05 February 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
A Madison County Indiana magistrate died peacefully at his home on the morning of Tuesday 04 February 2014. George G. Pancol, age 87, was the judicial officer who gained notoriety in 2010 for stripping an Anderson man of the custody of his children because Pancol found him unfit to parent because the man changed his religious preference from Christian to agnostic.
I wrote about the notice of appeal filed in that case in which the Indiana Court of Appeals issued a Stay which had the effect of returning the children's father to the children.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Wednesday, February 5, 2014
Agnostic Parents more likely to retain custody of their children - Magistrate George G. Pancol died at age 87.
Saturday, January 18, 2014
Bill to Amend Non-Support of a Dependent Child Statute IC 35-46-1-5 - Child Support 2014 Indiana Senate Bill 63
17 January 2014 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
review scheduled for public comment
Senator Michael Young, Chair of the Committee on Corrections & Criminal Law, has introduced a bill that will bring greater continuity to and increase the level of equity in cases of non-support of a dependent as a criminal offense. The current statute has plagued courts, practitioners and defendants because of the perceived ambiguity of the statute through inclusion of a dollar amount in the sentencing enhancement portion of the statute.
The synopsis of the bill is;
Nonsupport of a child. Changes the penalty enhancement for nonsupport of a child from a Level 6 felony to a Level 5 felony if the person has a previous conviction for the offense. Changes the procedure for a court to lower the penalty for a person convicted of nonsupport of a child. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)
Here is the portion of the bill that would affect the charge of criminal non-support of a dependent - IC 35-46-1-5;
[strike]if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).[close] [insert]the person has a previous conviction under this section.[close]
The inclusion of “fifteen thousand dollars” as well as the phrase “due and owing” has led to confusion about whether this section applies to civil child support payment orders. However, the statute is clear and unambiguous in that it does not include court ordered child support payments. IC 35-46-1-1 provides a clear definition of “support” as “food, clothing, shelter, or medical care ” Under the application of statutory construction the “fifteen thousand dollars” and “due and owing” cannot represent a child support payment amount. Expressio unius est exclusio alterius deems child support payments to be specifically excluded from the “support” contemplated by the legislature when this law was crafted. Expressio unius est exclusio alterius is a latin legal phrase [called a maxim] which means – that which is not included is excluded. The legislature was specific in proscribing only four categories of support that qualify as inclusive of the domain in which criminal accountability is contemplated. Thus, lack of “emotional support” or “learning aides” are not within the purview of IC 35-46-1-5. Educational neglect is specified under IC 35-46-1-4(a)(4) while emotional abuse may fall within the auspices of general abuse and neglect under IC 35-46-1-4(a)(1).
The only logical application of “fifteen thousand dollars” or the phrase “due and owing” would be to medical bills as it is highly unlikely that food, clothing or shelter would be provided on credit for any amount that could come close to $15,000. This can create a great disparity in application of the law. While one parent could regularly take a child for treatment at a hospital emergency room and not pay for five visits while not breaching the $15,000 threshold, another could breach that limit from one severe trauma such as an open cranial TBI. There was also no requirement that the person must have had the ability to pay the outstanding bills. I find that to be a substantive due process issue.
The remainder of the bill applies to the sentencing portion and post execution reduction of the offense level.
The bill adds the following section to IC 35-50-2-6 that replaces the existing language which was not as precise and was more discretionary in the process.
(c) Notwithstanding subsections (a) and (b), if a person commits nonsupport of a child as a Class C felony (for a crime committed before July 1, 2014) or a Level 5 felony (for a crime committed after June 30, 2014) under IC 35-46-1-5, the sentencing court may convert the Class C felony conviction to a Class D felony conviction or a Level 5 felony conviction to a Level 6 felony conviction if, after receiving a verified petition as described in subsection (d) and after conducting a hearing in which the prosecuting attorney has been notified, the court makes the following findings:
(1) The person has successfully completed probation as required by the person's sentence.
(2) The person has satisfied other obligations imposed on the person as required by the person's sentence.
(3) The person has paid in full all child support arrearages due that are named in the information.
(4) The person has not been convicted of another felony since the person was sentenced for the underlying nonsupport of a child felony.
(5) There are no criminal charges pending against the person.
(6) The prosecuting attorney agrees to the reduction of the penalty.
(d) A petition filed under subsection (c) must be verified and set forth the following:
(1) A statement that the person was convicted of nonsupport of a child under IC 35-46-1-5.
