As of July 1, 2006, a parent with custody or court-approved parenting time with a minor has to first file a notice with the court and send a copy to give notice to the other parent. The court may then choose – or the other parent may request – a hearing to determine whether there should be a change in existing child custody, visitation, or support. If the other parent has parenting time or is trying to obtain it, they must be afforded a copy of this required notice to the court.

The court can’t refuse to give you permission to move. However, it could refuse to allow you to take your child with you, or it could substantially alter the existing custody, visitation, or support orders if you go through with the move. The court is generally going to consider:

• Distance of the move;
• Difficulty for the other parent to exercise parenting time after the move;
• Whether the parent-child relationship can be preserved after the move;
• Whether there is a pattern of trying to support or deny contact between the child and the other parent;
• Reasons for the move;
• Reasons the other parent opposes the move.

In the end, the court will always consider what is in the best interests of the child.more

An experienced Hammond custody attorney can properly file the notice and argue your position if a hearing is set.

A situation where this issue previously arose was Wallerstedt v. Wallerstedt, before the Indiana Court of Appeals. Here, Mother and Father were married, had two children and then got divorced in 2004. At that time, Mother was awarded sole physical and legal custody of the children, while Father was awarded only supervised visitation, due to a protective order issued against him for domestic violence.

Four years after the divorce, Mother and Father reconciled. In the fall of 2010, Mother and her children moved from Indiana to Virginia, and the plan was that the father would follow after he completed his education. However, the parties’ relationship deteriorated and Father never made that move to Virginia. Ultimately, he remarried and had another child.

Then, in 2014, Father filed a petition with the court alleging parenting time contempt. That petition was dismissed a month later, but a new one was filed two months after that. The mother reluctantly returned to Indiana with the children and stayed with her mother’s family so that she could attend court hearings without driving back and forth from Virginia. Father filed a motion to modify custody and objected to Mother’s relocation to Virginia.

The trial court entered an order finding there was a substantial and continuing change (i.e., the mother’s relocation to Virginia) and that it was in the best interests of the children for Mother to live in Indiana and to grant joint legal custody to both parents, with Mother having primary physical custody. The court also made rulings with regard to the children’s schooling (mainly, that they should both attend public school, as opposed to home-schooling) and child support. Father was ordered to help pay for Mother’s relocation expenses.

Mother filed a notice to correct error, alleging Indiana’s relocation statutes aren’t applicable in this instance because the decision to move to Virginia was a joint one between the two and the father ultimately abandoned his family by not joining them. Also, Mother argued, he had not objected to the move for a full five years, which amounted to acquiescence to the move.

Relocation of a parent is governed by Indiana Code Chapter 31-17-2.2. However, Mother argued that because father acquiesced to relocation, he couldn’t challenge it now.

The Indiana Court of Appeals ruled that both parents failed to comply with relocation statutes. The mother should have filed a notice of relocation and the father should have objected earlier. However, the father in this case did acquiesce to the move. That meant that the child custody modification statute – not the relocation statute – applied. Ultimately, though, the court held that the trial court’s finding of significant distance between the children and their father, and the fact that there had been a substantial change in custody, was in the children’s best interests and not clearly erroneous.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Wallerstedt v. Wallerstedt, June 30, 2016, Indiana Court of Appeals

More Blog Entries:

Nolan v. Huff – Paramours Complicate Indiana Child Custody Cases, June 17, 2016, Hammond Child Custody Lawyer Blog

In cases where the intended move is extremely far away – across the country or overseas – both parents involved should consult with an Indiana child custody attorney because the ramifications of such a move can be major. The court cannot prohibit someone from moving, but it can restrict a parent from taking the child with them. And in the event you are the non-custodial parent, it’s important to consult with a lawyer if you wish to oppose an ex-spouse’s move or modify an existing custody arrangement. Failure to do so in a timely manner could complicate your case, and taking matters into your own hands could put you at a legal disadvantage.

