The Domestic Relations Committee of the Indiana Judicial Center met on Friday 22 October 2010. The morning session of the meeting was a joint session between the Domestic Relations Committee and the Alternative Dispute Resolution Committee.
Subcommittees of the two committees had been working on proposed rules for parenting time coordination. A draft of the Indiana Rules for Parenting Coordination was presented and discussed.
It was the intention of the committees when drafting these rules that Parenting Time Coordination [PTC] should be used as a last resort and that mediation or other alternatives first be sought. They do not believe it is intended for all cases but only high-conflict parties.
Currently PTC must be agreed to by the parties who pay the costs. It is usually a result of the judge encouraging the parties to seek resolution of their disputed issues before returning to contest them in court.
Parties engaged in PTC pay a retainer and sign a contract that stipulates the costs to the parties. Hourly rates vary between $50-$200 in current cases. Mark Lloyd, Alternative Dispute Resolution Committee Chair, stated that it costs much less for the parties to sit down with a Parenting Coordinator [PC] than to continue paying two attorneys to litigate the issues. Johnson County has a provision for indigent parties to have ADR opportunities.
Judge Thomas Milligan, Montgomery County Superior Court, stated that the most contentious and litigious cases involve pro se parties. This is the same thing that I have found to be true as most of my clients for litigation coaching have either spent themselves into poverty fighting or have been rejected by or fired attorneys who will not carry forth with frivolous battles.
Currently 15 states have rules or statutes on PTC. Some states permit PTC to be ordered without agreement of the parties. However, a judge can't require the parties to pay for it if judge orders it.`Hendricks Superior Court Judge Karen Love said she has forced it on parties who didn't want it but after participating were glad they did. Johnson County has a program that pays for PTC for parties who are indigent but ordered into PTC by the judge.
One of my legislative proposals for the upcoming session of the Indiana General Assembly will require that the parties in a disputed child custody action meet with a mediator before appearing in court. The mediator will provide an initial report to the court about what the contested issues are and what he or she believes the degree of conflict between the parties to be.
Judges need to be educated on the availability and benefits of PTC so they will recommend or push it on the parties. Having established rules will make the process more effective and help judges to feel more secure in ordering or facilitating PTC.
The committees worked on revising the proposed PTC rules throughout the day. The DRC had been scheduled to hear proposals by Judge William Fee and Judge Karen Love related to two sections of the Indiana Parenting Time Guidelines. Parenting Time to Occur as Planned and Enforcement of Parenting Time, Contempt and Resolution of Problems will be presented at the next meeting which is scheduled for 19 November 2010.
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Thursday, October 28, 2010
Indiana Rules Drafted for Parenting Time Coordination
Friday, October 22, 2010
Domestic Relations Committee to consider Parenting Time Coordination
The Domestic Relations Committee of the Indiana Supreme Court will begin considering Parenting Time Coordination in child custody cases when it meets at its next regularly scheduled meeting.
I have been working on writing a statute to require Parenting Time Coordination in all child custody cases before the matters are litigated by the court. I hope this can make post separation parenting a collaborative effort at the earliest time. There is plenty of evidence that shows conflict in the child custody litigation process harms children. I believe if parents are brought together at the earliest stage of the process it may reduce the litigation. I am working on a checklist of factors that should be considered in a parenting plan. Please contact me with anything that you feel should be added.
There will be a cost for this and it will be significant. I do believe that some of the costs will be recovered by reducing court congestion. More important though it will reduce the costs associated with the effects of prolonged conflict on the children. This includes psychiatric care, law enforcement actions and dependence on public resources. This cost is not easily quantified but is there.
I have one legislator who has said he is tired of hearing the excuse that we don't have money for various initiatives. If it needs to be done then find the money. I believe parenting time coordination pays for itself although it may take many years for that savings to be realized. More important than the accounting balance though is that I believe this will lead to more engaged parents and ultimately a healthier life for the child(ren) and relationship with their parents.