(2) The date of the conviction.
(3) The date the person completed the person's sentence.
(4) The amount of the child support arrearage due at the time of conviction.
(5) The date the child support arrearage was paid in full.
(6) A verified statement that no further child support arrearage is due.
(7) Any other obligations imposed on the person as part of the person's sentence.
(8) The date the obligations were satisfied.
(9) A verified statement that there are no criminal charges pending against the person.
(e) A person whose conviction has been converted to a lower penalty under this section is eligible to seek expungement under IC 35-38-9-4 with the date of conversion used as the date of conviction to calculate time frames under IC 35-38-9.
In the last session of the general assembly the criminal offenses were re-codified and offense levels were changed from alphabetical to numerical designations. The prior Class D felony has been split into two levels consisting of Level 5 and Level 6.
The term for a Level 5 felony is found in Indiana Code 35-50-2-6(c) ver. b
A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being two (2) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).
The term for a Level 6 felony is found in Indiana Code 35-50-2-7(b) ver. c
A person who commits a Level 6 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/2) years, with the advisory sentence being one (1) year. In addition, the person may be fined not more than ten thousand dollars ($10,000).
This bill was referred to the Committee on Corrections & Criminal Law where it passed 6-0 and went on to the full Senate. It is set for second reading on Tuesday 21 January 2014 at 1:30 p.m.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Friday, November 8, 2013
The Right to Counsel in Indiana Child Support Payment Order Contempt of Court Proceedings
* * * * * * * 2015 Indiana Child Support Guidelines * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
UPDATE: The Indiana Court of Appeals issued
a Published Opinion in June of 2014 affirming
the right to pauper counsel in child support contempt proceedings.
* * * * * * *
review scheduled for public comment
Child support payment orders can produce significant contention in a dissolution or paternity case and are likely to exacerbate problems in an already contentious proceeding. It is therefore imperative that courts set amounts that are appropriate for both parents. It has been well established that the greater the involvement of a non custodial parent with the child the greater the compliance with support orders. But even with just orders and sufficient parenting time lapses or complete cessation in support payments can and do occur.
The Indiana Supreme Court has held that contempt is available to assist in the enforcement of a child support order so long as the delinquency was the result of a willful failure by the parent to comply with the support order and the parent has the financial ability to comply. Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind. 1993). Civil contempt is also known as “coercive” or “remedial” contempt because it seeks to remedy the violation of a court order. The purpose of the contempt is to persuade the contemnor to obey a previous order. Indirect civil contempt is a willful violation of a court order intended to benefit an aggrieved party that takes place outside the trial court’s presence. See In re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct. App. 2011).
The Clark County Prosecutor's Office provides this guidance about contempt proceedings.
If the court finds that a person is delinquent in the payment of child support as a result of an intentional violation of an order for support, the court may find the person in contempt of court. As a result of this finding, the Court has the authority to commit the person to jail for a reasonable time, usually up to a maximum of 180 days. While this is a civil and not a criminal proceeding, and does not result in a "conviction," the threat of incarceration often operates as a strong incentive to pay the ordered support.
The Child Support Division is required to file a Verified Information for a hearing on a Rule to Show Cause when a person is delinquent in child support payments and there is evidence of willful non-payment of child support. This is a legal pleading demanding that the person "show cause" why they should not be held in contempt of court for failure to pay child support. However, in order for the person to be held in contempt of court, it is necessary that they receive notice of the hearing, understand the nature of the allegations against them and have an attorney present before sentencing. Notice of the hearing is ordinarily accomplished through certified mail or personal service by the Sheriff. At the hearing, it must then be established that the person was aware of the support order, had the ability to pay, and willfully failed to pay in compliance with the order.
Civil contempt consists of a violation of a court order resulting in a proceeding for the benefit of the aggrieved party, and any penalty in a civil contempt proceeding must be coercive or remedial in nature; by contrast, criminal contempt consists of an act directed against the dignity and authority of the court that obstructs the administration of justice and tends to bring the court into disrepute Jones v. State, 847 N.E.2d 190, 199 (Ind. Ct. App. 2006), trans. denied.
In contempt cases the alleged contemnor must be given notice of the alleged contemptuous acts such that he or she has adequate time to prepare a defense. Showalter v. Brubaker, 650 N.E.2d 693, 701 (Ind. Ct. App. 1995). “Failure to give such notice results in prejudice to the defendant.” Id. However, parties may impliedly consent to trial of an unpled issue where both parties litigate the new issue during the proceedings. Columbia Club, Inc. v. American Fletcher Realty Corp., 720 N.E.2d 411, 423 (Ind. Ct.