Take the recent case of Martinez v. Cahue, an appeal before the U.S. Court of Appeals for the Seventh Circuit, which has jurisdiction over all of Indiana. This was a case involving an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division. According to court records, a young boy lived exclusively with his mother up until the age of seven, although his father lived nearby and saw him often. Mother and father had their own custody, visitation, and support arrangement, though it was never formalized by a court order. Then, when the boy turned seven, his mother moved to Mexico, her native country, and he went with her.more

About a year later, his father persuaded his mother to allow him to return to Illinois for a visit. However, after the agreed-upon time, the father refused to allow the boy to return to Mexico.

His mother then petitioned the federal court for his return under the Hague Convention on Civil Aspects of International Child Abduction, to which both the U.S. and Mexico are parties.

The district court found that the boy’s habitual residence should not be shifted to Mexico, and thus Illinois was the boy’s habitual residence. With that, the mother’s petition was dismissed. But on appeal, the justices found that the district court had asked the wrong question, and therefore reached an erroneous conclusion. The lower court had overlooked the fact that at all times relevant, the mother had sole custody of the boy under Illinois law, while the father had no right of custody under either state law or the Hague Convention. What that means is that it was only the mother’s intention that mattered, and in this case she intended for her son’s habitual residence to be in Mexico. This means the father’s decision to keep the child in Illinois against the mother’s wishes was wrongful and he was required to return him to his mother in Mexico.

This doesn’t mean the father has no right whatsoever to see the child. In fact, under the Hague Convention, he does have the right to visitation with his son. But the problem was that he went about exercising his right in the wrong way. Illinois law presumes that the mother of a child born out-of-wedlock has sole custody of that child, and absent a court-ordered visitation schedule she was not constrained by either state law or the Convention from taking her son to relocate wherever she wished. Joint custody isn’t something that arises automatically. It has to be granted by the court.

In this case, the court noted the father had conversations with a family law attorney and state department personnel at which point he became aware of his legal rights and remedies. However, he declined to pursue them and then took advantage of the mother’s good faith when she agreed to a visit. The court ruled that rewarding the father’s “self-help strategy” in this case would have a damaging effect on the intended deterrent of such action as laid out in the Convention.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Martinez v. Cahue, June 24, 2016, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Andrick v. Andrick – Indiana Child Custody Modification Order Affirmed in Part, Remanded in Part, May 20, 2016, Hammond Child Custody Lawyer Blog

This is not to say that Indiana child custody modifications are solely based upon a child’s wishes. In fact, courts have traditionally been hesitant to do so. However, they are an “important consideration,” per a recent decision of Andrick v. Andrick by the Indiana Court of Appeals.

Here, a father sought modification of a child custody agreement involving his teenage son, who was living with his ex-wife, her new fiance, and her fiance’s two children. Although the lower court denied the modification, the court of appeals remanded the case. While Father had requested reversal of the trial court’s ruling, the appellate court was “not prepared to go that far.” It noted there was evidence in the case that could arguably support a result in favor of the mother, but there were erroneous findings by the lower court on crucial issues. There were also repeated citation by the trial court of incorrect legal standards, and thus the appeals court lacked confidence in the accuracy of the lower court’s judgment.more

According to court records from this Indiana child custody case, the boy was born in 1999. Father is not his biological father, but he adopted him in 2004. He was with the boy’s mother for four years (married for two of those years) and their divorce was finalized in 2007. At that time, Father was given “reasonable” parenting time, but that increased substantially following a petition to modify in 2010. His overnight visitations increased to 150 nights a year.

Over the next few years, the child’s grades and school attendance slipped. There were a number of issues going on, first being his parents’ separation. Then, his grandfather (mother’s father) became seriously ill and his mother had to spend a significant amount of time caring for him. The boy also spent a great deal of time with his sick grandfather, which caused him to miss a lot of days in school. After his grandfather’s death, the boy’s mother moved in with another man who had two children the boy’s age. He reportedly fought a lot with one of them.

