All Things Family Law - Indiana Divorce & Family Law Blog

Religion and Custody in Indiana

2010-03-05T06:57:00.000-08:00

Having been in a posting "rut" for about a month (however, I been active posting on the All Things Family Law Facebook Fan page), I thank Newsweek for the article "Whose God wins?" which gave me the inspiration for this posting.

In the Newsweek article the author describes a case where a divorced mother and father did not agree as to whether the father should be permitted to take his child, who was raised Jewish, to Catholic mass. The issue was whether a court order that allows one parent to determine a child's religion, or a court order that determines a child's religion, is an unconstitutional restriction of a parent's constitionally protected religious freedom. The author sums up how family courts and constitutional rights intersect as follows:

Family courts interfere with constitutional freedoms all the time. A family-court judge infringes on your right to free speech when he bars you from speaking ill of your ex-husband in front on the kids. She can prevent you from interstate travel if you seek to move your child away from your ex. The Bill of Rights isn't the last word in divorce proceedings, but when a court restrains fundamental constitutional freedoms, like speech, travel, or religion, it's usually for an important reason: the best interest of your child.

In Indiana, generally the custodial parent determines the child's upbringing, including the child's education, health care, and religious training. The custodial parent's right to choose the child's religious training is not disturbed so long as it does not unreasonably interfere with the other parent's visitation rights. However, the term "unreasonable" is very subjective. For example, in one case, a noncustodial parent was ordered to take a child to religious services during his parenting time. The noncustodial parent likely found that "unreasonable."

However, there are constitutional limits on what a court can order with regard to religion. In one Indiana case, the court ordered that parent's who were getting divorced, and were both practicing Wiccans, could not raise their children as Wiccans because the Wiccan religion was based in "non-mainstream religious beliefs and rituals". This ruling was overturned because the Indiana Court of Appeals held that the "trial court did not find that a limitation on Father's parental authority to determine the religious training of his child was necessary to prevent endangerment to the child's physical health or significant impairment of the child's emotional health, we hold that the trial court abused its discretion in ordering the parents to shelter the child from involvement in and observation of “these non-mainstream religious beliefs and rituals."

Indiana Child Support Guidelines - Tax Exemptions

2010-02-12T03:46:00.000-08:00

The Indiana Child Support Guidelines were amended on January 1, 2010. The new guidelines include the following language regarding the right to claim their child(ren) as dependents for tax purposes:

Tax Exemptions. Development of these Guidelines did not take into consideration the awarding of the income tax exemption. Instead, it is recommended that each case be reviewed on an individual basis and that a decision be made in the context of each case. Judges and practitioners should be aware that under current law the court cannot award an exemption to a parent, but the court may order a parent to release or sign over the exemption for one or more of the children to the other parent pursuant to Internal Revenue Code § 152(e). To effect this release, the parent releasing the exemption must sign and deliver to the other parent I.R.S. Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents. The parent claiming the exemption must then file this form with his or her tax return. The release may be made, pursuant to the Internal Revenue Code, annually, for a specified number of years or permanently. Judges may wish to consider ordering the release to be executed on an annual basis, contingent upon support being current at the end of the calendar year for which the exemption is ordered as an additional incentive to keep support payments current. It may also be helpful to specify a date by which the release is to be delivered to the other parent each year. Shifting the exemption for minor children does not alter the filing status of either parent.

The noncustodial parent must demonstrate the tax consequences to each parent as a result of releasing the exemption and how the release would benefit the child(ren). In determining when to order a release of exemptions, it is recommended that at minimum the following factors be considered:
(1) the value of the exemption at the marginal tax rate of each parent;
(2) the income of each parent;
(3) the age of the child(ren) and how long the exemption will be available;
(4) the percentage of the cost of supporting the child(ren) borne by each parent;
(5) the financial aid benefit for post-secondary education for the child(ren); and
(6) the financial burden assumed by each parent under the property settlement in the case.

These concepts previously existed in statutes and Indiana case law, but they were difficult to reconcile, thus, typically the custom was to have the parents alternate the right(s) to claim where there were a odd number of children, or split the right(s) where there were an even number. Now, the Guidelines suggest that judge should consider how shifting the right will make the most money available for the child(ren). Surely, there will be disputes regarding this. For example, at some income levels the value of the right to claim "phases-out" so the right to claim is not worth as much to that parent. Also, there are other tax deductions and/or credits that follow the the parent who has the right to claim. Consider having an accountant or other tax professional testify regarding the overall tax effect if the amounts are significant.

For more regarding child support see other posts here, or for more regarding children and taxes see IRS publication 501.