The Committee meets on Friday 22 October 2010 at 10:30 a.m. at the Indiana Judicial Center, 30 South Meridian Street, Indianapolis. Members of the public are invited to attend.
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Wednesday, October 20, 2010
Indiana Prosecutors Help Reduce Child Support Payment Orders
The second session of the 2010 Indiana Child Custody and Support Advisory Committee [ICCSAC] hearings continued discussion about alternatives to incarceration for non-compliance with child support payment orders. The Committee Chair, Vanessa Summers, invited additional input by some child support enforcement prosecutors from around the state.
Mr. Andrew Schweller, Deputy Prosecutor, Allen County Prosecutor's Office, discussed the prison population project. He stated that the project involved the Allen County Prosecutor's Office writing to incarcerated non-custodial parents and offering to file for a modification of child support on their behalf. In 2007 the Indiana Supreme Court, in Lambert v Lambert, ruled that child support payment orders of incarcerated individuals must be based on their income at that time and not imputed to what the person could be earning if not incarcerated.
Mr Schweller admitted that it had been the goal of prosecutors and judges to get the highest child support payment order possible but that attitude is now changing. This is in part due to new federal incentive payment regulations that base payments on five performance standards. These include the compliance rate; that is the total percent of payments collected instead of the total amount ordered. Collecting 100% of an order that is cut in half provides the state with more money than collecting 50% of an order twice the size even though both are the same amount of money.
In response to a question from Representative Summers, Mr. Schweller stated that in Allen county very rarely does a person go to jail the first time for failure to pay child support. He stated that a person would usually go through two probation hearings and work release before being incarcerated for failure to pay child support. He said that usually around sixty individuals go to prison each year in Allen county for failing to pay child support. In response to questions from Committee members, Mr. Schweller indicated that he believed using mediators and facilitators is a good idea because sometimes the problem is communication. Through bringing both parents together they can often see that a support order must be reasonable and is best for all parties if it is and then is also paid.
Ms. Kathy Dvorak, Child Support (Title IV-D) Program Administrator, St. Joseph County Prosecutor's Office, provided a handouf concerning St. Joseph County's programs for delinquent obligors. Ms. Dvorak explained that the child support division (division) tries to identify the barriers in paying child support for non-custodial parents..
Her office will subpoena both parents to an administrative hearing to determine a child support payment order. Ms Dvorak explained that the division attempts to establish support orders by stipulation/agreement. She stated that the division holds an administrative hearing to also determine what the barriers are for the noncustodial parent in paying child support
She indicated that the non-custodial parents are often grateful that the division is listening to them. She said that the division has partnered with a Notre Dame law clinic to offer mediation for child custody and support for families.
In response to a question from Mr. DeVries, a Committee member, about whether the division had incurred extra costs in implementing the programs for delinquent obligors, Ms. Dvorak indicated that the division has not received any extra resources. She stated that while there may be more costs for the additional hearings in the offices of the division, the division spends less time pursuing and enforcing child support in court.
Mr. William Welch, Deputy Prosecutor/Child Support Administrator, Monroe County Prosecutor's Office, spoke to Committee members concerning non-custodial parent services (NCPS) in Monroe County. He stated that the Monroe County Prosecutor's Office has a liaison that contacts and works with non-custodial parents throughout the child support enforcement process. He also explained how the liaison works with noncustodial parents. He stated that the liaison will refer non-custodial parents to workforce development, drug and alcohol abuse programs, and other contacts to help address the non-custodial parent's issues in failing to pay child support.
Ms. Gina Jones, Child Support Administrator/Deputy Prosecutor, Lake County Prosecutor's Office, discussed the Support for Kids Improvement Program (SKIP). She stated that if a non-custodial parent shows a willingness but inability to pay child support, the court withholds contempt for thirty days and the non-custodial parent is referred to the SKIP program. This program helps identify barriers to paying support, getting realistic support orders set and implementing a payment plan.
