RESTRICTIONS ON SPEECH TO CHILDREN

What restrictions are permitted upon what the other parent says to the child(ren)?

A very common inclusion in a custody order is what is referred to as a “non-disparagement clause.” These clauses restrain either parent from making disparaging remarks about the other parent in front of or to the child. Non-disparagement clauses are permitted because there is a compelling State interest in protecting the best interests of the children within that state. However, this compelling State interest is not absolute.

In a recent Indiana Court of Appeals case, a non-disparagement clause prohibited either parent from disparaging the other parent in front of “anyone,” whether in the presence of the child or not. The Court of Appeals found the portion of the non-disparagement clause which prohibited disparaging remarks in the presence of the child should be upheld, but the portion prohibiting disparagement in front of “friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone” should be stricken. Israel v. Israel (189 N.E.3d 170, Ind. Ct. App. 2022).

In another recent Indiana Court of Appeals case, a mother was awarded sole legal custody of her child based on a change in circumstances with respect to religion. Specifically, the trial court found the child had made an independent and well-reasoned decision about her faith and found an award of sole legal custody to mother would allow the child to pursue and express her faith. The trial court further ordered Father was not permitted to discuss religion with the child. Father argued his First Amendment rights were violated by the trial court’s order. The Court of Appeals agreed and found the trial court’s order was an impermissible restriction on his freedom of speech.

These cases demonstrate the State’s compelling interest in the best interests of the child(ren) is not limitless. Restrictions on free speech still must be appropriately tailored to a compelling State interest. A restriction to free speech must not be overbroad.

If you have questions or concerns about restrictions on the freedom of speech within the context of a divorce or paternity action, contact our office and ask for a consultation with Attorney Abby Schneller.

ESTABLISHING PATERNITY IN A DECEASED FATHER

How urgent is it to establish paternity once the child’s alleged father passes away?

Once a child’s alleged father passes away, paternity must be established not later than five months after his death, according to IC 31-14-5-5.

Establishing paternity through the court is important even if the father is no longer living. Without establishing paternity, the child will not be able to access inheritance, social security benefits, life insurance benefits, and any benefits from pension or retirement accounts they may be entitled to receive as a natural child of the deceased individual. In addition, the deceased individual’s parents are unable to seek grandparent visitation rights through the court without his paternity established.  

Though the months after an individual passing away can be an overwhelming time, it is crucial to ensure paternity has been formally established within the five-month limit. If you have questions about establishing paternity after the death of the alleged father, contact our office and ask for a consultation with Attorney Abby Schneller.

TRACKING DEVICES

The Indiana General Assembly has completed the 2023 Legislative Session. One of the bills which passed is Senate Bill 161, which provides for some new penalties for using a tracking device. With the passing of this bill, courts can now prohibit the use of tracking devices as part of an order for protection. Further, a person who knowingly or intentionally places a tracking device on an individual or an individual’s property without the individual’s knowledge or consent now commits a Class A misdemeanor, with a few exceptions. If the person who placed the tracking device is the subject of a protective order or has certain prior convictions, the penalty is increased to a Level 6 felony.

With the increased popularity of tracking devices such as Apple Airtags, it is important to be aware of the possible consequences of using such devices. If you have questions about the use of a tracking device in a family law context, reach out to our office and ask for a consultation with Attorney Abby Schneller.

RECORDING CONVERSATIONS BETWEEN YOUR CHILD AND THEIR OTHER PARENT

When can a parent record a conversation between the child and the other parent?

The Indiana Wiretap Act prohibits individuals from “intercepting” communications. Under the Indiana Wiretap Act, an “interception” is the intentional recording or acquisition of the contents of a telephonic or telegraphic communication by a person other than a sender or receiver of that communication without the consent of the sender or receiver. A recording is not an interception if it is done with the consent of the sender or receiver of the communication.