Facebook and Divorce - Status Update: I was sooooo drunk at the concert last night!

2010-02-01T06:06:00.000-08:00

The link to this post is to a Time magazine article that discusses facebook and divorce. Really a good article for anyone dealing with a divorce or attorneys that have a litigation practice.

Cyber-research (some call it cyber-stalking) is the new private investigator. Facebook posts will provide personal information ("I was sooooo drunk at the concert last night"), as well as time stamps and pictures. This information can be used as effective cross-examination or to leverage settlement of certain issues. Further, on the internet people spin themselves inaccurately. Some might call this lying. At a one day hearing where the judge will only know the parties for a few hours, but yet make decisions that carry long-lasting effects, the little white lies posted on the internet can do real damage to a witnesses credibility. If a judge thinks you are not credible, as they say - forgeta 'bout it.

It is not limited to Facebook. Information on 'dating-sites', MySpace or LinkedIn may include estimates of income, occupation details and, again, pictures. Do most people under or over report their income range on a dating site? Obviously over-report. This information can be helpful or damaging at a child support or attorney fee hearing.

Go check your internet profiles and think twice about updating your status with last nights exploits.

UPDATE - The IRS is using FB to track down debtors. Seems like our online lives are being scrutinized from all directions. See link to a WSJ article here

Real Estate Resources and Indiana Divorce - New Resources on Blog

2010-01-27T07:22:00.000-08:00

We have added some helpful real estate resources for individuals going through or contemplating divorce.

Want to know what your county assessor thinks your house is worth? Check out the links to Marion County and Hamilton County assessors search pages, see the Resources section on the left-hand side of the blog. This resource will also tell you whose name the title of the house is recorded under since ownership history is provided. I should say that a county assessor's estimate of value may or may not be similar to the true fair market value of your property.

Also, we added a search box for recent home sales information, as well as a link to the MIBOR site, the best place to start if you want to do an online search for a new home. Again, these are on the left-hand side of the blog.

Indiana Child Support Guidelines - High Earners Pay More, Low Earners Pay Less

2010-01-22T09:30:00.000-08:00

Under the amended Indiana Child Support Guidelines, effective January 1, 2010, high earners may pay more, and low earners may pay less.

High Earners: Those that earn over $4000 a week will be affected. Under the previous guidelines those earning $4000 did not have a scheduled guideline amount, but instead a formula was applied. Now where income is at $4000-$10,000 weekly there is a scheduled guideline payment. The initial commentary of the amended Guidelines states as follows:

[the scheduled payments] at high incomes leveled off the child support schedule for combined weekly adjusted incomes above $4,000. In 2009 this exception was removed. The increase is now incorporated into the schedule up to combined weekly adjusted incomes of $10,000 and a formula is provided for incomes above that amount. Previously, a formula was provided for combined weekly adjusted incomes above $4,000.

One aspect of the guidelines that did not change is the ability to tax adjust the support payment from the guideline assumed income tax rate of 21.88%. The guidelines state as follows:

In devising the Indiana Guidelines, an average tax factor of 21.88 percent was used to adjust the support column. Of course, taxes vary for different individuals. This is the case whether a gross or net income approach is used. Under the Indiana Guideline, where taxes vary significantly from the assumed rate of 21.88 percent, a trial court may choose to deviate from the guideline amount where the variance is substantiated by evidence at the support hearing.

For high earners a tax adjustment should still be considered.

Low Earners: The changes to the guidelines are helpful to low earners. Instead of having a minimum support amount of $25.00 per week the lowest amount is set at $12.00 per week. Also, the Supreme Court states that there are some situations where a $0.00 support order is appropriate. While this may seem unfair the Supreme Court found, based on research, that the accumulation of excessive arrearages was not in the best interest of the children involved. Also, where a parent is incarcerated and can't earn income, an adjustment to the support amount may be needed, see case here.

Additionally, considering that 'negative support orders' are now presumed to be appropriate, it is not much of a stretch to have a $0.00 support order.

For more information on child support and the new guidelines see previous blog entries on 'child support'.

Indiana Divorce & Online Divorce Forms : Limited Scope Representation

2010-01-22T07:38:00.000-08:00

More and more online do-it-yourself ("DIY") divorce resources are sprouting up everyday. Some of the popular and well-known companies are Legalzoom and Divorcewriter. Even our Indiana Supreme Court has published an online DIY form program (very user friendly) for people who, for economic or personal reasons, do not want to go the traditional route of hiring attorneys to handle their case.

Also, consider that online legal research resources are much improved and for many uses, free. See Google Scholar as an example.

With these online form services, and the availability of better online research resources, will need for a divorce attorney be obsolete? Not quite.

