Saturday, October 31, 2009

Indiana Legislative Advisory Committee recommends joint legal child custody

The final meeting of 2009 for the Indiana Child Custody and Support Advisory Committee of the Indiana General Assembly got underway shortly after 10:00am and last until about 12:30. Previous meetings were held on 25 September, 02 October and 16 October. By statute the Committee is limited to meeting four times during the session.

The Committee passed two preliminary drafts after amending one. One involves great-grandparent visitation and the other seeks to modify Indiana's Paternity Affidavit. The Committee also recommended adding stronger language to the statute limiting noncustodial parents parenting time.

The Committee passed two preliminary drafts after amending one. One involves great-grandparent visitation and the other seeks to modify Indiana's Paternity Affidavit. The Committee also recommended adding stronger language to the statute limiting noncustodial parents parenting time.

The meeting opened with testimony by Cynthia Longest, Deputy Director Department of Child Services, Child Support Bureau, who provided a child support legislative gap analysis detailing the level of compliance with federal mandates. Among some of the findings are that Indiana rates 41st in the establishment and collections of child support payments, has incoming withholding orders in about 60% of cases compared to 70% nationally and that Indiana lacks some necessary definitions in regards to medical support. Ms Longest will be providing a copy of her analysis to me once it is completed. I will report on it fully then.

PD3213 - Grandparent and great grandparent visitation
This proposed legislation would grant to great-grandparents the same standing to seek visitation rights as currently stands for grandparents. However, the proposal also expands the cause of action to allow suit to be filed against intact families. The Committee approved the proposal with Judge Vorhees and Robert Bishop, Title IV-D representative, voting against the proposal as written.

Judge Vorhees felt that the proposal would potentially invite a flood of litigation from any grandparents or great-grandparents who simply has a disagreement with the parents of the children they are seeking to have visitation time with. Robert Bishop felt that an attorney fee provision should be added since most older people have greater financial resources than the parents of the child whom a visitation order is being sought against.

IC 31-17-4-2 - Modification or denial; restriction of parenting time rights
Attorney Michael Red who does not practice family law but has not seen his children in a year testified about I.C. 31-17-4 -2.
"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."

Red stated that the use of the word "might" allows a custodial parent, such as his ex-wife who has engaged in a thirteen year campaign of parental alienation, to pursue litigation to deny his access to his children without any finding that he has done anything wrong.

The Committee had discussion about this and during that discussion the issue raised by Red about attorney fees was discussed. With the use of the word "might" a noncustodial parent could be required to regularly defend against malicious attacks by the custodial parent without financial consequences for bringing a frivolous action because the standard of might allows for any allegation to be adjudicated without being determined as malicious or frivolous since nearly any act "might" endanger a child.

The committee unanimously endorses adding "clear and convincing" language to statute in place of might. Since there was no specific legislation before the Committee this is only a recommendation. We will be seeking to get a sponsor for a bill to amend I.C. 31-17-4 -2.

PD3275 - Paternity affidavit modification

The meat of the meeting focused on the Indiana Paternity Affidavit and is considered to be a substantial step in the direction of making Indiana a more child-friendly state.

Robert Monday has been pushing for changes in the paternity affidavit for years. Currently the affidavit provides that when a man claims paternity of child the woman has all legal decision making authority and full physical custody.

Attorney Chris Worten provided significant testimony about the paternity affidavit during the 16 October meeting. Don Chavis of Indiana Custodial Rights Advocates provided testimony about paternity along with Robert Monday and others.

In my written materials that I provided to the Committee prior to this meeting I included the following about paternity:

The paternity affidavit should establish that both parents have joint legal custody of a newborn child the same as if they were married. There should be a presumption of physical custody at the Guideline minimums even though it would not be appropriate in some cases.

Currently there are safeguards in place that protect children from abusive parents. Under Indiana law any person is required to report suspected abuse or neglect of a child. Hospital staff are the first line of defense for a newborn child. There is a long history of involvement by Child Protective Services when a child is born to a mother who is currently abusing drugs or otherwise endangering the child. Equally there is involvement when a father is shown to be abusive to the mother or child.

I feel that it is important that all children have declared parents whether they are biological to the child. The State of Indiana should require that a mother name a father of the child when one has not come forth to voluntarily sign a paternity affidavit. This should be done with the objective in mind of involving the father in the child's life not just for the purpose of obtaining financial support and policies should reflect that.

Robert Monday asked the Committee members that if they say they support having gender neutral laws then why would they oppose mandating that both parents named on the paternity affidavit have joint legal custody. Senator Brent Waltz explained that he considers the current provision providing legal and physical custody to be an extension of the status that the mother maintained during gestation. I respectfully disagree with Senator Waltz assessment of parental responsibility though. Among married parents both have joint legal and physical custody at birth. Either parent may make medical decisions.

Representative Vanessa Summers was surprised to learn from some of us in the audience and attorney legislators that a father named on a paternity affidavit cannot take his child for medical services and make those decisions without a court order. The committee had further discussion about application of the affidavit and who would be affected.

Gregory A. DeVries, the Custodial Parent representative, mentioned that the paternity affidavit is an agreement between the parents and suggested the issue that parenting time for the father be established at the Indiana parenting Time Guidelines minimum. After additional discussion which included Judge Vorhees saying that both parents should share parenting a vote was taken.

The Committee unanimously approved the paternity affidavit proposal with an amendment that established that both parents would have joint legal custody and that fathers would have parenting time at the guideline minimums.

Now that we have the recommendations and approval of two proposals we need to start working on getting sponsors for specific legislation. I believe we have a Committee that is dedicated to making Indiana a more child-friendly state. The decision to make joint legal custody the default status for parents signing a paternity affidavit and changing the standard to restricting parenting time to be by clear and convincing evidence is substantial.

It is the eventual goal of the Indiana Custodial Rights Advocates that joint legal and physical custody be the default arrangement in all parenting actions. We would also like to see that findings and conclusions be a part of all custody orders and that the clear and convincing standard be expanded to all custody actions.

While momentum is in our favour we need let every legislator know the recommendations of the Committee and that they should support specific legislation that will be introduced in the upcoming session.

I will be meeting with legislators regularly for the remainder of the year so we have bills ready to introduce in January. If you call, send an e-mail or post a letter to your State Senator and Representative asking for support of our bills please contact me.


Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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