The boy began seeing a counselor at his father’s behest and told the counselor he wished to move in with his father. He told the counselor about a “loopy” friend of his mother’s who was often at the house and also mentioned the conflict with his mother’s fiance’s children (one of whom he would have non-physical fights with almost daily). A guardian ad litem noted that the home smelled like animal urine, which mother attributed to one of her fiance’s children not properly cleaning the cat litter, as was his responsibility. The guardian ad litem also noted mold in the basement of the house that made her sick.

The counselor diagnosed the boy with adjustment disorder, the onset of which occurred after his parents’ separation. Father sought another modification of custody, citing the boy’s desire to live with him.

But as the case wore on, the boy started to do better academically and expressed a desire to continue attending his current high school (which he would not be able to do while living with his father). The court conducted an in camera interview with the boy, but did not make the results of that interview part of the court record. Subsequently, the court denied Father’s motion for modification.

On appeal, Father took note of the fact that the trial court misstated a number of the guardian ad litem’s statements and mischaracterized the reports from the child’s counselor. Plus, there was evidence the child had more recently indicated a desire to live with his father, but that had been misstated by the court as well.

The appeals court remanded, finding that while modification may not be in order, it had concerns that the trial court had misstated several important facts in its decision.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Andrick v. Andrick , April 29, 2016, Indiana Court of Appeals

More Blog Entries:

Man Protests Child Support Order to Pay for Child Not His, April 13, 2016, Indiana Child Custody Lawyer Blog

Parents can choose to voluntarily terminate their parent-child relationship, but only when the action is initiated by the Department of Child Services or an adoption agency. Cases if involuntary termination are initiated by DCS. more

Success in these cases is going to depend on a myriad of factors, not the least of which is the dedication and skill of your Indiana family lawyer.

If a termination of parental rights is granted, the parent does have the option of appeal, and that’s what happened recently in In the Matter of Termination of the Parent-Child Relationship of K.R. and T.R. v. Indiana Department of Child Services.

According to court records, plaintiff/ mother has four children, two of whom are still minors. The youngest child was born in 2010. When the older children were young, DCS was involved with mother for various issues. When the youngest was born, the agency was notified when mother admitted to hospital staffers she used prescription pills and marijuana while pregnant.

When the child was 3-years-old, law enforcement reportedly responded the child was left unattended, strapped in the back seat of a vehicle in 80-degree weather for 35 minutes. Mother was arrested for felony neglect and custody of child went to a relative.

DCS launched investigation and found mother was using K2 spice around the time child was removed. However, mother denied needing drug treatment because she insisted she could quit whenever she chose.

While classifying the girl as a “child in need of services,” the agency did work on reunification. Mother lived with her brother and had no job. Her contact with DCS was irregular and the brother was arrested for methamphetamine possession after a search of the home.

Mother’s subsequent visitation with her daughter was characterized as “irregular,” at least partially because she was in and out of jail for alleged felony thefts and drug-related issues. She was locked up during the CHINS hearing and termination proceedings.

Mother was ordered to undergo mental health evaluation, have contact with her child, attend parenting classes and complete drug treatment.

However, she was sentenced to five years in prison on her pending charges, with two years suspended. She did complete a parenting class, faith based seminar and other programs, but she also had disciplinary issues. She was caught cheating in a literary class and was expelled from that and another program.

In total, mother was locked up for seven months and, over the objections of an appointed child advocate, the two saw each other four times.

Child had been outside her mother’s care for 22 months when a termination hearing was held. She conceded that she hadn’t taken advantage of DCS services, including drug treatment services, mental health evaluation or individual counseling.

The court terminated her parental rights and she appealed. She alleged trial court abused discretion by refusing a 23-day continuance of proceedings until she was released from lockup. She also argued the court erred in termination of rights based on conclusions that issues that led to child’s removal wouldn’t be remedied.

However, the appeals court affirmed, finding no abuse of discretion.