In Apter v. Ross, 781 N.E.2d 744 (Ind. Ct. App. 2003), the Indiana Court of Appeals ruled a recording a father made between his child and the child’s mother was not an interception. The Court of Appeals concluded a parent has the power to consent on behalf of his or her minor child to the recording of that child’s phone conversations unless otherwise curtailed in some legal proceeding. In this case, the father had a duty to consult with the mother prior to making any major decisions regarding the children, but the Court of Appeals held this consultation requirement did not apply when the father’s decision to record the conversation was motivated out of concern for his daughter’s welfare.

On January 1, 2022, the updated Indiana Parenting Time Guidelines went into effect. The Guidelines were updated to include, among many other provisions, a provision which discourages parents from recording conversations the child has with the other parent. In general, communications between the child and the other parent should only be recorded if absolutely necessary out of concern for the child’s welfare, and for no other reason. If you have questions about whether you should record your child’s communications with their other parent, or whether a recording you’ve already made is a violation of the Indiana Wiretap Act, contact our office and ask for a consultation with Attorney Abby Schneller.

Consent and Communication in Stepparent Adoptions

When is the biological parent’s consent not needed for a stepparent adoption?

The consent of both biological parents is required for an adoption of a child (IC 31-19-9-1(a)), with some exceptions (IC 31-19-9-8). One of the most common arguments for the consent of a biological parent to not be required is the parent has failed without justifiable cause to communicate significantly with the child when able to do so.

What does this mean exactly?

The Indiana Court of Appeals recently gave insight as to what does and does not qualify as “without justifiable cause” in In re I.B., 185 N.E.3d 428 (Ind. Ct. App. 2022). In this case, a child was born out of wedlock in 2009. The biological father’s paternity of the child was established in January 2010. The biological father (hereinafter referred to as “Father”) was granted parenting time with the child, which continued until 2017.

In April 2017, Father’s parenting time was reduced to exclude overnights, and he was required to “submit to an anger/psychological parenting time assessment and follow all recommendations.” Father’s parenting time was further limited to supervised visits only in July 2017, and he was ordered to submit to a hair follicle test. In July 2018, Father’s parenting time was suspended due to non-compliance with the anger management and drug screen. It was never reinstated.

The child’s stepfather (hereinafter “Stepfather”) filed a petition to adopt in August 2019. Stepfather and the child’s mother (hereinafter “Mother”) argued Father’s consent was not necessary due to failure to significantly communicate with the child for one year prior to the filing of the adoption petition. However, Father testified and presented evidence at the hearing he sent multiple text messages asking to speak to the child from July 2018 through June 2019, as well as attempted to call, but was sent straight to voicemail. Mother never responded to the messages nor returned any calls because the child “did not want to talk to her father.” Mother and Stepfather also relocated in July 2019 without filing a Notice of Intent to Relocate and testified she did not tell Father her new address because she was frightened of him knowing where she lived. The trial court granted Stepfather’s petition and determined Father’s consent was not necessary, but the Court of Appeals reversed.

The Court of Appeals found the trial court erred when it determined Father had failed without justifiable cause to communicate significantly with the child for at least one year. They found Mother did not take reasonable steps to encourage communication between Father and the child.

If you plan to file a petition for stepparent adoption and want to argue the other parent’s consent is unnecessary because they have failed to communicate significantly with the child for at least a year, consider whether you have unreasonably restricted communication in any way. The other parent should know where the child lives, how to contact the child, and be allowed to contact the child freely. If you have questions about filing a petition for stepparent adoption, contact our office and ask for a consultation with Attorney Abby Schneller.

Slow it down, DCS......

The Indiana Court of Appeals recently reminded the Department of Child Services (DCS) of the limits of DCS authority. Justice Baker admonished DCS in case where the father tested positive for drugs, but there was no evidence the father used drugs or was under the influence of drugs around the children: "The mere fact of an unemployed parent does make a Child in Need of Services (CHINS). The mere fact of a family on food stamps does not make a CHINS. Even the mere fact of a family living in a shelter while seeking stable housing does not make a CHINS.....The record is wholly devoid of a single example of the children's needs going unmet.....We are well aware that DCS and the courts are overwhelmed with the growing numbers of CHINS cases statewide. All would be better served if the system focused its time, efforts, and resources on the families who really need them. This one did not." In the Matter of S.M., J.M., A.M., H.G., Children in need of Services v. The Indiana Department of Child Services, 49A02-1505-JC-377

