers — from the categories of psychological parents or de facto parents to whom courts may grant such rights. Her article contends that paid childcare providers should not automatically be disqualified from obtaining custodial rights in certain cases.

Interesting concept for an article the interplay of money and care-giving.  Money or the lack thereof determines much of what we lawyers can do.  More specifically, the money that a client can put in a case determines what kind of case is presented to the court.  (For those who like their litigation-as-warfare metaphors and in light of the coming anniversary of September 1, 1939 compare what Poland's investment with Germany's investment in preparing for war.)

Indiana has recognized step-parent visitation but to have a nanny with the intensity of a relationship as a step-parent seems to me a rare case.  As for third party custody case, take a look at my archive on third party custody. 

I do want to commend the original article for reminding people that mother and father are not the only candidates for custodial parent.