Both the Monroe County and Lake County programs appear to be very similar to Virginia's Intensive Case Monitoring Program. I spoke about the record of this program briefly and provided a handout to the committee members.
Ms Dvorak's statement about cost realignment was good to hear as well as Mr Schweller's belief that using mediators and facilitators reduces the burden on the courts. I have been seeking to have legislation passed which will require parenting time coordinators in divorce and paternity cases prior to entering the courtroom. While there will be additional court costs for the coordinators I do believe it will be offset by reduced courtroom litigation and should be supported for this reason.
The hardline approach that took hold in the mid 1990's which says set support as high as possible and jail those who don't pay is now having to give way to reality. Parents in jails or prisons have less opportunity to provide financial and emotional support for their children. The Indiana Supreme Court in numerous cases has established that parents must have the ability to pay the support ordered. Prosecutors are willing to help parents paying support get the orders reduced to an amount they can pay and in some instances help with parenting time issues.
This is progress in the right direction. We still have a long way to go on the parenting time issues but are getting closer. If you need help with modifying your support payment order or getting your parenting time enforced please contact me.
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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. 
Monday, October 4, 2010
Indiana Seeks Alternative to Incarceration for Child Support
The first session of the 2010 Indiana Child Custody and Support Advisory Committee [ICCSAC] hearings was dominated by discussion about alternatives to incarceration for non-compliance with child support payment orders. The Committee Chair, Vanessa Summers, had sought input on a matter that she thinks makes absolutely no sense; incarcerating a parent for not paying child support.
Tim Brown, Director of Legislative Services, Department of Correction [DOC] presented information about the Indiana Department of Corrections and offenders incarcerated for non-payment of court ordered child support. From 2006-2009 there was an average of 335 offenders with a non-support charge have that as their primary offense incarcerated with an average executed sentence of 310 days. About 3/4 of them had non-support as their primary offense.
According to statistics provided by Mr Brown, on 09 September 2010 the DOC held 217 women and 12 men for non payment of support as their primary offense. Additionally 2 women and 75 men were held for non payment of support as their secondary offense.
Of the 265 offenders released in 2006 for non payment of support as their primary offense, 113 or 42% had returned to prison by 2009. Of those, three-fourths had returned for the same offense. As Mr Brown noted the re-offend rate for non payment of support is at a much higher rate than the general population.
The total cost of this benefit to children in 2009 was $6.93M.
Cynthia Longest, Deputy Director of the Indiana Child Support Bureau presented information about the involvement of the Department of Childrens' Services involvement in child support payment enforcement. She stated that about $1B annually is processed through ISETS with the federal government paying 66% of the Title IV-D operating costs.
Of the incentive money collected from the federal government 1/3 goes to county prosecutors with the remainder split equally among three other beneficiaries including the county general fund which receives 22% by statute. That means, in essence, that a county can increase their income by having more and greater child support payment orders issued by judges.
For many years there was a mindset that breaking families apart and issuing high child support payment orders was a good method for generating income for local government. However, that attitude is now being shown to be a fallacy and some counties and prosecutors are making efforts to reduce child support payment orders.
This change came about because Indiana ranks 43rd in the county in child support payment collections and now risks losing federal incentive payments. The federal government is changing the reimbursement method from a basis of total support payments ordered to percent collected.
With support payments often being set at 1/3 or more of a parents income many have been placed in the position of facing repossession of a car, eviction from a home or paying the court ordered child support. Given that some prosecutors and judges go after parents who pay 75% just as intensely and those who pay 0% many of those paying 75% found that it was better to pay none and use the money towards maintaining basic necessities.
Prosecutors and judges who have seen partial payment rates dwindle to zero because the consequences are the same are now making efforts to get support orders reduced. If a parent who could pay 50% gets their support order cut in half then the same dollar amount would become 100% in compliance with the support order. This will increase the state's ranking and federal incentive payments.
Representative Summers said she wants fathers/parents to have more access to children. Robert Monday of PACE offered an observation that none of the prior speakers had spoken about increased parenting time or parenting time enforcement as a means of increasing the compliance rate.
Simply put, a parent who has the child is going to have to shelter the child, feed him or her and provide the other needs. There is no way to avoid providing that support. Numerous studies have also concluded that parental compliance with support payments is proportional to parenting time. That is, those who are denied parenting time pay at a much lower rate but increases as the time with the child increases.
I brought to the attention of the committee a program in Virginia called the Intensive Case Monitoring Program. In 2008, the Division of Child Support Enforcement
established the Intensive Case Monitoring Program (ICMP), an innovative measure to maximize child support collections and decrease incarceration due to non-payment. Parents who were at risk of incarceration were considered for the program. The needs of the parent such as education, housing, transportation, employment and mental health care were first met. This then allowed for the parent to start making regular support payments.
Since its inception, the ICMP has expanded to seven judicial districts with 11 judges
participating. Through June 2009, the ICMP has helped 199 participants and collected more than $175,000 in child support – an amount significantly higher than the child support paid by the same population six months prior to participation. Of the 199 participants, 26 graduated and have either begun to make consistent, timely child support payments or have fully paid off arrears and were able to close their DCSE cases.
Most graduates of the program have found stable employment and child support wage withholdings have been issued. Some graduates faced obstacles such as homelessness or disabilities, but with the assistance of case managers the participants overcame such barriers. Over $3.00 in child support is collected from each ICMP participant for every DCSE dollar expended on the program.
Virginia has found an approach that has shown much greater success than Indiana's incarceration approach which has a 42% recidivism rate within three years. Many of the problems faced by offenders prior to incarceration are on exasperated by the incarceration. Employment, housing and addiction issues are usually only compounded through incarceration rather than abated.
Clearly, as Representative Summers has recognized, Indiana needs to change its' approach to child support payment order enforcement. I will be providing additional information about the program to the committee at the next meeting.
The committee will meet for two additional sessions. Wednesday 06 October 2010 at 1:30 p.m. and Wednesday 20 October 2010 at 1:30 p.m. Members of the public are encouraged and invited to attend.
If you need help in modifying your child support payment order or need additional details on the ICCSAC meetings please contact me.
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Make a suggestion for me to write about.
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.
Sunday, September 12, 2010
2010 Indiana Child Custody and Support Advisory Committee
On Tuesday 14 September 2010 the Indiana Child Custody and Support Advisory Committee will meet for their first session of the year. The Committee will meet at the Indiana State House in room 404 at 1:30 p.m.
The agenda of the Committee will includes incarceration for non-payment of court ordered child support and child support enforcement. Tim Brown, Director of Legislative Services, for the Indiana Department of Correction and Cynthia Longest, Deputy Director of the Child Support Bureau, Department of Child Services will present on this issue. I will be providing input on alternatives to incarceration for non-payment of court ordered child support as well as presenting proposed legislation and information about "virtual visitation".
The public is invited and encouraged to attend.
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Tuesday, July 20, 2010
Being an alcoholic doesn't boost child custody chances
What may seem obvious to most people didn't seem so to Robin Ann Parks who appealed the order transferring custody of her children to their Paternal grandparents because of her alcohol abuse.
The marriage of Parks and Cary Grube was dissolved in 2006. The father was awarded custody of the parties four children, ages 10-20 years now. In 2007 the parties agreed to modify custody transferring custody of the oldest child to the mother.
It is undisputed that despite being the noncustodial parent, Parks remained very active in the Children's lives.
Cary Grube unexpectedly died at his residence in late 2008. Parks was called to the home that night by the eldest child living there. She didn't stay long and left the children with the paternal grandparents. The children and grandparents believed that she was drunk at that time.
Cary's will stipulated that his parents, the Grube's, would have custody of the children. Following probate Parks filed a petition for custody of the children. The trial court heard evidence and denied her petition. She then appealed.
During these hearings, evidence of Parks's history of alcohol abuse was presented. Specifically, Parks was arrested twice for driving under the influence of alcohol. In addition, Parks's former friend and neighbor, Milissa Woolwine, testified that she used to care for the Children because Parks was intoxicated and that Parks would “come home drunk with a stranger” during her parenting time with the Children.
Similarly, Parks's former boyfriend, Kevin Hembree, testified that Parks was intoxicated “a hundred out of a hundred and twenty” days that she lived with him in 2007. During an in camera interview two children stated that they believed their mother was intoxicated at a birthday party for one of them, which occurred after Cary had died.
Moreover, pages from the journals of the two children were presented which noted that when Parks is intoxicated, she yells at them, calls them names, and tells them that she does not want to see them again. One child wrote that when she is on the school bus, she prays that her mother is not intoxicated when she gets home.
Parks' sole argument on appeal is that there was insufficient evidence to support the trial court's decision to award custody of the Children to the Grubes.
In custody disputes between natural parents and third parties, a presumption exists that it is in the best interest of the child to be placed in the custody of the natural parent. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 458 (Ind. 2009).
Nevertheless, third parties can rebut this presumption by presenting clear and convincing evidence that the best interests of the child will be served by placing the child in the custody of the third party. In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002).
Our Supreme Court has stated that the issue is not merely the "fault" of the natural parent. Rather, it is whether the important and strong presumption that a child's interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with another person.
When making an argument to the Court of Appeals I feel that it is important not to be annoying or petty. Park's failed to do this. In her brief she argued that she had received counseling following her second drunk driving arrest but had never been treated for "alcoholism". The court had this to say in response, "Parks' argument that we find error on this basis is a request that we engage in senseless hair-splitting, which we decline to do."
One thing I encounter in custody modification proceedings is parties attempting to use circumstances prior to the last custody proceeding. Indiana Code section 31-17-2-21(c) provides that “The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 . . . of this chapter.”
However, as the trial court did in this case a court may consider an ongoing pattern of activities that affect the child's best interest. So even though the 2003 and 2005 arrest for driving while intoxicated occurred prior to the 2007 custody modification, there was evidence presented that the mother was still abusing alcohol and had been doing so for an on-going basis dating back to at least 2003. Thus, it was proper to consider the pre-modification actions.
Finally, Park's argued that the trial court impermissibly relied upon the testimony and wishes of the children to live with their grandparents. Parks is correct that it is a "longstanding rule that a change in the child's wishes, standing alone, cannot support a change in custody.” Williamson v. Williamson, 825 N.E.2d 33, 40 (Ind. Ct. App 2005).
However, Indiana Code section 31-17-2-8(3) states that “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,” is a relevant factor when determining a child's best interests. Ultimately the court must make a decision based upon the best interest of the child but the court may, and should, consider the wishes of the child.
I am a parent who doesn't have custody of my child, not because of any wrongdoing on my part, and can sympathize with the desires of Ms parks to have custody of her children. However, I think it is clear from the case documents that she has a significant problem with alcohol and this affects her ability to be an effective parent to her children. Quite simply the lesson to take from this is don't be a drunk and that factor wil not weigh on your suitability to have custody of your children.
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Make a suggestion for me to write about.
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.
Saturday, July 17, 2010
Indiana Parenting Time Guidelines revisions Part I
The Domestic Relations Committee [DRC] of the Indiana Judicial Center prepared the first set of revisions to the Indiana Parenting Time Guidelines in session on Friday 16 July 2010.
The Committee presented four revised sections of the Guidelines concerning the first three of seventeen topics. They were, the Holiday Parenting Time Schedule, Weekends generally and, Summer vacation. The first revision made was to the portion of the guidelines that has provided the greatest confusion to judges, lawyers and parents which is as follows:
D. HOLIDAY PARENTING TIME SCHEDULE
1. Conflicts Between Regular and Holiday Weekends.
"The Holiday Parenting Time Schedule shall take precedence over regularly scheduled and extended parenting time. Extended parenting time takes precedence over regular parenting time unless otherwise indicated in these 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."
