Indiana Supreme Court rules Sole Custody UNCONSTITUTIONAL

In what legal scholars are calling the “most shocking case of judicial activism” they have seen during their careers the Indiana Supreme Court today issued a ruling in a child custody case that “wipes out virtually thousands of child custody orders”. The court found that the children of an Avon, Indiana couple were deprived of their constitutional liberties when the trial court provisionally awarded sole legal custody to the mother and gave the father parenting time consistent with the minimum recommendations in the Indiana Parenting Time Guidelines.

In the appeal brought by the father counsel for father argued that the 15 minute provisional hearing in the parties divorce did not meet sufficient due process requirements. In particular the court did not hear evidence as to all the factors that a court must consider under IC 31-17-2-8 during the provisional hearing but did do so at the four hour final hearing. Father's appellate brief relied mostly upon case law from termination of parental rights proceedings. The Indiana Court of Appeals, in upholding the ruling of the trial court, found that father's case citations were “not germane to a dissolution of marriage proceeding”. Reviewing court have long held that due process requires a greater consideration of evidence and factors in TPR proceedings than the standard for divorces. That is because in TPR proceedings the “government is seeking to sever the relationship between children and parents whereas in the immediate cause the court is only reallocating custodial responsibilities between parents on a temporary basis”. Father sought transfer to the Supreme Court which was granted on 10 November 2012.

In father's brief he argued that Indiana's statutory scheme requires the court to consider a minimum of eight factors when making a child custody determination. In a responsive filing counsel for mother argued that courts may issue temporary child custody orders absent a full consideration of the eight factors and that to require otherwise would contravene Indiana's statutory child custody scheme and, ironically, deprive parents of due process because there would not be enough time to adequately prepare for a full hearing. However, father had argued that 92% of the custody arrangements in provisional orders were maintained through the final order. Father's argument, based upon a 2009 report found on the internet which was done by a major university showing an analysis of cases in five randomly selected Indiana courts covering a span of three years and eight judges, was apparently convincing.

In expressing the opinion for the majority Justice Steven David wrote “It is clear from the analysis of Indiana's child custody rulings that provisional orders are a de facto final order. Like the immediate action most provisional hearings, lasting a half hour or less, do not afford the parties a meaningful opportunity to be heard on the factors most relevant to making final child custody decisions.” The majority opinion went on to further state that judges rely too heavily upon the status quo between the time of the provisional and final hearings without adequate consideration of the evidence and parent child relationship prior to the provisional hearing. Married parents share joint legal custody of their children in Indiana and either can make medical, religious or schooling decisions for the children. The Supreme Court found that stripping a parent of legal custody during a “cursory provisional hearing” which becomes the final order in 92% of cases does not meet due process standards and “deprives children of their right to the care and control” of parents who have not been found to be unfit to exercise decision making authority pursuant to a meaningful hearing on the issues.

In dictum the court cautioned parents to “not believe everything they read on the Internet” and wished all a “happy April Fool's Day!”

If you need assistance with an actual child custody case then please visit my website and contact my scheduler to make an appointment to meet with me.

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Indiana Parenting Time Guidelines modifications hearing

The Domestic Relations Committee [DRC] of the Indiana Judicial Center held a public input session on Friday 21 May 2010 to receive comment about the Indiana Parenting Time Guidelines. About 15 members of the public and stakeholders appeared and gave input. Following this session the DRC met to discuss the comments received during the hearing.

There was an overwhelming agreement that Section II(D)(1) provides the greatest confusion in the Guidelines.

"If the non-custodial parent misses a regular weekend because it is the custodial parent’s holiday, the regular alternating parenting time schedule will resume following the holiday.  If the non-custodial parent receives two consecutive weekends because of a holiday, the regular alternating parenting time schedule will resume the following weekend with the custodial parent."

I have talked to numerous judges, lawyers and parents who, among each group, have conflicting views on what this section means. The DRC clearly understands the problem and will be making a language change recommendation that will make this provision clear.

Numerous speakers made comments that included references to court ordered child support payments although the comment period was specifically for input on the Indiana Parenting Time Guidelines. The comments were not entire lost on the DRC but since the Indiana Child Support Guidelines were amended effective this year it is unlikely that those comments will receive further attention.