Courts in these cases do value due process for parents, but the primary interest will always be the best interest of the child or children involved. That means having a skilled attorney who is able to convince the family law judge of your commitment and present your actions and intentions in the most favorable light.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

In the Matter of Termination of the Parent-Child Relationship of K.R. and T.R. v. Indiana Department of Child Services., Dec. 31, 2015, Indiana Court of Appeals

More Blog Entries:

Stekr v. Beecham – Deviation from Child Support Guidelines, Oct. 25, 2015, Northwest Indiana Family Law Attorney Blog

This is true even when natural parents initiate an action to re-obtain custody of a child. In those situations, the burden of proof doesn’t automatically shift back to the parent. Instead, it’s always on the third party. Parents and third parties aren’t, as the courts have held, on a “level playing field” when it comes to custody. Parents will always have the upper hand.

However, this does not mean parents don’t lose these cases. In fact, it happens all the time and it’s often the result of being unprepared for hearings and trials – including failing to adhere to court recommendations and guidelines from previous hearings. more

A Hammond child custody attorney can help in these matters, whether it is guiding parents on the path toward regaining custody of their children, or helping third parties obtain or maintain custody where it is in the child’s best interests.

In the recent case of Nelson v. Nelson, before the Indiana Court of Appeals, a mother who signed over custody of her daughter to her mother and aunt sought to regain custody of the girl, now 8. However, the child’s grandmother and great-aunt argued the child would be better served remaining in their care. The court agreed, as did the Indiana Court of Appeals.

Mother pointed to the precedent set in the case of In re Guardianship of B.H., but the courts analyzed the totality of the circumstances in denying her request.

According to court records, the little girl was born in October 2006. At the time, her mother was unmarried and had a history of difficulty with drugs and the criminal justice system. The girl spent all but eight months of her life living with her maternal grandmother and great-aunt in adjoining apartments.

In 2012, when the girl was six-years-old, her grandmother and great-aunt filed for custody of the girl. At the final hearing, the girl’s mother testified she had no job, no earnings, no motor vehicle and a number of outstanding criminal issues, including a pending trial for possession of methamphetamine. The mother indicated she believed it was in the best interest of her daughter to be in the custody of her mother and aunt.

The girl’s father was neither present nor involved. Trial court grated that petition.

Fast-forward two years. The girls’ mother sought to terminate that custody order .She had since gotten married. She had twins. She was on probation for possession of methamphetamine, but she hadn’t tested positive for the drug. She completed substance abuse treatment. She got a job part-time at a hotel and was living in a one-bedroom apartment with her husband (not the father of the twins) and the babies. Her husband was also on probation for DUI.

Mother noted she had exercised her visitation with her daughter, which included nights and weekend visits every weekend or every other weekend.

Still, the girl’s grandmother and great-aunt did not agree with the mother’s assertion that it was in the girl’s best interest to be back in her custody. They believed the girl should stay with them.

Trial court denied mother’s petition, and appeals court affirmed. Ultimately, the courts found the third parties in this case proved the child’s best interests were substantially and significantly served by placement with them.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Nelson v. Nelson, Sept. 24, 2015, Indiana Court of Appeals

More Blog Entries:

Carie v. Carie – Division of Property and the “Marital Pot” in Indiana Divorce, Sept. 20, 2015, Hammond Child Custody Lawyer

Some of the major life changes that often precede divorce include:

• Illness
• Job changes
• Having children
• Living apart
• Trauma
• Becoming Empty-Nesters
• Infidelity

Take for example the issue of illness. A recent study published in the Journal of Health and Social Behavior revealed marriages were 6 percent more likely to end in divorce when the wife was diagnosed with a serious illness, as compared to unions in which the wife remained healthy. more The data analyzed some 2,700 marriages in which at least one partner was over the age of 50. Interestingly, the husband’s health – or lack thereof – did not impact whether the couple would divorce, though researchers were quick to point out that could be for a myriad of reasons.

Another catalyst often cited is change of job. A study conducted by The Ohio State University in 2011 found men who are unemployed or under-employed are more likely to leave their wives, and also more likely to be left by their wives. There could be a lot of reasons, but we all know stresses about money, uneven responsibilities and an overall missing sense of security can result in dissatisfaction in a marriage. It’s not just job loss, but a shift in anything that affects your schedules and finances may have a negative impact on the union.

Children too are another reason couples cite for their split. It’s important to note of course that it is never the fault of the child. Rather, it often stems from the irreconcilable differences that can arise from having children. A new baby is a great joy, but also a huge stress. If a couple – or half of the couple – is not prepared to take on the physical, emotional and financial challenges of a baby, it can put enormous strain on a marriage. The flip side of this of course is that some couples indicate children are the reason they stayed together perhaps much longer than they should have.

Another test many couples find challenging is living apart. This is a major issue for military families. A study conducted in 2013 by the RAND Corporation indicated the risk of divorce for military families was directly relative to the amount of time they had spent overseas. Not only are veterans of war having to cope with extended time away, but re-adjustment to civilian life can be incredibly difficult.

Meanwhile, those who choose to live apart for other reasons temporarily don’t fare quite as bad, mostly because they aren’t facing all the same kinds of problems. But such distance can certainly compound existing trust issues and highlight other underlying problems.

Our Hammond divorce attorneys recognize that because divorce often stems from significant challenges and is itself often a trauma, you need a trusted legal advocate who can help make vital decisions on issues like child custody, child support and division of assets. There are times when it’s best to launch an aggressive fight, and times where it’s best to compromise. It’s our job to help you identify which is which, and to help guide you to the next – brighter – chapter.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Life Events That Can Lead to Divorce, March 28, 2015, ABC News More Blog Entries: Schrag v. Spear – Relocation of Custodial Parent Requires Strict Procedural Following, March 5, 2015, Hammond Divorce Lawyer Blog

Further, non-custodial parents have several options with how to proceed, particularly if they fear the move could have a detrimental impact on the parent-child bond.

Indiana Code 31-17-2.2-1 requires custodial parents to file a Notice of Intent to Relocate with the court at least three months prior to moving. Once the notice is filed, the non-custodial parent has 60 days in which to file an Objection to Relocation with the court. more Legally, a judge can’t prevent an adult from moving wherever he or she chooses. However, if the judge finds it is not in the best interest of the child to relocate, the judge may choose to alter the custody arrangement. It’s worth noting if no objection is filed within that 60-day window, the custodial parent is automatically given the right to move with the child.

However, if a custodial parent fails to follow this strict protocol of notification, the repercussions may be severe. Take, for example, the recent child custody dispute in Schrag v. Spear, a Nebraska Supreme Court case. (Although this matter was not one that originated in Indiana, the same general principles are still applicable.)

Here, according to court records, a child was born in 2007. The girl’s parents were never married and never lived together after her birth. When the child was 2, mother established paternity of the child through court order, and father was ordered to pay child support and one-half of day care expenses, while mother was granted custody. Father was granted visitation.

The child’s paternal grandmother had cared for the girl for extended terms while the mother was on tour as a singer, but the pair had a falling out when grandmother once told mother she could not care for the girl on an extended stay due to another family obligation. By the time mother was preparing to relocate, it had been two years since paternal grandmother had seen the child. Father, meanwhile, resided in Missouri.

In 2011, mother moved with child to Iowa and lived with her boyfriend and his parents, and the pair ultimately married. However, mother never obtained permission from the court in Nebraska to relocate with the child to Iowa. Father did not initially oppose the move, however, because he believed it to be temporary. When he came to understand it would be permanent, he sought a modification of custody. Ultimately, the court allowed the girl to stay in her mother’s custody and granted mother permission to move, with father having expanded visitation rights. It further agreed child would have no unsupervised contact with paternal grandmother.

The following year, mother divorced her new husband. On the same day she separated from him, she left with the child to move to New York with her new boyfriend, who was still married. The child returned to her father for visitation, but no mention was made of the move to New York.

It wasn’t until after the summer visitation father was informed of the move, and he disagreed it was best for the child. Further, mother had not obtained the court’s permission. She and the girl were wholly dependent on her new boyfriend for housing and other basic needs, as her annual income from singing totaled about $8,000. Plus, she had the child support from the girl’s father.

Father, meanwhile, was married with other children and working as a restaurant manager.

He petitioned trial court for custody – and it was granted. However, mother appealed, and appellate court reversed. But on appeal to the state supreme court, the high court reversed again.

The court noted parental relocation cases are “among the most complicated and troubling” that the court has to resolve. There are often legitimate competing interest, and courts have a tough time weighing what is truly in the best interest of the child. Sometimes, it’s an educated guess.

Here, the court indicated there was no merit to mother’s assertion that she needed to move in order to establish a new living arrangement and support system.She hadn’t proven the move enriched her career or that there was other legitimate motive. While it might have been a valid argument, she never showed that she moved with a job waiting for her or even a reasonable expectation of career improvement or prospects. Rather, she relied on a man she had known less than year who was still married to provide for her and her daughter.

Additionally, this wasn’t the first time mother moved the girl to another state surreptitiously without first obtaining father’s permission. Thus, it was determined trial court had not abused its discretion, and father should retain custody of the child.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Schrag v. Spear, Feb. 13, 2015, Nebraska Supreme Court More Blog Entries: In re Marriage of Gust – Spousal Maintenance Amount, Duration, Weighed, Feb. 15, 2015, Hammond Child Custody Attorney Blog

Termination of parental rights is seen as a last resort option, allowing the child to be either formally adopted by a more stable third party or to be deemed a child in need of service, in order to secure access to public support and services.

Still, parents who face this kind of action must recognize that such decisions, when they are handed down, are final and may forever close the door on an opportunity to establish a relationship with that child. Once appeals are exhausted, there may be no further right of action. more Our Hammond child custody attorneys know that while such proceedings are taken quite seriously, they aren’t particularly rare. The Indiana Court of Appeals, for example, typically takes on at least a handful every month. Those are only the cases that are accepted for review at the appellate level.

One such recent case was that of In the Matter of the Termination of the Parent-Child Relationship of A.B., which involved the loss of parental rights where both parents suffered from addiction to methamphetamine and domestic violence issues.

According to court records, child was born in March 2004. Three years later, the Department of Child Services took the child into protective custody after both parents tested positive for amphetamines and methamphetamine. Soon after, the court held a hearing in which DCS asserted the child should be officially deemed a “child in need of services,” due to the ongoing drug and domestic violence issues in the home.

The court granted the DCS request for this classification of the child, who remained in foster care while parents participated in addiction assessments, drug tests, therapy and psychological evaluations. Parents successfully completed the case plan, and the child was returned to them one year later, and the “child in need of services” case was closed.

Fast forward four years later, the local DCS office received a report of neglect, endangerment and exposure to illegal drug manufacturing with regard to the same child. The family home burned down, and authorities suspected methamphetamine manufacturing was to blame. Child and parents moved in with friends into another suspected “meth house,” and it was asserted the child’s health, hygiene and educational needs were neglected.

When DCS initiated its investigation, parents told them child moved to Georgia to live with paternal grandmother. However, state investigators soon learned grandmother hadn’t seen mother, father or child for two years. DCS workers tried for several weeks to find the trio. Finally, they learned she was enrolled in a local elementary school. Child was pulled out of class, an interview conducted and mother was called to the school, where drug screens were requested. Child tested negative, but mother was positive for both methamphetamine and amphetamine.

A review of child’s school records indicated she was struggling. She was enrolled in four separate kindergartens, had to repeat first grade, was in a special needs class because her reading level was substandard and she had dozens of marks against her for absences and tardiness.

Child was taken into emergency protective custody, and later, at parent’s request, placed with the family of a classmate. Child was again listed as a child in need of services. Parents agreed to complete a program. In the meantime, child was moved to another home. There, she began to thrive emotionally and academically. Foster parents expressed a desire to adopt her, if they were allowed.

Meanwhile, parents reportedly made no progress to reunite with the child. They missed therapy, did not pay child support, did not maintain employment, failed drug screens, and only sporadically attended supervised visitation. They changed their phone number without notifying DCS and were both arrested at least once.

