Friday, April 3, 2009

Public hearing on possible Trial Rules change affecting child custody

The Indiana Supreme Court Committee on Rules of Practice and Procedure has posted a request for public comment on a proposal to abolish the right to an automatic change of judge in divorce and paternity cases. Indiana Trial Rule 76 currently allows for any party to seek a change of judge in any hearing to modify a final decree in a divorce and paternity case. This change of judge is allowed one time and is a right. The Committee is seeking to change the rule to disallow this right.

The Committee has posted information about providing public input on this proposal.

I first want to encourage any litigant who has taken a change of judge or been through a drawn out proceeding and then sought a modification to write to the Committee and express his or her feelings.

Here is why I feel this is an important rule and should be preserved.

In most civil proceedings a change of judge can only be had for cause.  That is a litigant requesting the change must show a reason why the judge is biased or has a conflict that would prevent that judge from fairly hearing the matter.  Trial Rule 76 provides that at any time after a final decree is issued in a divorce or paternity action that a litigant is entitled to one change of judge.

Considering that in child custody proceedings that the best interest of the child is to be maintained then I believe this rule is a procedural safeguard to preserving that interest.  There are many reasons why a change of judge should be granted but few are addressed by rule or statute.

In Indiana a the judges of the Superior and Circuit Courts are elected.  State law requires that the judge have previously been admitted to the practice of law but considering what we have seen some attorneys admitted to the practice of law in Indiana do are we safe to assume this qualifies one to be judge?  Contentious child custody proceedings may be trying for a judge with little experience.  There is something to be said for wisdom that simply cannot be attained from reading books.  Through no fault of his own an inexperienced judge may not possess the skill or experience to interpret the nuances that permeate child custody proceedings and can affect the children's best interest.

You may select a checkout line at the grocery store, a bank teller or any one of numerous people performing the same tasks based upon your preference for that person.  As people we develop a comfort zone with people that we are familiar with.  As I roam the halls of the Statehouse I naturally gravitate to the legislators whom I share a common interest and have had past experiences with.  We expect that to be different with judges, but should we?  In the fine nuances of child custody decisions a casual familiarity with counsel may be to the disadvantage of the opposing counsel who visits the courtroom for the first time and ultimately to the child, whose best interest is to be protected.

It is for these reasons that this rule should be maintained as written.

Thank you to the Indiana Law Blog and Sam Hassler for their previous postings on this issue.

No comments: