Articles Posted in Indiana Child Custody

It’s been 14 years since the U.S. Supreme Court’s watershed ruling in a grandparent visitation dispute. In the years since, Indiana courts have still struggled to strike a balance between parental rights and the strong desire of grandparents to be a part of the children’s lives.

Indiana Code 31-17-5 details the circumstances under which a grandparent may seek visitation of a child. Primarily, these circumstances are when the child’s parent has died, the child’s parents are divorced or the child was born out of wedlock. The court does not permit paternal grandparent visitation where the child was born out of wedlock and paternity has not been established.

Our Gary child custody lawyers know that above all, the court is going to weigh the best interests of the child. Still, the U.S. Supreme Court’s 2000 decision in Troxel v. Granville is considered guiding. Although at the time, many state courts were broadening the rights of grandparents to see their grandchildren, the Troxel case shifted the direction. There, the supreme court held that a Washington state law allowing “any person” to petition a family court for visitation rights was unconstitutional, as it violated a parent’s 14th Amendment rights, interfering with a fit parent’s right to raise their children as they deem best. The state, the court held, has no grounds to question the parent’s decisions in raising those children.
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Modification of child custody orders in Indiana, as well as in many other states, typically requires evidence of some material change in circumstances. That is, something is substantially different to such an extent that reconsideration of the previous order is necessary.

Gary child custody attorneys know that some general examples of a material change include:

  • The changing needs of the child;
  • Whether a parent has properly overseen the child’s physical, social and educational development;
  • Whether a parent has the ability or inability to care for, supervise and spend time with the child;
  • Whether a parent has the financial means and capacity to provide for the child;
  • Whether a parent has decided or must move to a new, much farther location.

These could involve things like moral misconduct, interference with the child’s relationship with the other parent or conviction of a crime.
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Termination of parental rights is something the Indiana family courts take very seriously. Such proceedings will only be initiated if the either the parent losing the rights consents or the court deems the action to be in the child’s best interests.

Cases of direct abuse or neglect are some of the most obvious reasons, but another common reason termination would be requested would be if a stepparent wishes to initiate a formal adoption of the child. This cannot be done without first terminating the other parent’s parental rights.

Our Highland adoption attorneys recognize there are many sound reasons why stepparents and their marriage partners would want to do this. In many cases, it’s simply making legal what is already the reality. To start, it may give every child in the household equal status. It’s a demonstration of not only affection, but commitment. Beyond that, the stepparent may want to solidify his or her legal relationship to the child, should the biological parent die or become incompetent.
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When it comes to issues of child custody in Indiana, the best interests of the child are going to be viewed as a higher priority than any other argument presented.

Part of ensuring that the child’s interests are protected is ensuring that each parent involved in litigation is given due process so that he or she may effectively present their case. Ensuring that those due process laws are followed will be the job of the attorney you hire to represent you, so it’s imperative that you choose wisely.

In a recent case out of St. Joseph County, Wilson v. Myers, the Indiana Supreme Court found that a trial court had abused its discretion in modifying a physical custody order for two children absent an evidentiary hearing.
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Family law court judges in Indiana work hard to establish balanced child custody and visitation schedules that are fair to both parents and in the best interest of the child.

It’s not uncommon, however, that an agreement that worked at the outset of the separation or divorce is no longer sustainable or acceptable for one reason or another. This is referred to as a material change in circumstance. Of course, that’s life, and for this reason, it’s common for parents to at some point request that the court revisit the issue of child custody and visitation, also formally known as parenting time.

Indiana parenting time guidelines were recently updated in March and again in August of this year. The arena of family law is one that is always evolving, and the family law case of Moix v. Moix, recently heard by the state supreme court in Arkansas, deftly illustrates this issue.
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Calling the practice “repugnant and contrary to public policy,” the Indiana Supreme Court has ruled that for parents to negotiate lesser parenting time with their children as a means of reducing child support obligations is not legal.As such, our Hammond child custody lawyers understand that the court has instructed family law attorneys to refuse to be a part of such discussions and further to advise clients that engaging in such talks is “unacceptable.”

The court further ruled in this case, Perkinson v. Perkinson that the trial court had abused its discretion by prohibiting the father from exercising any parenting time with his child and further providing no means whatsoever by which he could earn parenting time.