App. 1999), trans. denied.
Contempt to collect child support includes the possibility of imprisonment. Penalties designed to compel future compliance with a court order are considered to be coercive and avoidable through obedience. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994). Thus, if the court uses imprisonment to coerce the defendant into doing an affirmative act, the court must provide the defendant with “‘the key of his prison in his own pocket.’” Moore v. Ferguson, 680 N.E.2d 862, 865 Ind. Ct. App. 1997) (quoting Webster v. State, 673 N.E.2d 509, 512 (Ind. Ct. App. 1996)). Thus, a contemnor jailed for contempt of court as failure to abide by the court's child support payment plan must be able to release himself by complying with the order – paying the arrears.
Not all support arrears are enforceable through the possibility of imprisonment though. In re Paternity of L.A. by Eppinger v. Adams, 803 N.E.2d 1196 (Ind.Ct.App.2004), trans. denied, the court noted that in that case the prosecutor's office filed an information for rule to show cause why the father should not be held in contempt for his failure to pay a child support arrearage. Id. at 1197-1198. The trial court discharged the rule to show cause because it concluded: Once a child is emancipated and the “natural duty” of the parents to provide for the maintenance of the child no longer exists, whether a request for relief under IC 31-16-12-6 is prosecuted by a “trustee” collecting child support or the trustee's assignee, the use of contempt remedies such as attachment and imprisonment to enforce a child support arrearage would violate of [sic] Article 1, § 22 of the Indiana Constitution which prohibits “imprisonment for debt, except in the case of fraud.” Id. at 1198. On appeal, the court agreed and concluded “that the use of contempt to enforce an order for child support arrearage after a child is emancipated is prohibited by Article One, Section Twenty-Two of the Indiana Constitution.” Id. at 1201. This opinion relied upon Corbridge v. Corbridge, 230 Ind. 201, 207, 102 N.E.2d 764, 767 (1952), where our supreme court held: The extraordinary remedy of attachment for a civil contempt of court is available, not for the protection of the one having custody of the child, but for the benefit of the child, so that it may not want for necessities during the period of its minority. When the child reaches its majority the purpose and justification for the extraordinary remedy cease, and the court has no right to coerce the back payments of support by imprisonment. Corbridge, 230 Ind. at 207, 102 N.E.2d at 767.
This is the type of restriction placed upon judges that often times elude the lay person whose concepts of judicial procedures usually reside in broad or general interpretations. The trained practitioners are sometimes no better but in general are much more effective at ensuring due process than the self-represented litigant. Indiana Code section 34-47-3-5 includes a list of procedural safeguards for those charged with indirect contempt.
34-47-3-5
(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:
(1) before answering the charge; or
(2) being punished for the contempt;
to be served with a rule of the court against which the contempt was alleged to have been committed.
(b) The rule to show cause must:
(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;
(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and
(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.
(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.
(d) A rule provided for under subsection (b) may not issue until the facts alleged to constitute the contempt have been:
(1) brought to the knowledge of the court by an information; and
(2) duly verified by the oath of affirmation of some officers of the court or other responsible person.
As added by P.L.1-1998, SEC.43.
Indirect contempt proceedings may be used to enforce child support obligations. Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct. App. 2005). Such proceedings require an array of due process protections, including notice and the opportunity to be heard. In re Paternity of J.T.I., 875 N.E.2d 447, 450 (Ind. Ct. App. 2007). This is provided by statute as I have just shown. Our statutory framework does not provide for the right to counsel in a civil contempt proceeding. However, our reviewing courts have established a right to counsel when certain criteria are met. A person may not be incarcerated by the government without first being
advised of his or her constitutional right to counsel. Marks, 839 N.E.2d at 706. If an
individual is in jeopardy of incarceration because of a contempt proceeding and that
person is indigent, he or she may not be incarcerated without having counsel appointed to
represent him or her. Id. It is error if the court imprisons a contemnor without first providing him or her with the opportunity to obtain the assistance of counsel.
Looking to federal law and rulings by the federal courts does not provide any clearer right. The Fourteenth Amendment’s Due Process Clause does not automatically require the State to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration. In particular, that Clause does not require that counsel be provided where the opposing parent or other custodian is not represented by counsel and the State provides alternative procedural safeguards equivalent to adequate notice of the importance of the ability to pay, a fair opportunity to present, and to dispute, relevant information, and express court findings as to the supporting parent’s ability to comply with the support order.