The online resources and DIY divorce kits are best suited for parties who have simple marital estates and agree on everything, but, even then while the forms can cause the marriage to be dissolved they cannot provide legal advice. The legal advice is crucial for most people. There are good reasons why attorneys say that a man who represents himself will have a fool for a client.

Example: About once a month our office gets a call from someone who "thinks there was a mistake" because his name (usually a he) was left on the mortgage when he "signed the quitclaim deed." There is a long pause after we explain that a quitclaim deed has nothing to do with the mortgage. There was no mistake. The form, which was coverted into a binding court order with the judge's signature, clearly left him obligated on the mortgage for an indefinite amount of time, while his ex-wife continues to live there. Oh yeah, and the real rub is that by giving her the quitclaim deed he gave her his half of the equity in home. A second long pause and, I suspect, nausea. The mistake was his - he thought the quitclaim deed relieved his obligation on the mortgage.

Any attorney would have been helpful in the above scenario, and an attorney's advice is still possible when using legal forms. In lawyer-speak we call this unbundling legal services, or limited-scope representation. All this really means is that an attorney can be hired to help with only part of the case, or, in this example, to review and provide feedback to the divorce settlement agreement.

If you or someone you know are considering using online forms, also consider getting an attorney to review the forms and provide feedback.

For more on unbundling legal services see Sam Hasler's blog posting, or a posting by the Indiana Law Blog regarding limited-scope representation.

New Child Support Guidelines - Controlled Expenses

2010-01-20T12:58:00.000-08:00

The Indiana Supreme Court has amended the Indiana Child Support Guidelines and ordered the changes effective January 1, 2010. The are many important changes. Too many for one blog posting.

One very positive change is that the guidelines are now clear as to who must pay for the 'controlled expenses' associated with raising a child, such as the winter coat and the basic school costs. Furthermore, the definition of 'controlled expenses' should help clear up disputes about who pays for school books and basic clothes. Parents will decide who pays for these costs by designating a 'primary physical custodian,' or if they share equal time with the child(ren), they will need to designate someone as the person who will pay the 'controlled expenses'.

The amended order defines 'controlled expenses' as follows:

Controlled Expenses. This type of expense for children is typically paid by the custodial parent and is not transferred or duplicated. Controlled expenses are items like clothing, education, school books and supplies, ordinary uninsured health care and personal care. For example, the custodial parent buys a winter coat for the child. The noncustodial parent will not buy another one. The custodial parent controls this type of expense. The controlled expenses account for 15% of the cost of raising the child. The parenting time credit is based on the more time the parents share, the more expenses are duplicated and transferred. The controlled expenses are not shared and remain with the parent that does not get the parenting time credit. Controlled expenses are generally not a consideration unless there is equal parenting time.

This definition was much needed. Undoubtedly there will still be disputes over the basic costs associated with raising the child(ren), but the Supreme Court helped the trial courts, attorneys and parents involved with this definition.

IMPORTANT NOTE: The new guidelines do not change the fact that the cost of having your attorney argue over who should pay for the winter coat, is likely more than the winter coat itself. Buy two.

Indiana Divorce Mediation - Divorce and Family Law Mediation Rules Change

2010-01-07T16:30:00.000-08:00

Beginning January 1, 2010, mediators can now be more helpful for parties and courts. Mediators can now assist the parties in drafting the settlement agreement, divorce decree and child support worksheets which need to be filed to make a divorce effective, or the settlement documents to resolve a paternity, custody or child support dispute. Prior the rule amendment, there was ethical 'grey area' regarding whether a mediator could draft the documents. Most mediators did not get involved in drafting the settlement documents that were to be filed with the court.

This rule change will also assist judges. With mediators creating and filing the documents, in theory, the documents will be in a format the judge will be able to review more efficiently. In cases with child-related issues there are often multiple documents that need to signed and filed. The mediators should be a better position than the parties to get the necessary documents filed.

The rule changes are available here. For a list of certified family law mediators go here.

In conjunction with the forms, child support calculator, and videos the Indiana Supreme Court has made available on its website, it is easier for unrepresented parties to resolve their disputes through mediation, rather than expensive litigation.

Indiana Child Support - New Child Support Calculator

2009-12-24T08:49:00.000-08:00

Previous postings (here, here, here and here) have detailed the amendments to the Indiana Child Support Guidelines, which will be effective January 1, 2010. On January 1, 2010 the Supreme Court of Indiana will update its online child support calculator to incorporate the amendments. The online calculator will be found here, and, as always, is free.

Holiday Parenting Time - What Time Does Christmas Eve Start?

