During this latest moderate viral outbreak you will be provided with numerous opportunities to judge the various ethical attributes of businesses and people. Menards has been treating their customers [many now former customers] like lepers; requiring them to stand in line to buy a facemask before conducting business. Other businesses and people are not conducting business or not meeting deadlines. In short, a measure for integrity, a separation of failure and success, a demarcation between winners and losers has been established.
As a staunch advocate of free will I am all for allowing people who are failures to choose to fail and for losers to choose to lose. However, when it comes to the pressing matters of child custody cases failures should not be tolerated. That is precisely the intent and wording of the Indiana Supreme Court in crafting Indiana Trial Rule 53.1 which establishes the time limits for a judge to entertain a motion.
TR53.1(A) Time limitation for ruling.
In the event a court fails for thirty (30) days to set a motion for hearing or fails to rule on a motion within thirty (30) days after it was heard or thirty (30) days after it was filed, if no hearing is required, upon application by an interested party, the submission of the cause may be withdrawn from the trial judge and transferred to the Supreme Court for the appointment of a special judge. [emphasis added]
Not all motions are required to be set for hearing or ruled upon within 30 days. The rule does make some exceptions. Primarily is that the matter has been set for alternative dispute resolution [ADR] or that the court is awaiting a report on ADR. There are four additional exceptions delineated under subsection B;
(1) The Court, within thirty (30) days after filing, orders that a motion be considered during the trial on the merits of the cause; or
(2) The parties who have appeared or their counsel stipulate or agree on record that the time limitation for ruling on a motion shall not apply; or
(3) The time limitation for ruling has been extended by the Supreme Court as provided by Section (D) of this rule; or
(4) The ruling in question involves a repetitive motion, a motion to reconsider, a motion to correct error, a petition for post-conviction relief, or a ministerial post-judgment act.
Exceptions 1 and 2 are self explanatory therefore I will not elaborate. Exception 3 warrants greater attention and detail.
First though is the rule for calculating the time;
TR53.1(C) Time of ruling.
For the purposes of Section (A) of this rule, a court is deemed to have set a motion for hearing on the date the setting is noted in the Chronological Case Summary, and to have ruled on the date the ruling is noted in the Chronological Case Summary.
For purposes of the rule the motion is not required to be heard within 30 days but only that within 30 days a hearing date is to be set for some time. Under subsection D a judge may apply for an extension of the time in which to rule upon a motion or set it for hearing by making an application to the Indiana Supreme Court to extend the deadline for the particular motion. The application must first meet certain requirements. It must be filed with the Clerk of the Indiana Supreme Court prior to the time an interested party seeks enforcement of the deadline. It must set forth the nature of the motion, the circumstances warranting the delay, and the amount of additional time requested in which to set the matter for hearing or to rule upon the motion. Additionally, the application must be verified, and must be served on the Clerk of the Courts where the matter is pending and all parties of record.
During the SARS CoV-2 panic the trial courts may delay setting motions for hearing or ruling upon them if the judge follows the requirements of TR53.1. Pursuant to the Indiana Trial Rules there is no automatic extension of time allowed. For greater detail about the current constitutional violations by Marion County Indiana trial courts read Arbitrary Denial of Due Process in Marion County Indiana courts / Judge Chavis and an Open Petition to the U.S. Attorney to enforce Constitutional Rights
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Motions which are not available for remedy under TR53.1 include a Motion to Reconsider, A Motion to Correct Error, or any repetive motion of matters pending. Motion to Modify Parenting Time, Motion for Rule to Show Cause, Motion to Compel, Motion for Discovery and other common motions associated with child custody matters are to be set for hearing or ruled upon within 30 days. These types are available for remedy through TR53.1
An interested party may petition for the appointment of a new judge to entertain the motion when the presiding trial court judge has failed to do so. The requirements for a party to apply for a motion to be withdrawn from the trial judge is to file a praecipe [Praecipe for Withdrawal of Motion from Trial Court Judge pursuant to Trial Rule 53.1] specifically designating the motion or decision delayed. The praecipe should note the date of filing of the motion as entered in the CCS as well as the date on which the motion should have been set for hearing or ruled upon. The praecipe should be signed and served on all other parties as would any other filing. A copy for self should also be made which will be file stamped and returned.
Upon receipt of the praecipe the Clerk of the trial court shall enter the date and time of the filing on the praecipe, record the filing in the CCS under the cause, which entry shall also include the date and time of the filing of the praecipe, and promptly forward the praecipe and a copy of the CCS to the Chief Administrative Officer [CAO] of the Indiana Office of Judicial Administration [IOJA].
If the CAO determines that a ruling or decision has been delayed beyond the time limitation set forth under TR53.1 or 53.2, the CAO shall give written notice of the determination to the judge, the Clerk of the trial court, and the Clerk of the Supreme Court of Indiana that the submission of the case has been withdrawn from the judge. The withdrawal is effective as of the time of the filing of the praecipe. The Clerk of the trial court shall record this determination in the CCS under the cause and provide notice to all parties in the case. The CAO shall submit the case to the Supreme Court of Indiana for appointment of a special judge or such other action deemed appropriate by the Supreme Court.
In one case I had a judge denied a motion the day after a praecipe was filed. That judge didn’t understand the rule though as his jurisdiction was suspended at that point the Praecipe was filed with the Clerk of the trial court.
One other matter to consider during this time is continuances. Pursuant to TR53.4 a trial or hearing may, upon the filing of a motion or by sua sponte order, be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence.
While court congestion or limitations, such as panicked people failing to do their jobs, may be an excuse which is used to justify a delay the judge must state the reasons in a petition as continuances are not automatically granted. In filing a praecipe it may be wise to anticipate these lame excuses and cite the constitutional requirements and directives of the US Department of Justice which are available here.
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