Saturday, July 11, 2009

A Bill to Modify Indiana Adoption and Paternity Law

Many of you reading this are pro se, also known as self-represented, litigants in family law courts. In reality most divorce cases now involve at least one party being self-represented. Today I am addressing a specific circumstance in paternity cases. This specific circumstance applies to few of you but it is worth reading for all as it shows just how complicated the web of family law is and why you must fully research the laws.

The first thing to note is, that based upon the decision handed down by the Indiana Supreme Court on 26 June 2009, the trial judge and the Indiana Court of Appeals misinterpreted the law. The Chief Justice did not agree with the majority of the court either.

The case, captioned as In re Adoption of Unborn Child of B.W., involved a child born out-of-wedlock being placed for adoption over the objection of the putative father. It was heard by the Honorable Chris D. Monroe, Judge of the Bartholomew Superior Court.

The question presented was whether the appellant biological father's consent to the adoption of his child was irrevocably implied when he failed to file a motion to contest in the adoption court but did take concurrent steps to establish paternity and preserve and assert his parental rights in another court. The Superior Court Judge, Monroe, found that the father's consent was irrevocably given when he failed to file a motion to contest the adoption in the adoption court.

This week I analyzed the opinion of the Supreme Court and the relevant laws. I have written an amendment to the laws that directly pertain to this case and sent it personally to each of our Indiana legislators. The following text will explain the problem and what I see as a viable solution.

Justice Boehm in concurring with the majority stated, “I hope the General Assembly will consider requiring that a putative father wishing to contest an adoption or declare paternity must file in the court in which an adoption action is pending or otherwise assure consolidation of these two proceedings to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father.”

The adoption action was filed by the mother in the Superior Court. The father then filed a paternity action in the Circuit Court pursuant to the local rules. The father's position on appeal was that the form proscribed by Indiana Code § 31-19-4-5 states that the father's consent will be irrevocable implied if he fails to file a motion to contest the adoption; or a paternity action under IC 31-14 within 30 days of receiving the notice. It appears that the trial court found that in failing to file a “Motion to Contest” that he failed to do one of those two option and, thus, failed to properly contest the adoption. However, it appears that the Supreme Court saw “or” as making one of those two options a qualifier to contesting the adoption rather than a disqualifier. I also believe it was that same intent of the Legislature in 1997 when the statute was adopted that the father could file a petition for paternity in a Superior or Circuit Court or a motion in the court hearing the adoption petition since the word “and” requiring both actions was not used.

In this cause, brought before the Supreme Court, there seems to have been a failure in the mechanism to get these matters heard in the same court. As Justice Boehm wrote, he would like to see a mechanism in place to ensure that the cases are consolidated. I find two ways of doing this. One is to require that the Clerk of the Courts search for pending cases and notify the courts of concurrent cases and then the court hearing the adoption petition could consolidate sua sponte. The other could be to require that a paternity action be filed in the same court as a pending adoption proceeding. The second option seems to be the easiest as a putative father would already have notice of the court in which the adoption proceeding has been initiated.

The Superior Court entered an order finding that the father had failed to file in the Superior Court a timely motion to contest the adoption as required by Indiana Code § 31-19-10-1(b) and, based solely on this ground, it found the father's consent therefore irrevocably implied under Indiana Code § 31-19-9-12(1). Again, Indiana Code § 31-19-10-1(b) reads, “A person contesting an adoption must file a motion to contest the adoption with the court not later than thirty (30) days after service of notice of the pending adoption.”

It is understandable that a court reading only Indiana Code § 31-19-10-1 would assume consent to the adoption had been granted by the father not filing a motion in objection in that court. However, Indiana Code § 31-19-4-5 provides an alternative to objecting to the adoption, which is the filing of a paternity action.

A slight modification to Indiana Code § 31-19-10-1 would alert the court to the methods in which a father could preserve his rights under Indiana Code § 31-19-4-5. Indiana Code § 31-19-10-1(b) could then read, “A person contesting an adoption must file a motion to contest the adoption or file an action to establish paternity with the court hearing the adoption action not later than thirty (30) days after service of notice of the pending adoption as proscribed by Indiana Code § 31-19-4-5.

Indiana Code 31-14 et seq would need only slight modification to require the filing of a paternity action to be “filed with the same court in which an adoption proceeding is currently pending involving the same parents.” Considering the high probability of pro se litigants in this area it would be prudent that the court initiate the consolidation of the cases sua sponte.

A link to the proposed amendment is provided here. This bill would provide for uniform hearing of paternity proceedings involving the putative father following a petition for adoption filed by the mother. Additionally, it brings congruence to statutes involving adoption and paternity.

Please contact your local representative and ask that he or she support legislation to harmonize Indiana's paternity and adoption statutes based upon the case In re Adoption of Unborn Child of B.W.

Stuart Showalter, LLC

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