2009-12-22T16:43:00.000-08:00

Believe it or not this is a real issue, especially this year. As detailed in a previous post, for 2009-2010 the Winter holidays are as follows:

If your child gets out of school on December 18th and goes back on January 4th, one interpretation of the Guidelines for the winter holidays in 2010 is as follows:
Thanksgiving Break - with custodial parent in 2009.
Winter School Break - with noncustodial parent from December 18th at 8 p.m. until December 24, then the custodial parent would have the child from December 24th until December 30th at 7 p.m., whereupon the noncustodial parent would have the child from December 30th at 7 p.m. through January 3rd at 7 p.m. However, the noncustodial parent would also have the child from noon until 9 p.m. on December 25th.

When this was first posted it seemed comprehensive enough. But since then, with a transfer date of December 24th, a popular question in my office has been - "when does christmas eve begin?" While there are many 'right' answers as to what time christmas eve begins...the real issue is what time the child must be transferred on December 24th. Of course the best way to handle this is to consider both parents schedules and preferences and come up with a reasonable time; however, in some cases having the parents jointly determine a reasonable time is like trying to nail jello to the wall. It is impossible.

Holiday parenting time disputes bring out the best or worst in parents, and if your divorce attorney is getting the call, it is likely the worst. So, if you do the math, by the hour the midpoint between December 18th at 8.pm. and December 30th at 7 p.m. is 7:30 p.m. on December 24th.

Joint Legal Custody - Religious Services and Parenting Time

2009-12-01T07:29:00.000-08:00

Where parents share legal custody they share the decision-making of all things related to the education and medical needs of a child, as well as the religious upbringing of the child. What encompasses "religious upbringing" is difficult to define. Even where parents are the same religion, what one parent considers a necessary religious practice, the other parent may not.

If parents who share legal custody agree on the religion of a child, does it follow that each parent must take the child to religious services during their respective parenting time? If not, can the parent that wants the child to attend services mandate that the other parent allow him/her to take the child to attend religious services during other parent's parenting time?

In a recent case the Indiana Court of Appeals stated that whether the child must attend services is the prerogative of the parent exercising parenting time. In other words, no, the parent is not required to take the child to services, or allow the other parent to interrupt his/her parenting time to take the child to services.

Indiana Parenting Time Guideline - Winter Holiday Parenting Time 2009 & 2010

2009-11-23T12:10:00.000-08:00

Holiday parenting time is often a source of confusion. The time a parent has the child alternates each year and is affected by when the school break starts and ends. This posting will provide the specific language of the Guidelines and also an interpretation of what the Guidelines provide this year if your child's winter break is from December 18th - January 4th.

Here is what the Indiana Parenting Time Guidelines say about the winter holidays:

HOLIDAY PARENTING TIME SCHEDULE
B. Christmas Vacation.
One-half of the period which will begin at 8:00 P.M. on the evening the child is released from school and continues to December 30 at 7:00 P.M. If the parents cannot agree on the division of this period, the custodial parent shall have the first half in even-numbered years. In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day. The winter vacation period shall apply to pre-school children and shall be determined by the vacation period of the public grade school in the custodial parent’s school district.
C. Holidays.
In years ending with an even number, the non-custodial parent shall exercise the following parenting time:
[1] New Year’s Eve and New Year’s Day. (The date of the new year will determine odd or even year). From December 30th at 7:00 P.M to 7:00 P.M. of the evening before school resumes.
[4] Thanksgiving. From 6:00 P.M. on Wednesday until 7:00 P.M. on Sunday.

After reviewing the Guidelines, if your child gets out of school on December 18th and goes back on January 4th, one interpretation of the Guidelines for the winter holidays in 2010 is as follows:
Thanksgiving Break - with custodial parent in 2009.
Winter School Break - with noncustodial parent from December 18th at 8 p.m. until December 24, then the custodial parent would have the child from December 24th until December 30th at 7 p.m., whereupon the noncustodial parent would have the child from December 30th at 7 p.m. through January 3rd at 7 p.m. However, the noncustodial parent would also have the child from noon until 9 p.m. on December 25th.

In sum, the custodial parent does not have the child as much over the winter break this year; however, the custodial parent gets the Thanksgiving break, Christmas eve as well as Christmas morning.

Retirement and Divorce - Are Paid Health Insurance Premiums An Asset?

