Wednesday, March 27, 2013

Drafting Your Own Child Custody Agreement / Order - Indiana

Writing a child custody settlement agreement or any amendments thereto need not be complicated or expensive. The majority of cases in Indiana now involve at least one self-represented party. Judicial officers can find this to be challenging at times but it can also be a great benefit when outside agitators who can profit from perpetuating litigation are removed from the situation. The Indiana Court of Appeals notes “that deciding how much help to give pro se litigants is a constant problem for our trial courts.”[fn1] Further “It is well settled that pro se litigants are held to the same standard as licensed attorneys.”[fn2]

Thus when it comes time to drafting a settlement agreement without the assistance of attorneys the parties will be legally bound to the agreement with the same force as any other contract. There exists then a significant danger that an agreement may not exude the force that one anticipates. I will provide an example within this article. Careful consideration must be given to what are stipulated as the underlying facts of the agreement as “a stipulation of fact constitutes a waiver by a party as to the existence of that fact. The party may not thereafter contest the fact or maintain a contrary position as to an issue which is resolved by the stipulation[fn3].

Judicial officers may make accommodations to assist pro se litigants the opportunity to present their cases. However they may be reticent to provide guidance in drafting agreements as uncovering errors may disproportionately affect one party which could then be perceived as advocating for that party; which is not allowed[fn4]. A party may not complain of errors that he or she induced the trial court to make; a party many not invite error and then rely on such error as a reason for reversal, because error invited by the complaining party is not reversible error[fn5].

In a child custody matter the court is obligated to ultimately consider the “best interest of the child.” No agreement between parties affecting custody automatically binds the trial court[fn6]. Rather, it is the trial court’s responsibility to determine what custody arrangement is in the best interests of the children, and “[a] stipulation [between the parties] cannot place restrictions upon a court’s duty to protect the best interest of a child.”[fn7] Indiana's statutory law provides the minimum factors that a court must consider in making or accepting a child custody agreement[fn8]. Parents may by agreement neither force the court to negate its obligation to serve the best interest of the child nor abandon the law. “It has long been established that parties to litigation may not stipulate as to the law and force a legal conclusion according to their understanding or agreement.”[fn9] The principle was stated as follows:
“Neither parties, nor their attorneys, may enter into a stipulation which purports to bind the trial court with respect to a question of law; and any such stipulation is a nullity. A trial court commits reversible error when it enforces a stipulation, entered into by parties through their attorneys, which runs contrary to statutory provisions.”

In the agreement which prompted this discourse the Mother and Father reached consensus on the parenting time issue which was reduced to writing by Mother. The agreement was prompted by father's discovery that mother was in the process of relocating to Texas. Mother had gone to Houston, Texas, for a two week visit with a boyfriend she had in high school. While there, she had found employment at a fast food restaurant, making an hourly wage of $7.50. Besides finding employment, Mother’s other reason for relocating to Texas was to avoid having her car repossessed as she was behind on her car payments. [On a sidenote, as the former owner of a repo company, I can say that fleeing across state lines to avoid repossession is a crime] Father contacted the Indiana State Police who were unable to provide assistance. He also sought assistance from his support network who was able to convince mother not to abscond with the child. The parents then reached this agreement:
I, [Father], am agreeing to keep [A.P.] for one year, due to circumstances of the [M]other, [], leaving the state for a job opportunity.
I [Father], am also agreeing to return [A.P.] to her [M]other, [], on the day of her return, no questions asked or court involved.
[Mother] has custody of [A.P.] and it will remain that way during my, [Father], caring for [A.P.] for this period of time.
Also the child support coming outta [Father] check will be paid back in full every week. If not paid this paper is voided.

Mother then went to Texas and left the child with father. There are a few problems with this agreement that I will touch upon lightly. First, there is no significant factual foundation provided as to father's ability to meet the child's needs and best interest. Second, is that the agreement creates a prospective modification upon mother's relocation back to Indiana. “[A] trial court may not prospectively order an automatic change of custody in the event of any significant future relocation by” Mother[fn10]. Additionally, the agreement purports to dissolve the court of jurisdiction which the parties may not do as previously explained.

The glaring problem here, at least from my perspective, is the termination clause in the agreement. “[T]he child support coming outta [Father] check will be paid back in full every week. If not paid this paper is voided.” I speculate that father was subject to an income withholding order and that these parents agreed that mother would return that money to father since she was not supporting the child. I further speculate that father sought the termination clause as a method to ensure return of the child support payments made to mother – if money isn't returned then he will seek a custody modification based upon abandonment. That is not what the termination clause states though.

Here is the danger in having inexperienced parties, or attorneys for that matter, draft agreements. The father was using his subjective lens when drafting that clause. He suffered from tunnel vision and did not collaterally attack the clause. Here is another way to look at the termination clause;
Upon failure to return support payments for at least one week to father, mother may at anytime thereafter retrieve child from father and relocate to Texas. Father will be subject to parenting time pursuant to the Indiana Parenting Time Guidelines when distance is a factor. Mother shall retain sole legal custody of the parties' child and father will continue to pay child support through the then current income withholding order at the same rate.

I think what father intended to say may have been;
If mother fails to return support payments received through a withholding order against father within seven (7) days of receipt then father may seek a custody modification through the court and this agreement will be void upon such determination by the court.

Before signing a future agreement this father “outta” get professional assistance.

If you would like assistance in reaching or drafting your own child custody settlement agreement or modification then please visit my website and contact my scheduler to make an appointment to meet with me.

1] In re Paternity of T.B. 2011-04-14
2] Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005).
3] Woods v. Woods, 788 N.E.2d 897, 901 (Ind. Ct. App. 2003).
4] Code of Judicial Conduct Rule 2.2
5] Stolberg v. Stolberg, 538 N.E.2d 1, 5 (Ind. Ct. App. 1989)
6] Keen v. Keen, 629 N.E.2d 938, 940 (Ind. Ct. App. 1994).
7] Beeson v. Beeson, 538 N.E.2d 293, 298-299 (Ind. Ct. App. 1989).
8] Indiana Code 31-14-13-2[paternity], 31-17-2-8[dissolution of marriage]
(1) The age and sex of the child.
(2) The wishes of the child’s parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parents; (B) the child’s siblings; and (C) any other person who may significantly affect the child’s best interest.
(5) The child’s adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.
9] App v. Class, 225 Ind. 387, 396, 75 N.E.2d 543, 548 (1947). In Marchal v. Craig, 681 N.E.2d 1160, 1162 (Ind. Ct. App. 1997),(citations to original case omitted). 10] Bojrab v. Bojrab, 810 N.E.2d 1008, 1012 (Ind. 2004).

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1 comment:

Joan Price said...

I went to Marshall Davis Brown to weigh my choices before deciding to conceive (since I'm not married, I was confused what the options were). I think it's good to set up a contract that is drawn up by a lawyer you trust before entering into any sort of family-related contract, and to make sure they're a great and reputable lawyer. There is too much that can go wrong in these kind of situations.