Monday, January 13, 2014

Summary Dissolution of Marriage following Domestic Violence conviction - 2014 Indiana House Bill 1014

13 January 2014

Representative Kubacki has introduced a bill that would allow a court to grant a dissolution of marriage in under 60 days following the conviction of one of the parties for an act of Domestic Violence. The synopsis of the bill is;

Dissolution in cases of domestic violence. Allows a court, in a dissolution of marriage case, to: (1) conduct a final hearing; or (2) enter a summary dissolution decree; at any time after a petition or counter petition for dissolution has been filed if a party to the action has been convicted of a crime of domestic violence against the other party or against any child living in the same household as a party. (Current law prohibits a court from conducting a final hearing or entering a summary dissolution decree earlier than 60 days after a petition or counter petition has been filed.) Requires the court to: (1) conduct the final hearing; or (2) enter a summary dissolution; as soon as practicable. Allows a family law arbitrator to enter a summary dissolution decree at any time after a petition for dissolution has been filed if a party to the action has been convicted of a crime of domestic violence against the other party or against any child living in the same household as a party. (Current law prohibits a family law arbitrator from entering a summary dissolution decree earlier than 60 days after a petition has been filed.)

A new section, 31-15-2-13.5 would be added to dissolution statutory scheme

Sec. 13.5. If a party to an action for dissolution of marriage has been convicted of a crime of domestic violence against the other party or against a child living in the same household as a party to the action for dissolution of marriage, the court:
1) may:
(A) conduct a final hearing under section 10, 11, or 12 of this chapter; or
(B) enter a summary dissolution decree under section 13 of this chapter; at any time after a petition or counter petition for dissolution of marriage has been filed; and
(2) shall:
(A) conduct a final hearing under section 10, 11, or 12 of this chapter; or
(B) enter a summary dissolution decree under section 13 of this chapter; as soon as practicable after a petition or counter petition for dissolution of marriage has been filed.


I certainly agree with the overarching principle underlying this bill, extrication from a violent relationship, but also have a due process concern. That would be the finality of the conviction. A defendant has 30 days from the entry of judgment to file a notice of appeal. If one is filed then a decision would likely not come in under six months. There may need to be an amendment to address this due process matter.

Such an amendment could read;
If a party to an action for dissolution of marriage has been convicted of a crime of domestic violence against the other party or against a child living in the same household as a party to the action for dissolution of marriage, and the conviction has not been challenged, the court:
1) may:
(A) conduct a final hearing under section 10, 11, or 12 of this chapter; or
(B) enter a summary dissolution decree under section 13 of this chapter; at any time less than 60 days but not less than 30 days after a petition or counter petition for dissolution of marriage has been filed; and
(2) shall:
(A) conduct a final hearing under section 10, 11, or 12 of this chapter; or
(B) enter a summary dissolution decree under section 13 of this chapter; as soon as practicable but not less than 30 days after a petition or counter petition for dissolution of marriage has been filed.

There is currently a pending bill to amend IC 31-19-11-6 which provides that a court may not grant an adoption following a termination of parental rights if that determination is under appeal. This follows the ruling by the Indiana Supreme Court in C.A.B. v. J.D.M., 992 N.E.2d 687 (Ind. 2013) that the grant of adoption without parental consent was a due process violation. Consent was not needed following the TPR but when that TPR finding was reversed on appeal the adoption became voidable and the trial court should have set aside the adoption.

I see the potential for such legal ping-pong occurring here following the reversal of a Domestic Violence conviction. A court may be forced to declare a dissolution void and thus “remarry” the divorced parties.

Finally, I see a contradiction in section 1 which authorizes [may] a court to take action and section 2 which mandates [shall] a court to take action.

The bill has been referred to the Committee on the Judiciary.

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1 comment:

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