College Expenses Post-Divorce

It surprises many parents to learn that, as long as you stay out of the courts, there is no law requiring parents to fund their child's college education. However, once parents enlist the assistance of the courts in either a dissolution case or a paternity case, the court in some states is then granted the authority to order one or both parents to assist in the payment of a child's college education. The laws vary from state to state as to what a court may order a parent to pay toward college education.  For example, in Georgia, no court can order any obligation for any type of support (college or otherwise) after the child reaches the age of 18 years of age, but, in Illinois, the court has discretion to order parents to pay for college education and support the child while obtaining said education.  Things become rather sticky when parents are divorced in one state and then move to another. Recently, the Appellate Court of Illinois was faced with a scenario in which the parents divorced in Georgia and then relocated to Illinois after the dissolution.  The Illinois trial court applied Illinois law and ordered the parents to pay for the child's college education, but the Appellate Court of Illinois reversed the Illinois trial court - finding that the laws of the state in which the original dissolution occurred must control the issue of support for college education pursuant to the Uniform Interstate Family Support Act. In short, if you live in Indiana or Illinois and have a child from a broken relationship, be aware that the courts can be involved in your finances long after your child turns 18. In re the Marriage of Jones, 2016 IL App (3d) 150237.

Your child can be adopted without your consent.......

If you are man in Illinois or Indiana, and you think you have fathered a child out of wedlock, it is critical that you register with the putative father registry or establish paternity immediately after the child's birth in order to prevent the child from being adopted without your consent. Even if you and the mother are "getting along," in order to ensure decisions are not made without your consent, you must either register as the putative father or legally establish paternity within very specific timeframes after the child's birth.  

Obergefell v. Hodgeswhich - Supreme Court Oral Argument on Same Sex Marriage

Today, the United States Supreme Court will hear oral arguments in Obergefell v. Hodgeswhich -- will hopefully conclusively decide, nationwide, whether: 1) The Fourteenth Amendment requires a state to license a marriage between two people of the same sex; AND 2) the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? Currently, the laws vary from state to state which can create a lot of complication when folks move around. Regardless of the outcome, history is in the making today!  

Annoying Behavior Does Not a Commitment Make

Recently, a Marine Corps veteran was held against his will for almost two weeks. After over a year of protesting his involuntary confinement, the Indiana Supreme Court has affirmed his involuntary confinement could have only occurred if clear and convincing evidence established him as either dangerous or gravely ill. Simply annoying those around you when you are otherwise holding down a job and supporting yourself is not enough for involuntary confinement, the Court found, "...loud, boisterous, and rude public behavior harmed his reputation and made others not want to be around him.  That is not sufficient evidence to support a civil commitment on grounds of grave disability."  In the Matter of the Civil Commitment of T.K. v. Dep't of Veterans Affairs, 49S02-1503-MH-138

Incarcerated Father's have Rights to their Children too..........

The Indiana Court of Appeals stood up for an incarcerated father's rights in a recent adoption appeal. The father was incarcerated for delivering a lethal dose of pain medication to the child's mother (who was suffering from Crohn's disease). While incarcerated, the maternal grandparents filed a petition to adopt the child. The incarcerated father asked for a court-appointed attorney to fight the adoption petition, but the court ignored his request and granted the maternal grandparents' adoption. The Indiana Court of Appeals reversed the adoption due to the trial court's failure to appoint an attorney and follow the adoption statutes. This case once again underlies how critical it is to precisely follow the adoption statutes in order to avoid an overturned adoption and tumult for the children.

Family Law Drama Costs Walgreens $1.8 million

A disgruntled ex-boyfriend seeking to embarrass and gain leverage against his Crown Point ex-girlfriend (Plaintiff) convinced his new girlfriend (Pharmacist) to access the Plaintiff's prescription records. After gaining information pertaining to the Plaintiff's treatment for sexually transmitted disease and birth control use, the ex-boyfriend shared that information with the Plaintiff's current boyfriend and others.  Due to the invasion of privacy and HIPPA violations, Walgreens was fined $1.8 million under the theory of respondeat superior.  (Respondeat superior holds employers responsible for the actions of their employees.)  

