Wednesday, November 18, 2009

Indiana General Assembly Organization Day - Six child friendly bills

It what seems to almost be a secretive event because of lack of web presence about it members of the Indiana General Assembly gathered at the Indiana State House Tuesday for Organization Day.

This day is mostly ceremonial with members meeting in caucus then their respective chambers. Larger groups of students pour through the halls and various other ceremonial events take place.

House Minority Leader Brian Bosma of Indianapolis says House Republicans' first priority is taking another step toward amending property taxes to a 1% cap for home owners into the state constitution by passing a resolution. If lawmakers pass a resolution this year, voters will decide in November 2010 elections whether a property tax limit will be added to the constitution.

2010 will be a short session of the General Assembly starting on 05 January and ending no later than 14 March. Legislators meet in short session in years in which a budget is not being considered.

This year House members will be able to introduce 5 bills while Senators may introduce 10. This will be an especially tough time to get child-friendly legislation introduced while so many economic issues are still considered more important by most people.

I arrived at the State House shortly after 9:00am and started submitting requests to meet with legislators. Roaming the halls over the next fours hours was the easiest way to get these short meets with them. I was joined by some of our other advocates who each made a greeting with at least one of their local legislators.

Our agenda this year includes significant paternity related legislation. It is a reality that out-of-wedlock births are becoming increasingly common in Indiana and the statutes covering this area of law are out-of-date. This is going to be our greatest focus this upcoming session.

Paternity Affidavit

The most important is amending Indiana's Paternity Affidavit. The Indiana Child Custody and Support Advisory Committee [ICCSAC] earlier unanimously approved a paternity affidavit proposal that established that both parents would have joint legal custody and that fathers would have parenting time at the guideline minimums until a court hearing.

The Indiana Paternity Affidavit is a form, in addition to a birth certificate, that mothers and fathers voluntarily sign. Our proposal seeks to establish legal custody for both parents who sign the affidavit allowing each to make important medical decisions and other considerations. It would also establish minimum parenting time for fathers so that the can immediately start providing the child with the necessary involvement of both parents.

We have solid support for this proposal and have a few legislators who have expressed interest in being a sponsor.

Joint Legal Custody in Paternity actions

Last year the Assembly easily approved adding IC 31-14-13-2.3 (As added by P.L.95-2009, SEC.2.) which established the factors considered in making award joint legal custody. This language simply parroted what was in the dissolution of marriage section.

One section raised some concern for us. This was part four which reads, "whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody" Unlike in marriages children born out-of-wedlock may have been prevented from seeing their father and the father has no legal recourse available to him at that moment. For this reason we seek to amend section 2.3 with this language;

(4) whether the child has established:
(A) had the opportunity to establish;
(B) has established;
(C) the parents wish to establish; and
(D) whether either parent tried to thwart attempts by the other to establish,

a close and beneficial relationship with both of the persons awarded joint legal custody;

This will give courts the opportunity to examine the parties as to the reason a father has not had contact or developed a meaningful relationship with the child. The courts are currently prohibited from doing that by statute. We do not believe it is in the child's best interest to make a determination of custody without being allowed to know the reason a child has been prevented from having contact with a parent.

We have mixed support for this proposal and have a legislator who has committed to being a sponsor.

Adoption and Paternity

In July I wrote about a complicated legal opinion by the Indiana Supreme Court involving the adoption of the child of a man who filed a paternity action to contest the adoption.

In short, because of lack of congruence in the adoption and paternity statutes, the court ruled that the man had implicitly given his consent to the adoption by filing a paternity action in a court other than the adoption court. Current law provides that a man can contest an adoption by either filing a motion to the adoption court within 30 days or by filing a paternity action within 30 days.

Our proposal would add a new section to the paternity statutes which would require the paternity action to be filed in the same court as the adoption proceeding. The adoption statute would be amended to establish an alternative to objecting to the adoption by filing a paternity action in the same court. This would bring uniformity to both sections of the law.

We have solid support for this proposal and have a legislator who has expressed interest in being a sponsor.

Restricting Parenting Time

Attorney Michael Red has raised the standard of proof issue in I.C. 31-17-4 -2 which reads;

"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."

ICCSAC earlier recommended that the standard be raised to "clear and convincing" rather than might. When it comes to keeping a child from having access to the support and care of a parent there should be a more stringent requirement than the person might endanger the child. Judges in Child Protective Service cases are required to use the "clear and convincing" standard before limiting a child's access to his or her parents.

Getting in a car and driving across town might endanger you because of the possibility of a collision with another vehicle. The ultra low standard of might also places no burden upon the moving party to only bring legitimate concerns to the attention of the court.

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.

We have strong support for this proposal and are looking for a legislator interested in being a sponsor.

Shared Parenting

We are also going to seek to have the Shared Parenting bills that have been previously introduced by Senator Kruse [SB560] which establishes a presumption for joint physical custody and Representative Pond which establishes a presumption for joint legal custody. Both bills require that judges presume that both parents are equally entitled to custody of their children. The court would then be required to issue findings as to why it deviated from that presumption.

The Rule 52 requirement that the court issue findings should reduce the amount of subsequent litigation, especially appeals, and also be beneficial to the children as clear reasons are given for custody orders.

A parent who is simply told you don't get more than the minimum time but feels he or she should have more may seek to change that. However, understanding that because of a work schedule, emotional conditions, staying out late drinking or other prior acts clearly demonstrate the need for a particular custody schedule will give parents the knowledge to make changes for the benefit of the child.

Support for this has been mixed. Those who seek to promote continuing litigation, psychological problems in children and industries that thrive on crime have been strongly opposed.


Those are the six pieces of legislation that we would like to have introduced and passed in this session. If you would like to help with any of this please contact Stuart Showalter.

As an organization we plan to be at the State House again on 05 January for the opening of the second session of the 116th Assembly. Organization Day for 2010 will be on Tuesday 16 November. Please plan to be to the State House by 10:00am that day if you would like to meet your local legislators and help make Indiana a more child-friendly state. You'll at least get a great lunch out of it.


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.