Due process does not always require the provision of counsel in civil proceedings where incarceration is threatened. See Gagnon v. Scarpelli, 411 U. S. 778. Because a contempt proceeding to compel support payments is civil, the question whether the “specific dictates of due process” require appointed counsel is determined by examining the “distinct factors” this Court has used to decide what specific safeguards are needed to make a civil proceeding fundamentally fair. Mathews v. Eldridge, 424 U. S. 319, 335. As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].” Ibid.
This dictates that the right to counsel must be decided on a case-by-case basis. The Mathews court did not leave the decision entirely to judicial discretion however. It provided that guidance in saying “substitute procedural safeguards,” if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. These include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Mathews, supra, at 335,
In Turner v. Rogers, [564 U.S. ___, 131 S. Ct. 2507 (2011)] the US Supreme Court [SCOTUS] overturned an order of incarceration for civil contempt as non payment of child support. Under the circumstances, Turner’s incarceration violated due process because he received neither counsel nor the benefit of alternative procedures like those the Court describes. He did not have clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. And the trial court did not find that he was able to pay his arrearage, but nonetheless found him in civil contempt and ordered him incarcerated.
This was not the argument made by Turner in the case. Turner argued to SCOTUS that his incarceration was improper because he was entitled to legal counsel. Justice Thomas in his dissent said he would have let the lower court opinion stand because Turner was not entitled to counsel. It was the US Government who filed an amicus brief raising the issue of due process which the court took up in it's analysis. This goes against long standing decisions about deciding matters not raised in the lower courts. SCOTUS has held that it is the wise and settled general practice of this Court not to consider an issue in the first instance, much less one raised only by an amicus. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”); Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per curiam) (“[T]his is a court of final review and not first view” (internal quotation marks omitted)); United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981). Technically the South Carolina ruling should have been upheld but this case had the potential to affect many others and more clearly establish guidelines to lower courts.
Action Transmittal 12-01 from the Commissioner of the Office of Child Support Enforcement provides an analysis of the Supreme Court decision and policy recommendations to guide state child support enforcement practices into alignment with the holding in Turner v. Rogers. It recommends that states using incarceration in civil contempt proceedings to compel child support payments adopt the following procedures:
A. IV-D agencies should consider screening cases for actual and present ability to pay before referring or initiating civil contempt proceedings that can lead to incarceration.
B. Notice should be provided to the obligor that “ability to pay” is a critical issue in the contempt proceeding.
C. Judicial procedures should provide an opportunity for the defendant to be heard on the issue of ability to pay and result in express court findings [i.e. a written determination by the court].
Alleged contemnors should look to those recommendations as a minimum to be observed in their particular case.
The Federal Government believes that “the routine use of contempt for non payment of child support is likely to be an ineffective strategy,” the Government also tells us that “coercive enforcement remedies, such as contempt, have a role to play.” Turner v. Rogers, 564 U.S. Brief for United States as Amicus Curiae 21–22, and n. 8 (citing Dept. of Health and Human Services, National Child Support Enforcement, Strategic Plan: FY2005–2009, pp. 2, 10).
Notwithstanding enforcement of child support payment orders through contempt proceedings which threaten jail time will still be used. The federal constitution does not provide an absolute right to the appointment of counsel for alleged contemnors, even those who are indigent. Clearly procedural safeguards where established through Turner v Rogers that focus more on the ability to pay and informing the contemnor that this will be the crux of the proceeding. The Indiana Constitution and case law provides a stronger safeguard for alleged contemnors and that the right to counsel is an absolute before one can be incarcerated.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Tuesday, June 11, 2013
Notice of Intent to relocate - Indiana Code 31-17-2.2 et seq
In Indiana a parent who has a child that is subject to a custody order or parenting time order must file a notice of intent to relocate before attempting to relocate the child to a new residence [31-17-2.2-1]. The notice requirement applies to any party who is subject to a custody or parenting time or grandparent visitation order involving an unemancipated child. The requirement applies regardless of distance involved in the relocation – even if it is across the hallway in an apartment complex. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
“Relocation” is “a change in the primary residence of an individual for a period of at least sixty (60) days” [Swadner v. Swadner, 897 N.E.2d 966, 975 (Ind. Ct. App. 2008)].