.......just another example of the high cost of unhealthy conflict for not only families, but society as a whole.  

The cost of "being right"

Too often parents become engulfed in the need to be "right," to prove the other parent is a "liar," or to vindicate past wrongs on the public record.  Sometimes being "right" is not worth the cost to the children.  Divorce doesn't harm children -- conflict does. So, while there are many attorneys who are willing to take your money to prove for the public record that you are "right" about the fact that your ex-spouse was fifteen minutes late for the last three weeks, before picking up the phone to start that battle, consider just letting it go.  

Finality of Divorce Property Settlements

While child support orders may be modified every 12 months, Property Settlements in a divorce are usually permanent unless the party wishing to modify the Property Settlement can prove fraud, duress, or mistake happened at the time the Property Settlement was originally created.  

However, on September 9th, the Indiana Supreme Court held that if there is language like, "unless otherwise agreed by the parties," or "unless otherwise ordered by the court," in the Property Settlement, it CAN, in fact, later be modified if there has been a substantial and continuing change in circumstances for one of the parties.  (Pohl v. Pohl)  

In short, when getting divorced, pay close attention to where you are permitting the magic words "unless otherwise agreed" and "unless otherwise ordered" to be used in your Property Settlement if you want to ensure true finality.

Supreme Court and Same-Sex Marriage in Indiana

As a direct result of the United State's Supreme Court's way of handling the cases now before it pertaining to same-sex marriage, same-sex marriages can now once again occur in Indiana.  Please remember to strongly consider a prenuptial agreement before rushing to the courthouse.  

 

http://www.scotusblog.com/2014/10/many-more-same-sex-marriages-soon-but-where/#more-218576

 

Prenups Protect In Death

Prenups are always a good idea, but many folks do not realize that prenups do more than protect you in the event of a divorce: they also protect your wishes in the event of your death.  There are statutes which permit your spouse to take a certain amount of your assets in the event of your death regardless of what your will says (if you even have a will).  If you want to ensure your wishes govern the disposition of your assets after your death instead of a statute, you and your fiance must execute a prenup.  This is especially important to consider if you are entering into a second marriage and want to ensure the bulk of your assets are saved for your children.

Beware the Public Record

Many folks are surprised to discover that Indiana divorce cases and the custody battles stemming from those divorce cases are public record and, in some counties, available online. Due to changes in the law, effective July 1, 2014, all Indiana paternity cases will also become public record. So, each time you consider allowing your lawyer to file a motion with the court that discloses something private about your home or your child's experiences, keep in mind that your neighbor, your employer, and your child's future friends and family may see it. 

Dividing assets and debts during divorce.

In Indiana, all of the marital assets and debts are generally equally divided in the event of divorce.  However, the court hearing your case has discretion to deviate from the presumed 50/50 split if any of the following are true:  (1) one spouse dissipated/wasted assets during the marriage; (2) one spouse has significantly more earning potential or education than the other; (3) one spouse brought significantly more property into the marriage than the other; or (4) one spouse has assets which were inherited or gifted specifically to him or her.  Having one of the foregoing factors does not give a spouse the "right" to more than half of the marital assets, but it does provide the opportunity to argue for a deviation from that presumption.  

 

"I'll just have him 'sign his rights away'.......!"

Contrary to popular belief, there is no such thing as arbitrarily having a parent "sign his or her rights away" in Indiana.  Parental rights can only be terminated if either: (1)another individual is prepared to adopt the child; or (2)the parent whose rights are to be terminated is deemed unfit in some way.  Whenever possible, the State of Indiana wants each child to always have two legal sources of support and two sources of inheritance.  In short, even if you have a one night stand and do not want the other parent involved in the resulting child, you cannot simply agree to have the one-night-stand sign his rights away and waive child support.  www.rebeccabillick.com