2009-11-11T10:59:00.000-08:00

Retirement assets are often an issue in the property division aspect of a divorce case. For the purposes of divorce, Indiana defines “property” as:

[A]ll the assets of either party or both parties, including:
(1) a present right to withdraw pension or retirement benefits;
(2) the right to receive pension or retirement benefits that are not forfeited upon termination of employment or that are vested (as defined in Section 411 of the Internal Revenue Code) but that are payable after the dissolution of marriage; and
(3) the right to receive disposable retired or retainer pay (as defined in 10 U.S.C. 1408(a)) acquired during the marriage that is or may be payable after the dissolution of marriage.See Ind. Code § 31-9-2-98(b).

In a recent Court of Appeals case, the question was whether a benefit that caused Husband's post-retirement health insurance premiums to be paid is an asset of the marriage and subject to division by the court. The answer is, no, but the interesting part of the question is why the court found this way. It is important to know the benefit was paid directly to the insurance provider, not to the Husband. The COA explained that since the benefit was not payable to the Husband and as he could not elect to receive cash or some other benefit in lieu of the premium payments, the benefit was non-elective and not subject to division.

Had the Husband received the premium payment directly, as a payment for him to pay his health insurance premiums, then the court would likely have held otherwise.

However, a concurring opinion noted that the benefit could be properly considered as future income and be treated in same manner as evidence of future earning ability. In this regard, while the benefit could not be considered to be an asset of the marriage, it could be considered in the determination of how the assets should be split.

Boone County Court Cases Available Online

2009-11-06T13:05:00.000-08:00

Boone County Court case information is now available online. If you have a divorce, child support, custody or other case in Boone County you should be able to get information on the case here.

For DeKalb, Floyd, Hamilton, Monroe, Owen, Parke, Warren and Washington counties, as well as other small claims, township or infraction courts, go here.

The Supreme Court of Indiana maintains a blog with information regarding electronic court information here.

Indiana Relocation Law - Relocation Cases Trending Upward?

2009-10-30T07:30:00.000-07:00

We've seen an uptick in the amount inquiries related to the Indiana relocation laws. I think there are a couple reasons for this trend.

First, word is spreading that the Indiana relocation laws, amended about two (2) years ago, are very specific and onerous. While the amendment did not change that the Court ultimately is to consider the child's best interest, it did add some relocation specific factors for the judge to analyze.

Secondly, if the recession is over, maybe more jobs are becoming available. Often a job opportunity is the impetus for a relocation case. As unemployment declines, relocations should rise.

For the nuts and bolts regarding Indiana Relocation Law, including reference to some specific relocation cases, you can read my main relocation blog posting, or the Indiana relocation statutes.

Hamilton County Indiana Divorce Cases Online

2009-10-27T14:39:00.000-07:00

Important Hamilton County Court information is now available online. You can now follow your case relatively easily...all you need is the first and last name of a party, cause number of the case or the attorney name of one of the attorneys. Formerly this information was only available through a pay service.

This information is also available for Allen, DeKalb, Floyd, Monroe, Owen, Parke, Warren and Washington counties, as well as other small claims, township or infraction courts.

While I like this change, with this information so readily accessible I suspect we may see more litigants asking that their cases be confidential pursuant to Indiana Administrative Rule 9.

For more information regarding online access to Indiana Courts see this blog.

How To Enforce A Court Order - Contempt and Collections

2009-10-05T07:51:00.000-07:00

So you have the divorce or paternity decree. The other party won't perform as ordered. Maybe you are not receiving the child at the designated time, or you have not received the property to which you are entitled. Now what? How do you get the other party to perform?

The answer depends on what you are trying to enforce. We will discuss the three most common: custody orders, support orders, or property orders.

1. Custody Order. If the other party will not give you the child during your designated parenting time, he is violating the custody order. This can also be called violating the parenting time or visitation order. How you get this enforced? Practically, you need to take reasonable steps to encourage the other party to perform as required. Tell them they need to improve. Do it in writing. If they still will not perform, you may need to seek court intervention. You will need to file a motion for rule to show cause (a/k/a a contempt motion). Once filed the Court will set a hearing for the other party to show cause as to why he should not be held in contempt for not performing. The Court can use its coercive powers to cause the other party to comply, including ordering attorney fees paid, jail time, or some other specific act. The Court could also award you make-up time. Should you just call the police to have them enforce the order? I usually do not recommend this. Law enforcement will come out not to play judge or jury, but rather to diffuse the domestic disturbance. It is possible the police will help you get the other party to perform, but at what cost. Will the child get to watch you call the police on your ex?

2. Support Order. What if the other party will not pay you support on time? Again, you can file a motion for contempt. You can ask the court to apply its coercive powers. You can ask for interest. You can ask that the other parties income be garnished. To recover the amount they failed to pay you will need to ask for an arrearage order. Arrearages can be paid a little bit at a time or all at once. If they have a retirement account maybe you can use the assets they have to pay your support arrearage, see previous posting here.