This kind of strong language is rare for the state’s highest court, which handed down a unanimous 5-0 decision in the case. The ruling stems from a 2006 divorce case in which the father was required to give up all parenting time with his child in exchange for the mother assuming sole financial responsibility for the child.

While the initial divorce dissolution agreement was something to which the father had consented, he later attempted to change the arrangement and get time with his child. However, per the terms of the agreement, he was repeatedly denied by the county court.

The Supreme Court ruled that the issues of parenting time and child support are to be decided separately. One should not rely on the other. Rare are the cases, the court said, where the best interest of the child will involve eliminating the parenting time of either parent.

In reaching its conclusion, the court cited the U.S. Supreme Court case of Troxel v. Granville, which held that the right of both parents to be involved in the upbringing of their child is historically and fundamentally imperative and should not be infringed upon except in the most extreme circumstances.

In its discussion regarding this tactic of “contracting away” parenting time rights, the court said that one parent would give up his or her right to parent their own child in lieu of not paying child support is “incomprehensible.” In fact, to do so is directly contrary to the state’s public policy of protecting the welfare of children, which assumes that children have the right to, at the very least, be financially supported by both parents. The court can’t force a parent to spend time with his child, but it can hold him accountable to pay for the child’s needs. For the custodial parent to contract away those financial benefits is a violation of that parent’s fiduciary duty to the child.

Further, the court found that obligating the father to pay an arrearage if he later sought to spend time with his child only serves to discourage development of the parent-child bond. That’s why the two issues have to remain separate, a point well-established in the 2000 Farmer v. Farmer case.

The only case in which parenting time should be restricted, the court ruled, is when failure to do so would endanger the child’s physical health or emotional development.
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In a state that fails to sanction or recognize homosexual marriages, child custody cases can prove an uphill battle.The case of one Muncie mother, chronicled recently in USA Today, was no different.

In the end, though, she was successful, and our Hammond child custody lawyers want you to be confident that such outcomes are attainable – assuming you have a good attorney and you’re dedicated to putting up a fight.

The subject of the southern Indiana case is author Angela Eden, who recently penned the book, “If You Were Me: The Memoir of a Mother Torn Between What’s Right and What’s Easy.” The book takes the reader through the author’s history, which, like so many others, involves a long period spent burying the secrets of her sexuality and remaining in the closet, door firmly closed. She married a man and had children.

But in the end, her sexuality was something she ultimately couldn’t deny. She filed for divorce. Subsequently, she met, fell in love and moved in with a woman.

Her ex-husband then sought to modify custody orders by suing for sole custody of the children, demanding that they be removed immediately from her home on the basis that she was a lesbian. The husband argued that the living arrangement was harmful for the two children because they weren’t married. Of course, under Indiana law, they could not marry, and even if they did so in another state, Indiana courts wouldn’t recognize the union.

Even her lawyer doubted whether she would be successful in getting custody. His best advise, he said, was to ask her partner to move out of their home.

The primary issue in the case was not whether she was a fit mother, but focused instead on her sexuality. Her own sister testified against her, telling her in open court that she would burn in hell for her sins.

It wasn’t until a case worker completed a months-long, neutral home study that Eden’s case got a break. The case worker highlighted all of the attributes that made her a good mother, and then underscored the fact that homosexuality shouldn’t be a factor in child custody cases. She underlined that last part.

It was on this basis that the judge awarded her custody.

Of course, it’s not a decision that everyone agrees with. But it’s in the favor of homosexual couples that societal perceptions are shifting rapidly. A recent article in the Washington Post detailed how gay parenting has normalized the idea of gay marriage, particularly among younger generations.

Of course, courts aren’t always on the cutting edge of societal norms, which is why homosexual parents will continue to require a strong advocate in these custody cases.

Encouragingly, Indiana has been more progressive than others, at least historically. The Indiana Court of Appeals ruled way back in 1981 that homosexuality alone is not cause to find a parent unfit. Thirteen years later, that same court rejected restrictions proposed on the activities of a lesbian mother and her partner. And then in 2002, the same court overturned a measure that would have prohibited unrelated, same-sex individuals from staying overnight in the custodial parent’s home.