The relocation notice requirements may seem burdensome but are easily manageable with proper planning. Each element of the requirement serves a legitimate purpose which may initially appear absurd in some cases but are significant in others. The subjective requirements are as follows [31-17-2.2-3(a)(2)];
The intended new residence, including the address of the relocating individual;
The home telephone number of the new residence, if one exist, and any other applicable telephone number for the relocating individual;
The date that the relocating individual intends to move;
A brief statement of the specific reasons for the proposed relocation of the child; and
A proposal for a revised schedule of parenting time or grandparent visitation with the child.
The notice shall be filed at least 90 days prior to the anticipated relocation date. [31-17-2.2-3(a)(1)(B)]. If the information cannot be obtained at least 90 days prior to the move then the notice can be filed without that information but it must be supplemented not later than ten (10) days after the date that the relocating individual obtains the information [31-17-2.2-3(b)].
If a party wishes to oppose the relocation of the child then he or she may file an objection not later than sixty (60) days after receipt of the notice from the relocating individual [31-17-2.2-5(a)]. Either party may request a full evidentiary hearing on the motion to prevent the relocation [31-17-2.2-5(b)]. The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason [31-17-2.2-5(c)]. If the relocating individual meets the burden of proof that the proposed relocation is made in good faith and for a legitimate reason burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child [31-17-2.2-5(d)].
If a party opposing relocation has filed an objection the court may issue a temporary restraining order preventing the relocation of the child or the return of the child to the court's jurisdiction pending a final hearing [31-17-2.2-6(a)]. In considering whether to grant the restraining order the court shall consider if the notice requirement was not served in a timely manner and the parties have not presented an agreement concerning a parenting time schedule [31-17-2.2-6(a)(1)], that the child has been relocated without the appropriate notice or an agreement between the parties or a court order [31-17-2.2-6(a)(2)], or from an examination of the evidence presented at the temporary hearing, that there is a likelihood that, after a final hearing, the court will not approve the relocation of the child [31-17-2.2-6(a)(3)]. The court, however, may grant a temporary relocation pending a final hearing if notice requirements have been met and after it reviews the evidence presented at the temporary hearing determines that there is a likelihood that it will approve the relocation of the child following the final hearing [31-17-2.2-6(b)(3)].
Any party may file a motion for the court to set the matter for a hearing to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order [31-17-2.2-1(b)]. In considering whether to modify its existing orders the court shall consider the distance involved in the proposed change of residence, the hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation, the feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements (including consideration of the financial circumstances of the parties), whether there is any relevant established pattern of conduct by the relocating individual which includes whether that individual has either promoted or thwarted a nonrelocating individual's contact with the child, the reasons provided by the relocating individual for seeking relocation and the nonrelocating parent for opposing the relocation of the child, and any other factors affecting the best interest of the child [31-17-2.2-1(b)].
In addition to those factors the court must also consider the eight factors found under I.C. 31-17-2-8 which govern child custody orders generally. While the relocation statute is a self-contained chapter and does not by its terms refer to the general change of custody provisions those must still be considered. The relocation chapter introduces some new factors that are required to be balanced, but also expressly requires consideration of “other . . . factors affecting the best interest of the child” [31-17-2.2-1(b)(6)]. The general custody determination required under 31-17-2-8 is to find “the best interests of the child” by examining the factors listed in that section. Thus, the relocation statute incorporates all of the eight factors and adds some new ones. However, there does not necessarily need to be a substantial change in one of the original 8 factors because consideration of the new factors might at least theoretically change this balance of factors [Baxendale v. Raich, 878 N.E.2d 1252, 1256 (Ind. 2008)].
The statutory framework of the relocation law is for application to child custody matters when one parent is a “relocating individual”. It is not a means by which to test waters to see what affect it would have on the custody and parenting time of the child. It is an abuse of the system to file a notice of intent to relocate without having made the substantial steps towards relocating. This is expressed in the notice requirements which include the address, telephone number, the date, and specific reasons for the relocation. A parent engaging in filing a frivolous motion to relocate may be ordered to pay attorney fees of the affected parties [31-17-2.2-1(c)].
Regardless of a custody determination or if the parent actually intends to relocate the relocating individual does still retain the right whether to relocate which a court cannot prevent. The Supreme Court of the United States has held that all citizens have a right to interstate travel “uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement,” Shapiro v. Thompson, 394 U.S. 618, 629, 631, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 15 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and laws that chill that right with no other purpose are “patently unconstitutional.” Id. (quoting United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)). The contravening interest in the right of a parent to relocate and the right of the other parent to maintain a relationship with the child are balance using the best interest standard. Thus, a parent is free to relocate but may not be able to relocate the child.