UPDATE 10/7/09: New Indiana Supreme Court Case regarding enforcing a support order held that the trial court contempt order requiring the father to pay less than the full amount of the Florida support obligation to avoid incarceration did not impermissibly modify the foreign judgment. Also, it held that the Federal Consumer Credit Protection Act, which limits the amount of wages that may be subject to garnishment, does not restrict the amount of support that may be awarded.

3. Property Order. If the other party is not giving you property you were granted in the divorce decree how do you get it? One option is to call law enforcement, but, as stated above I do not recommend this. It is generally a poor use of law enforcement resources and can unnecessarily escalate disputes. Two wrongs do not make a right. You can move the court to hold him in contempt, and ask for coercive remedies. The more difficult issue is generally where the other party is ordered to pay a (nonsupport) debt and they fail to do it, or maybe they are supposed to pay you a lump-sum property buyout and fail. How do you collect your money? You will need to file a motion for proceedings supplemental. This will put the collection of the judgment squarely before the court and allow you to get information about income and assets from the other party. At hearing, you can ask for property or income to be seized.

For all of the above actions you will likely need a private attorney. The enforcement of orders is an unintuitive process and can be frustrating.

Another option for collection of child support is to use the 4-D Court prosecutors in your county. They may be able to help you collect your child support. Hamilton County child support collection questions go here, and Marion County child support collection questions go here.

Supervised and Restricted Parenting Time

2009-10-02T06:36:00.000-07:00

We get a lot of questions about restricting parenting time, or having parenting time supervised. Supervised parenting time cases are very difficult on the parties, professionals, judges and, most importantly, the children involved. Most of the time it is not appropriate to have parenting time supervised; however, in some circumstances it is necessary.

Restriction or denial of parenting time is governed by Indiana Code Section 31-17-4-2, which provides as follows:

The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.

In a case published today the Court of Appeals explains how this standard is applied:

Although a court may modify a parenting time order when the modification would serve the best interests of the child or children, a parent’s visitation rights shall not be restricted unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development. Even though the statute uses the word “might,” this Court has previously interpreted the language to mean that a court may not restrict parenting time unless that parenting time “would” endanger the child’s physical health or emotional development. A party who seeks to restrict a parent’s visitation rights bears the burden of presenting evidence justifying such a restriction.

In most cases, barring emergency, eliminating or restricting parenting time on a continuing basis is a last resort. Typically, these cases are going be the ones where mental health evaluators, parenting coordinators and guardian ad litems have been employed, and counseling has been implemented.

Change of Judge in a Divorce or Paternity Case

2009-10-01T09:30:00.000-07:00

It is my opinion that Indiana has some great judges, magistrates and commissioners. Really. However, in family law cases sometimes litigants desire a change of judge. Typically this happens where one judge presides over the divorce trial and issues a ruling, and then later child support or custody needs to be modified.

Trial Rule 76, which controls motions for change of judge and venue, states:

After a final decree is entered in a dissolution of marriage case or paternity case, a party may take only one change of judge in connection with petitions to modify that decree, regardless of the number of times new petitions are filed.

The important distinction here is that typically you get only one change of judge for motions to modify. There are other ways to move for a change of judge due to cause, such as conflict or bias, but those circumstances are rare.

Indiana Relocation Law

2009-09-29T06:40:00.000-07:00

A couple years ago the laws regarding relocation changed drastically. Formerly, there was a only a duty to file a notice of relocation if you were moving 100 miles away, and only the custodial parent had that obligation. However, now anyone who has a parenting time or visitation order (including individuals who may have grandparent or third-party visitation rights) must file and serve upon the other party a notice of intent to relocate and they must do so when ever they relocate. There is no distance restriction for this. For example, if they move to the apartment across the street they must file and serve upon the other party a notice of intent to relocate.

The notice must be filed and served 90 days before the parent intends to relocate the children, and must contain the following information: the intended address of the new residence; the home telephone number of the new residence; any other applicable telephone number for the relocating individual; the date that the relocating individual intends to move; a brief statement of the specific reasons for the proposed relocation of the child; a proposal for a revised schedule of parenting time with the child; a statement that a parent must file an objection to the relocation of the child with the court not later than sixty (60) days after receipt of the notice; statement that a nonrelocating individual may file a petition to modify a custody order, parenting time order, grandparent visitation order, or child support order.

After filing and serving this notice the nonrelocating parent can file a motion objecting to the relocation of the children. Then, the relocation is contested and must be set for hearing.