These cases set a strong precedent.
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A recent story in London’s The Telegraph detailed how the rise of internet dating had resulted in a 40 percent spike in 2012 in the number of international child custody cases in Britain.Our Gary child custody lawyers have noted this phenomenon as well, though more commonly with regard to interstate disputes.

Internet dating has allowed people who might never have otherwise met or come in contact to form deep connections over long distances. However, people often retain their connections to home, even if they end up later moving to be with their new spouse.

If things don’t work out, one spouse or the other will often return to where he or she has a support system.

But it should be no surprise that different states have different laws when it comes to almost everything about divorce and child custody.

Families in these situations often find themselves grappling with the added frustration of working out complicated and costly visitations and shared parenting arrangements. Even those divorced couples who consider themselves fairly amicable can find themselves at a breaking point when trying to hammer out these issues long-distance and often without the benefit of face-to-face communication.

So how are these disputes resolved?

A lot of it will depend on which state is given jurisdiction in the matter.

For an answer to how that process works, we look to the Uniform Child Custody Jurisdiction Act, which was drafted in 1997 and has since been adopted by 49 states, as well as the District of Columbia, the U.S. Virgin Islands and Guam. (The only state that has yet to adopt the measure is Massachusetts.) The 1997 legislation replaces any prior legislation, which was found to be inconsistent with the Parental Kidnapping Prevention Act with regard to determination of initial child custody.

Part of the reason this legislation was enacted was because courts were finding that parents were willing to move their child around from state-to-state if it appeared the custody case were not going in their favor. They would then file again in a different state, where they hoped to find a more sympathetic ear. They were often successful.

But this was not fair to the child, nor the other parent or the court system, which was being bogged down with these cases.

In interstate custody battles, the child’s home state will be the one that will be allowed to exercise jurisdiction in the child custody case.

So if a mother files her petition for custody in Indiana, where the child lives at the time of the petition, any other state is going to lack jurisdiction to handle that same case. Let’s say that same mother and child move to Ohio, and then she files her petition within less than six months of that move. The home state is still going to be considered Indiana, and she will have to file her petition here, or else wait six months or more.

Because of the UCCJA, this will be true pretty much regardless of where you move in the U.S.

In one case, for example, both spouses lived in Texas for a number of years until the mother moved to Washington State. She filed her child custody petition there five months later, but it was denied because she hadn’t lived there at least six months. The father then filed his custody petition more than six months after his wife and child had moved to Washington. The court ruled that Texas would not be considered the home state of the child at that point, because he hadn’t lived in Texas for six consecutive months prior to the petition.

As you can see, timing may be critical in these cases, which is why the sooner you meet with a child custody lawyer, the more strategic you can be in planning your petition and/or response.

It’s also worth noting that the state can deny jurisdiction if one parent or the other has acted unjustly. Some examples might be domestic violence, concealing the whereabouts of a child/parental kidnapping, violating an existing court order or lying in sworn declarations.

Now let’s say it turns out there is no home state for the child. He or she has lived on a military base or has moved around a great deal in the last several years. In these cases, the court will be charged with determining the state that will be the most convenient for all parties involved. Some of the things that might be considered would be location of medical and school records, witnesses, documents, child protective services investigative reports and how familiar each court may be with the issues and facts in the pending case.
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A bill was recently proposed in the Alabama legislature that would allow the state to terminate parental rights in cases where a parent, addicted to drugs or alcohol, had relapsed after receiving a second round of in-patient treatment.Our Munster child custody lawyers know that if this law were to pass, while it wouldn’t affect Indiana families directly, it could set a troubling precedent.

This is not to say that the state does not have a valid interest in protecting the children from harm caused by a drug-addicted parent. Indeed, it does. However, both in Indiana and in Alabama, there are legal provisions that allow either the other parent or the state to step in and seek remedies – up to and including termination of parental rights. Capping treatment options is not the solution.

While we understand the framers of the bill had intended to draw the line when it comes to protecting our children and saying, “Enough is enough,” it may actually end up resulting in fewer parents seeking much-needed treatment, for fear they may lose their children if they falter one more time.

That being said, we have represented numerous clients who were at their wits’ end with the seemingly endless cycle of addiction of their former spouse. In many cases, that was what led to divorce in the first place.