The most important consideration from my point of view is whether children are getting the necessary access to both parents. There was overwhelming opinion that the guidelines are not being used effectively to ensure that children are receiving that. The DRC has echoed the opinion that the established minimum parenting time is being used as the standard.

The guidelines were established to be a tool to assist parents, attorneys and judicial officers in crafting parenting time arrangements. Instead, with much of the fault being attributed to attorney's misinforming clients, the guidelines are being applied as a rule for parenting time. The DRC understands that they need to craft stronger language advising parties that the guideline parenting time is a minimum that should be considered when creating a parenting time plan.

The DRC established 11 areas that recommended changes will be made in. Assignments to those subcommittees were made during the afternoon meeting. In March I made a presentation to the DRC about "Virtual Visitation". This is one section that will be added to the Guidelines. I will also be seeking to have it added to the statutory framework in the 2011 session of the Indiana General Assembly.

Significant and informative feedback was also received in writing. I will be presenting some of those to you in the near future.

The DRC will meet in additional sessions this year for the purpose of writing the revisions to the guidelines. It is the goal of the DRC to have the revised guidelines available this year for consideration by the Indiana Supreme Court for adoption at the beginning of 2011. Information on this process and our proposals may be found here.


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©2010 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Make your changes to the Indiana Parenting Time Guidelines

The Indiana Domestic Relations Committee of the Judicial Conference of Indiana [DRC] met on Friday 22 January 2010 for the first session of the year. The Committee is comprised of 12 judges, magistrates or commissioners from throughout the state. Their purpose is to formulate the rules and guidelines that govern domestic relations cases in the Indiana Courts.

At the top of the agenda for 2010 is amending the Indiana Parenting Time Guidelines [IPTG]. Committee Chair Judge William Fee said he would like to complete the process by the end of the year.

This will be the first time that the IPTG have been amended since first written. The Committee is seeking input from a variety of sources including the public, practitioners, judges and professionals in the field of child custody or child psychology.

The Committee plans to meet on the following dates:
Friday 19 February 2010
Friday 19 March 2010
Friday 21 May 2010
Friday 16 July 2010
Friday 20 August 2010
Friday 22 October 2010*
* tentative

Although the meetings are open to the public they are not a public input session. Anyone who would like to attend a meeting may contact me and I will ask that he or she be added to the guest list.

The members of the Committee decided that they would like to receive public testimony in addition to written input. 19 March 2010 has been tentatively set as the date for a hearing to receive public testimony at the Indiana State House. I will provide additional information as it becomes available.

Judge Fee gave me an opportunity to present to the Committee for a few minutes. I introduced myself to the members I do not already know and then gave a brief history of the development of the Indiana Custodial Rights Advocates [InCRA]. I informed the members that InCRA is available as a resource for them to use in this process. We will provide testimonial and written input, do research and promote the input sessions to the public and media.

Robert Monday of the Children's Rights Council was also in attendance as he typically has been for all DRC meetings. Monday was an instrumental force in the recent revisions to the Indiana Child Support Guidelines.

I am grateful that I have been given a unique opportunity to be a voice for you to express your concerns about the IPTG. You will also have the opportunity to attend the public hearing and submit written input. I would like to have mothers and fathers including custodial and non-custodial parents [NCP] of each testifying. The Committee wants your input and providing them with feedback as to what has been and has not been effective using the IPTG will help them to better shape the Guidelines for the future.

Anyone who wants to testify or has suggestions should contact me. Written input, which I will take to the Committee, may be sent to me at P.O.B. 374, Lebanon, IN 46052. When the Committee posts the public input information on their website I will post that information here.

Some of the comments I heard at the meeting included that too often father is used as synonymous with NCP and mother is as the custodial parent; that there needs to be an emphasis on the Guidelines being only a guideline and not adopted as the typical parenting time plan, and; that the minimum time for NCP and newborns is not sufficient enough to allow for bonding.

The Guidelines are nothing more than a recommendation of what the MINIMUM should be. I will be proposing that the Committee needs to find a way to emphasize to judges, practitioners and litigants that giving our children the minimum is often not enough.

Currently there is a subcommittee working on parenting coordination. I fully support the concept that all parents who do not come to court with a parenting time plan should be sent to a parenting coordinator. One concern I have though is that the coordinators may have a bias in favour of mothers and not deviating significantly from the Guidelines.

Please do not miss this opportunity to make your changes to the Indiana Parenting Time Guidelines.

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©2010 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.