Over the past two years the Court of Appeals has issued opinions illustrating how the relocation laws should work when applied. The most recent case is here. The Court of Appeals described the burden in a relocation case:
If the non-relocating parent files a motion to prevent relocation, the relocating parent must first prove that the proposed relocation is made in good faith and for a legitimate reason. If this burden is met, the non-relocating parent must then prove that the proposed relocation is not in the best interest of the child.

When considering whether the relocation is in the best interest of the child the court will consider the following factors:

(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating individual to
exercise parenting time or grandparent visitation.
(3) The feasibility of preserving the relationship between the nonrelocating
individual and the child through suitable parenting time and grandparent
visitation arrangements, including consideration of the financial circumstances
of the parties.
(4) Whether there is an established pattern of conduct by the relocating
individual, including actions by the relocating individual to either promote or
thwart a nonrelocating individual‘s contact with the child.
(5) The reasons provided by the:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the child.

While the new relocation laws are complex and onerous, the effect of the law has been positive in that relocations must now be litigated before they occur. Furthermore, the procedure involved is now well-defined.

If you are going to be involved in a relocation or custody dispute you need an attorney. In this case the Court of Appeals stated:

We encourage parties facing issues involving the custody of children to obtain counsel to aid in the litigation of custody disputes. Because the court's order has such a profound effect on the lives of the parties and their children, we cannot emphasize enough the importance of presenting sufficient evidence and developing an adequate record.

For more on information on custody or relocation disputes, see all custody blog entries here.

Collect Child Support, Maintenance, or Alimony with a QDRO

2009-09-23T06:46:00.000-07:00

The collection of child support arrearages, as well as spousal alimony or maintenance arrearages, can occur by seizing and partitioning the paying party's retirement account. A Qualified Domestic Relations Order (QDRO) is a court order which has been filed with the court and determined by the Retirement Plan Administrator to be acceptable or “qualified” under certain federal ERISA rules. A QDRO recognizes the existence of an alternate payee (i.e., legally separated spouse, former spouse, domestic partner, child and/or other dependent) who has the right to receive benefits that are or will be payable to a member.

QDRO's are most commonly used in divorces to divide retirement assets. Essentially, the retirement account of one party is partitioned and a certain amount, or right to receive future payments, is set-off to the other party.

The use of QDRO's to collect other domestic relations judgments is often overlooked. Pursuant to federal law a retirement plan can be used to provide child support and alimony payments through the use of a QDRO.

In today's economy the use of QDRO's to collect child support or spousal maintenance/alimony payments is important. People are being laid off everyday and unemployment is high; however, individuals still may have some retirement assets or benefits from their former job. The retirement assets or benefits could be used to pay the debt owed.

Care must be used when using a QDRO because of the tax issues involved. The person receiving the assets via QDRO may have a taxable event when they liquidate the assets they receive. Imagine you receive retirement assets of $10,000 to satisfy a $10,000 child support debt, but after tax you only realize $7,000. There are ways to deal with this issue, including having the amount you receive 'grossed-up' to account for tax you have to pay, or have the child named as the alternate payee.

For more information regarding QDRO's see the Department of Labor FAQ's.

New Child Support Guidelines - Excessive Arrearages Are Not in Child's Best Interest

2009-09-22T06:22:00.000-07:00

One of the more interesting additions to the child support guidelines, effective January 1, 2010, is the inclusion of language cautioning that high child support arrearages have the effect of 'chasing away' noncustodial parents from their children. Here is the language:

Attributing potential income that results in an unrealistic child support obligation may cause the accumulation of an excessive arrearage, and be contrary to the best interests of the child(ren). Research shows that on average more noncustodial parental involvement is associated with greater child educational attainment and lower juvenile delinquency. Ordering support for low-income parents at levels they can reasonably pay may improve noncustodial parent-child contact; and in turn, the outcomes for their children.

In other words, a noncustodial parent may be less likely to have contact with the child if he/she is harassed to pay back a large child support arrearage. The counter-argument is that the noncustodial parent made his/her own bed when he/she failed to pay support and now they must lie in it. By including this language the Supreme Court is not favoring custodial or noncustodial parents, but rather the children involved.

There remains plenty of opportunity for either a custodial or noncustodial parent to argue their own position with support from the guidelines and other applicable law; however, it is clear that the Supreme Court wants attorneys, judges and parents to be cognizant of the concern that high arrearages may, for whatever reason, have the effect of chilling the parent-child relationship, and this is not in the child's best interest.

For more on the policy concerns behind excessive child support arrearages click here.

"All Things Family Law" featured in the Fort Wayne Gazette

2009-09-21T05:56:00.001-07:00

Click here for article.