In cases like this, one of the first things we might seek to do is file for emergency child custody. This won’t be a permanent order, but it will allow you to keep your child safe while the courts have an opportunity to sort through all the details of what is being alleged.

Your first step in a case like this, in which you fear for your child’s safety due to your ex’s addiction, would be to contact an experienced family law attorney. He or she can help you file the petition, which will allow you to get an immediate hearing, as it is considered an emergency. Your lawyer may also at the same time submit a form requesting a more permanent custody arrangement be addressed at a later date. This will allow you to pursue the long-term custody arrangement, whether the court grants the temporary order or not.

With the understanding that these situations sometimes unfold rapidly, you still want to try to be as prepared as possible. Bring any relevant police reports, voice mail recordings, text messages, e-mails or photographs that could serve to further bolster your case. Specific examples might be reports of a DUI or drug-related arrest or previous convictions, photographs of drugs or paraphernalia in the home or statements from third party witnesses attesting to the severity of the other parent’s addiction and the danger it poses to the child.

Termination of parental rights in Indiana is altogether another matter, but it is one that may be initiated in the most severe of circumstances. Some potential circumstances in which termination of rights is considered by the court:

  • The child has been living in an alternative care situation (foster care or with a relative) for at least six months;
  • The parent has been convicted of a series crime (i.e., murder, manslaughter, rape, sexual misconduct, etc.) and the victim was either under the age of 16 or the child named in the petition;
  • There is a reasonable probability that either the problems that led to the child’s removal from the home won’t be remedied or the child’s continued relationship with the parent poses a harm to his or her well-being;
  • Termination of rights is in the child’s best interest;
  • There is a satisfactory plan for care and treatment of the child following the termination of rights.

Courts in Indiana take child custody loss and parental rights termination very seriously. If you need legal assistance in either of these matters, contact us today.
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Indiana’s new parenting time guidelines place a high priority on communication, cooperation and civility between parents, for the sake of the child.However, our Munster child custody lawyers know that this kind of relationship isn’t always possible. Even if one parent strives to meet this standard, it really takes both people to ensure success.

Unfortunately, some people are burdened with toxic anger and bitterness, or they simply can’t let go. It ends up spilling into their relationship with their co-parent, or sometimes the co-parent is the direct aim. Sadly, the people this ends up hurting the most are the children.

It’s that kind of long-term psychological damage that the high court is hoping to avoid with its new parallel parenting plan, tailored specifically for parents it deems to be “high conflict.”

There aren’t hard-and-fast rules when it comes to the definition, but generally speaking, the court will label two parents as high conflict when:

  • They argue constantly in front of the children;
  • They often lay blame for their problems with the other parent;
  • They make negative comments about one another to the children.
  • There is a high level of mistrust and anger between parents;
  • They can’t communicate or cooperate with one another about the child;
  • There is a pattern of ongoing litigation.

The courts approach these cases with the understanding that to let these situations drag on is going to cause the children to potentially develop emotional and behavioral problems. Many of these kids live in fear, they have low self-esteem and they come to believe they are somehow to blame.

In cases where one parent is the primary aggressor in this, the court specifically notes that such behavior “should not be rewarded by limiting the parenting time of the other parent.”

The court recognizes that in most cases, a joint custody arrangement is preferable. But it’s not realistic in parallel parenting cases. In most of these cases, we’ll be dealing with a sole legal custody arrangement.

The main idea of parallel parenting is that each parent has a responsibility to provide for both the physical and emotional needs of the children and both are important to the child. Each parent must respect the other’s important role in their child’s life, even if they don’t necessarily respect the parent personally. The needs of the child have to come first.

So the arrangement is that while one parent is “on-duty,” the other parent is “off-duty.” Whoever is on-duty is solely responsible for care and control of the child during that time. This limits the amount of contact the two will have with one another, except in cases of emergencies. The court specifically prohibits one parent from denying the other his or her time with the child due to:

  • A minor illness;
  • The child’s hesitation or refusal;
  • The child has somewhere else to be;
  • The child isn’t home;
  • The noncustodial parent’s lack of support payments;
  • The custodial parent not wanting the child to go;
  • Bad weather;
  • Lack of clothing to wear;
  • The other parent failing on other preconditions.

Parallel parenting agreements must be reviewed by the court every 180 days.
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