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.


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. 

"Divorce Corp....The Divorce Industry Exposed"

When getting divorced, it is important to make a strong effort to separate the business transaction of getting divorced from the emotional journey of grieving the death of a relationship.  When you allow the emotion of the death of the relationship to cloud the business transaction, it can end up costing both sides tens of thousands of dollars.  In Indiana, you can get divorced without ever stepping into a court room.  Getting divorced can take a mere 61 days and less than $2,000 in attorney's fees when completed amicably.  If you are considering divorce and want to avoid spending tens of thousands of dollars in attorneys' fees, seek out a collaborative divorce professional or a mediator. 

Travel Soccer and Modification of Parenting Time

A teenager's hectic travel soccer schedule is not grounds to modify a previously entered parenting time plan.  The Indiana Court of Appeals found that time spent with the non-custodial parent was more important than a high school student's travel soccer aspirations and that the custodial parent erred in enrolling the teenager in such a rigorous year-long program without consideration of the current parenting time plan.  
In Re: the Marriage of L.C. v. T.M. 32A01-1303-DR-91. 

Same-sex Couples and Parental Rights

A former partner of a same-sex couple was granted standing to seek visitation of the child the couple contracted to raise together.  While the Indiana Court of Appeals stopped short of granting the former partner parental rights of any type, it recognized the need for the child to maintain a relationship with both "mothers." In its decision, the Court remind the parties and the public that it is only charged with interpreting law -- not legislating from the bench.  The Court went on to plead with the Indiana legislature to draft laws which address the diversity of modern families so that the Courts have a consistent road map to follow in discerning the best interests of the children stuck in the throes of custody battles within unique families.  A.C. v. N.J. 20A04-1301-DR-37 

Adultery and Inheritance

According to a recent Court of Appeals decision, a cheating spouse who leaves the marital home to pursue an extramarital affair loses his or her right to inherit assets and property owned by the spouse left behind. Conversely, in the context of divorce, the division of marital assets is generally not affected by whether or not a spouse commits adultery or otherwise behaves poorly. In other words, if you decide to commit adultery and move in with your new partner and then your spouse dies while you are living with your new partner; anything owned by your spouse will be passed to your spouse's heirs -- NOT you.

In short, if you have decided to co-habitat with someone other than your spouse, and you have not yet filed for divorce, you may want to consider getting that done.