Thursday, April 2, 2009

My amendment to HB1511 may get added on the floor

House Bill 1511 came on for hearing April 1, 2009 before the Senate Judiciary Committee chaired by Senator Bray.  HB1511 would create a statutory set of factors to be considered by judges in deciding legal custody in paternity actions.  Currently only mothers have legal custody of children born out of wedlock.

This bill, which was sponsored by Shared Parenting advocate Matt Bell [R-Ft Wayne], seeks to adapt Indiana custody laws to the realities of the demographics of our society. Many couples now choose to live together and plan a family but not marry.  Additionally, there is the large number of out-of-wedlock births that are a result of unplanned pregnancies.

Senator Steele [R-District 44] expressed concern that bringing out-of-wedlock births into parity with those from couples who have solemnized a commitment through marriage would be a disincentive to marry.  I do agree with Senator Steele that marriage should be valued and encouraged but the proper way to do that is not to deprive the children of access to a parent.  Instead, Indiana should show that it respects the institution of marriage by repealing our no-fault divorce statute which encourages couples to live in an antagonistic state rather than cooperative.

The factors in this bill to be considered by a judge when making a legal custody determination in a paternity action would mirror those of the dissolution statute at 31-17-2-15.  My concern is with factor number four which states that "whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody".  During my testimony I provided an anecdotal reason why this provision should be stricken.  It concerns a father in Lebanon, Indiana who is the de facto primary legal custodian of his son although he actually shares custody.

This man did not learn that he had a son until he was contacted by the sister of the mother and told he should check into it.  A paternity test was performed and he established paternity.  As he says it his son was conceived as a result of the proverbial one-night-stand.  He has no interest in the mother but was very excited to learn he had a young son.  Although he had missed the first three years he was eager to actively participate in his child's life.

Indiana relies on an ad-hoc compilation of statutes to determine custody in paternity actions.  Had HB1511 been in place at the time this man sought custody factor four would have required a judge to consider that he had no involvement in his child's life for nearly three years.  I believe this is a disincentive to fathers to seek to establish paternity.  I have already heard from some who say this bill will do no good because all they will get us a support order and told they can't share in the legal decisions regarding their child because they did not know of their child's existence.

Factor four also makes no consideration to who caused the child to not develop a relationship with both parents.  Senator Taylor [D- Indianapolis] told about a case he was personally involved with where this would apply.  The mother of his brother's child moved three times in an effort to keep the court and the father from knowing the whereabouts of the child.  By the time the paternity issue was settled the mother had kept the child from seeing his father for four years.  Logic would tell us that a judge would admonish the mother for her evasive and alienating actions.

Senator Taylor was instead told by the judge that he shall consider those factors including number four.  Shall is a requirement under Indiana law.  The judge continued that in considering that the father had no relationship with the child for four years that the father had failed to demonstrate that he should have joint legal custody.  This is the crux of the problem.  A parent who has possession of the child can manipulate the factors to be used against the challenging parent without any repercussions.  Senator Taylor was passionate about the need to balance the factors equally among both parents.

My testimony brought about a lively and meaningful discussion that lasted about 15-20 minutes before a vote was taken.  The bill passed out of committee with a vote of 9-1.  Senator Taylor was the one vote in opposition to the bill as introduced.  The bill will now head to the full Senate for a vote.

I had not drafted an amendment prior to the hearing because of time considerations and other obligations I had.  However, in my discussions with the legislators following the hearing I was told that I may get my amendment proposed on the floor when it comes time for the Senate to vote on the bill.

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