New Child Support Guidelines - "Negative Support Orders"

2009-09-21T05:53:00.000-07:00

While the amended child support guidelines are not effective until January 1, 2010, expect "negative support orders", where the custodial parent pays the noncustodial parent, to be more common immediately. Why? Because now that we know what the guidelines will presume in a few months it makes sense to apply the concepts now.

Negative support orders are appropriate under the current guidelines. There were a series of appeal cases under the title Grant v. Hager (first Court of Appeals opinion here, Supreme Court opinion here, and second Court of Appeals opinion here) that addressed whether such an order is allowable. After going back and forth it was decided that courts should be allowed to order the custodial parent to pay the noncustodial parent support if the economics and parenting time suggest that such a payment is equitable. However, such orders were not presumed, but rather, were allowable. In legal matters, this is an important distinction as having a presumption gives a movant big advantage. Now, negative support orders will be presumed to be the proper amount of support.

The Court of Appeals discussed the policy concerns involved:

There are advantages and disadvantages to allowing child support pay-ments to run from a custodial to a noncustodial parent. On the one hand, to do so encourages a noncustodial parent to participate more in his or her children’s lives following divorce, and it results in more similar living environments for children when they go from one parent’s home to the other’s. On the other hand, it also has the potential to increase custody disputes by providing an incentive for a cus-todial parent to fight shared parenting time, and it takes money from the custodial parent, thereby reducing the likelihood that he or she will be able to provide a home more similar to that which the children would have enjoyed had the marriage remained intact.

With the new amendments the former policy interest won out, as the Supreme Court amended the guidelines with the following langugage - The calculated amount establishes the level of child support for both the custodial and non-custodial parent. Absent grounds for a deviation, the custodial parent should be required to make monetary payments of child support, if application of the parenting time credit would so require. For example, if the custodial parent makes $100,000 annually, and the noncustodial parent makes $20,000 annually, and the noncustodial parent exercises enough parenting time with the child, there will be a negative support order. To figure out if this change might effect you, contact an attorney.

Since negative support orders are allowable under the current guidelines, and we know they will mandated under the guidelines on January 1, 2010, expect attorneys and courts to start applying this change now.

For more on the new guidelines, see the September 16, 2009 blog posting.

Mediation Rules Amended - Clarifies Mediator's Role and Duties

2009-09-17T06:43:00.000-07:00

Today the Supreme Court published orders amending a variety of rules. Notably, the mediation rules for family law mediators were amended, effective January 1, 2010.

The Rule amendment squarely deals with a mediator's role in the preparation and review of documents:

(F) Mediator’s Preparation and Filing of Documents in Domestic Relations Cases
At the request and with the permission of all parties in a domestic relations case, an
attorney registered under ADR Rule 2.5(B) (Attorney Mediator) or a non-attorney registered
under ADR Rule 2.5(B)(2)(b) (Non-Attorney Mediator) working under the supervision of an
Attorney Mediator, may prepare or assist in the preparation of documents as set forth in this
paragraph (F).
The Mediator shall inform an unrepresented party that he or she may have an attorney of
his or her choosing (1) be present at the mediation and/or (2) review any documents prepared
during the mediation. The Mediator shall also review each document drafted during mediation
with any unrepresented parties. During the review the Mediator shall explain to unrepresented
parties that they should not view or rely on language in documents prepared by the Mediator as
legal advice. When the document(s) are finalized to the parties’ and any counsel’s satisfaction,
and at the request and with the permission of all parties and any counsel, the Mediator may also
tender to the court the documents listed below when the mediator’s report is filed.

Additionally, the mediator may prepare or assist in the preparation of only the following documents:

(1) A written mediated agreement reflecting the parties’ actual agreement,
with or without the caption in the case and “so ordered” language for the judge presiding
over the parties’ case;
(2) An order approving a mediated agreement, with the caption in the case, so
long as the order is in the form of a document that has been adopted or accepted by the
court in which the document is to be filed;
(3) A summary decree of dissolution, with the caption in the case, so long as
the decree is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed and the summary decree reflects the terms of the
mediated agreement;
(4) A verified waiver of final hearing, with the caption in the case, so long as
the waiver is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed;
(5) A child support calculation, including a child support worksheet and any
other required worksheets pursuant to the Indiana Child Support Guidelines or Parenting
Time Guidelines, so long as the parties are in agreement on all the entries included in the
calculations;
(6) An income withholding order, with the caption in the case, so long as the
order is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed and the order reflects the terms of the mediated
agreement.

The Supreme Court also amended the appellate rules to encourge more appellate mediation. Appellate mediation has not been frequently used in family law matters. This may change.