Recently I obtained an injunction preventing a parent from relocating with the children by alleging that parent was a risk to abscond with the children and the relocation was not in the children's best interest. Opposing counsel expressed his intent to withdraw the notice of intent to relocate but that has yet to happen. During my family evaluation of the non-relocating parent the children expressed no knowledge of the proposed relocation scheduled to occur three days later.
This parent has played games for years and always seeks to harm the children. Once it was realized that I would soundly prevent the relocation of the child no further attempt has been made. This parent and the attorney apparently didn't realize that the decision “ultimately turn[s] on the best interests of the child” which is, after all, the “overarching policy goal of all family court matters involving children” [Lambert v. Lambert, 861 N.E.2d 1176, 1180 (Ind. 2007)].
In summary, when a parent intends to establish a new residence for at least 60 days, notice must be provided to the other parties. The court may temporarily allow or prevent the relocation based upon the likelihood of a similar ruling following a full evidentiary hearing. In addition to the eight factors that govern initial custody determinations the relocation statute also has additional factors. There does not, however, need to be a substantial change in one of the eight factors when a relocation has been proposed. Ultimately, the court is required to determine whether the relocation is in the child's best interest.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Thursday, May 16, 2013
Parenting Time Exchange Protocol - Indiana Parents, Practitioners and Judges
When it comes to making arrangements for interactions between post divorce or separated parents we must use directed consciousness towards a child centric view of parenting. Opportunities for the children to experience interactions between their parents may be frequent and fluid or limited to a rigid, court ordered schedule that occurs only at a neutral location, possibly a police department. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
For years we have heard that when parents aren't willing to forgo the harm to children caused by divorce that they should ameliorate the damage by removing conflict from the children's presence. I contend however that simply obscuring conflict from the view of the children is insufficient. Children possess great acuity about their parents feelings and will often withhold comment or suppress their own feelings so as to protect the feelings of the parents. Parenting time exchanges should be an opportunity for parents to express some civility towards each other. It must be genuine though. Children are attuned to the subtle cues such as an exhaustive sigh that a parent releases upon reentering the vehicle – so as to say I am glad that is over with.
The parenting time exchange location can send numerous messages to a child, sometimes conflicting. When practical parents should agree on an exchange routine that balances transportation responsibilities. I suggest that the parent to whom the child will be with provide the transportation. In effect the child is always picked-up, never dropped off. This travel time will also give the child an adjustment opportunity while heading to your home, so make the most of it. When both parents are capable of providing transportation then practitioners should recommend that the parent exercising parenting time do the pick up. Judicial officers should order the pick up only rule when circumstances avail themselves.
By using the pick up only rule children are never faced with the psychological impact of being dropped off which may instill a sense of a parent being done with them or remind the child of abandonment that may have occurred. Using only pick-up for parenting time exchanges conveys to the child that he or she is always wanted by someone. This is especially true for younger children but can also be important for the adolescent who has had difficulty adjusting to the new family dynamics.
Finally, a common practice that may very well have the most traumatic impact upon your child should be reviewed. I cannot stress enough the importance of examining a common departure ritual from the child's perspective. This applies to parenting time exchanges in particular but all such times as when a child or relative depart from the other. It is not uncommon to tell a child “Go give your grandmother a hug and kiss before she leaves” or some similar demand to exhibit affections either by the departing person or the parent remaining with the child. Parents who try to display a sense of cooperation and harmony around the children may also engage in this behaviour – “give you mom a kiss goodbye before we leave”. I want to be absolutely clear on this point. You may be encouraging and facilitating sexual abuse of your child.
Perpetrators of sexual abuse of children exploit opportunities like this. These departing rituals take control of a child's affections away from himself. Children should always be taught that they own their affections. They should never be forced to display affections or “show love”. Abusers groom children in a manner that skews what the normal adult population knows “love” to be. An abuser who tells a child to “show me that you love me” has a far different intent and may have groomed the child in a manner far different from what we expect when telling a child to “show grandma that you love her”. Do not force your child to show affections during parenting time exchanges or at any other time. Your children should be empowered and know that they always control their affections and are not obligated to comply to the demands for affection by any other person.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