This has been interpreted in various ways to mean that the alternating weekend schedule is changed and no parent gets more than two weekends in a row, that the non custodial parent is limited to two consecutive weekends while the custodial is limited to three weekends or that either parent may in practice get three consecutive weekends.
The proposed language will read:
"Alternating weekends shall be maintained through-out the year as follows. If a parent misses a regular weekend because it is the other parent's holiday then that weekend is lost. If a parent received three (3) consecutive weekends then the alternating weekend parenting time resumes on the following weekend."
Some parents have, by their own initiative, used a two consecutive weekend schedule for each parent when their is a holiday conflict. Essentially the second and third weekends are reversed and the regular schedule resumes on the fourth weekend also.
My son, Therin Showalter, was telling me how he liked it better when his mother and I did the two weekend schedule rather than three. The committee chair, Judge Fee, gave him an opportunity to speak to the Committee on this issue. Ultimately it was decided to go with the three consecutive weekend format but commentary would be added to encourage parents to do the two weekend format if they choose.
The second portion adds a section to "2. Holiday Schedule" which concerns a conflict between the child's birthday and other holidays. The added section is as follows:
"[5] When the child's birthday falls within a Special Day, Holiday or Christmas Vacation the child's birthday shall remain with the parent having the child during the Special Day, Holiday or Christmas Vacation."
The third scheduling change was made to the Christmas Vacation and New Year's Day holiday schedules. This is another section that has been quite confusing to many and created an imbalance in splitting the time or resulted in a very convoluted schedule.
The Committee has wisely chosen to eliminate the New Year's Day holiday. The entire Christmas Vacation will now be divided in half. The Christmas Vacation period will begin two hours after the dismissal of school and end at 6:00pm on the day before school is scheduled to resume. The exchange time must occur between 9:00am and 9:00pm.
In odd numbered years the non custodial parent shall have the first half and in even numbered years the custodial parent shall have the first half of the break. In those years when Christmas does not fall in a parent's week, that parent shall have the child(ren) from Noon to 9:00pm on Christmas Day.
The final scheduling change was the addition of Martin Luther King Day and Presidents Day to the Holidays section. Parents who have the children on the weekend immediately preceding those days will keep the children overnight on Sunday if the children's school system is not in session on either or both of those holidays.
The final change by the Committee was a clarification of section "C. Holidays" which reads:
"In years ending with an even number, the non-custodial parent shall exercise the following parenting time:" and list the particular holidays. Following that is; "In years ending with an odd number, the non-custodial parent shall exercise the following parenting time:"
It was mentioned that it needs to be mentioned what the corresponding schedule is even though it seems obvious that the schedules reverse in the next year. I submitted the following language which was added to the revised Guidelines;
"The following Holidays shall be exercised by the non-custodial parent in odd years and the custodial parent in even years." and then "The following Holidays shall be exercised by the non-custodial parent in even years and the custodial parent in odd years." for the second section of holidays.
The Committee will meet again on Friday 20 August 2010. The two topics for that meeting will be, Using the IPTG to plan ahead, using the calendar and the tone of cooperation and Relocation.
The Committee is scheduled to complete their proposed revisions by 18 March 2011. The completed revised guidelines will then be posted for public comment. I invite you to contact me with any comments that you would like presented to the Committee.
I intend to be in attendance at all meetings. At the previous meeting on 21 May 2010 I was joined by Robert Monday of PACE, Jason Cannon and Randy Conrad both of Indiana Shared Parenting which is a companion group to Indiana Custodial Rights Advocates.
The Committee is made up of members Craig Bobay, Francis G Hill, Karen M Love, Sheryl L Lynch, Lynn Murray, Nanette K Raduenz, Frederick A Schurger, Deborah 'Debbie' J Shook, Richard R Stalbrink, Dean A Young, William C Fee.
Members of the public are invited to attend the meetings which usually take about five hours. Please watch for future posts about upcoming meetings.
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