At this point, the agency moved to terminate parental custody. Father responded by calling DCS office and making threats, which resulted in a restraining order. None of this boded well for their efforts to regain custody of the child.

After this, parents began attending parenting classes and were accepted into a substance abuse program. However, the trial court still terminated parental rights.

Parents appealed, but the decision was ultimately affirmed by the appellate court, which found parents’ enrollment in the substance abuse program an “eleventh-hour” attempt, which was ultimately “too little too late.” Their relapse history in the case did not give the court confidence they would achieve long-lasting success in sobriety, and the child’s best interests would be served by remaining in her current living situation.

Anytime a parent loses custody of a child – even temporarily – it is a wrenching experience for all involved. We work with families to help them achieve the best solution. We know the goals of the court and can help guide you through the system with the ultimate goal of reunification.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: In the Matter of the Termination of the Parent-Child Relationship of A.B., Nov. 26, 2014, Indiana Court of Appeals More Blog Entries: Carr-MacArthur v. Carr – On Mental Health and Child Custody, Nov. 18, 2014, Hammond Child Custody Lawyer Blog

However, from a legal standpoint, stepparents – even residential stepparents – generally have fewer rights than even legal guardians or foster parents. Still, in situations where a stepparent voluntarily receives a stepchild into his or her family and treated the child as a family member, he or she could be considered in loco parentis, meaning he or she assumes an obligation to maintain and support the child.

But absent a formal adoption, a stepparent who later separates from the child’s biological parent and then seeks to establish visitation will face an uphill battle. It is absolutely possible, particularly if the child lived with the stepparent and the relationship was long-term. However, it’s not an automatic right. If a biological parent opposes, the matter will have to be addressed in family court. more Our Gary child custody lawyers know the Indiana Supreme Court established the visitation rights of stepparents in the 2008 case of Schaffer v. Schaffer. Here, the court had to weigh the parental presumption that favors allowing parents autonomy in making decisions over the care, custody and control of the child in contrast with the child’s best interests.

Mother appealed the lower court’s allowance of visitation between her biological daughter and her ex-husband, the girl’s former stepdaughter. The ex-husband was not the child’s biological father, but had been listed as her father on her birth certificate. He provided and cared for her the first 2.5 years of her life. He maintained visitation throughout their divorce proceedings, and because of the prior custodial relationship, was also awarded long-term visitation with the child. Mother requested termination of her ex-husband’s parental rights because he was not the child’s biological father. The lower court denied this request, and the decision was upheld by the Indiana Supreme Court.

The court did find that in initial stepparent visitation orders, stepparents should be held to the same standard as blood relatives, such as grandparents. However, where it is in the best interests of the child, such visitations will be allowed.

Other states are increasingly being asked to weigh these same type of issues. One such case, Higgins v. Cumber, was recently considered by the Montana Supreme Court.

Here, biological mother appealed visitation granted to the child’s stepmother after child’s father died. Paternity had been established soon after child’s birth, and biological father was named primary residential parent six months after baby was born. Just one month later, father married another woman (stepmother). During this time, stepmother became an important figure in the child’s life, performing many of the essential parenting responsibilities for the child. Although she never adopted the child, she was called “mom.”

Five years later, father died. The child remained with stepmother for a short time, but the biological mother sought – and was granted – primary residential custody. Later, the child’s stepfather successfully adopted him.

The stepmother made repeated efforts to remain contact with the child, but biological mother eventually ended that communication. Stepmother then sought visitation rights through the court, which biological mother and adoptive stepfather opposed.

Trial court granted stepmother twice monthly in-person visitations and two weeks of summertime visitation. Parents appealed, and Montana Supreme Court justices reversed. Similar to Indiana, Montana allows the grant of nonparent visitation based solely on the best interests of the child. However, the law also presumes a parent will make decisions that are in the best interest of the child, unless proven otherwise. Here, the district court did not even consider parental fitness, which is the correct standard to consider there when weighing whether to make a decision contrary to parental wishes for their children.

These cases are often stem from acrimonious and complicated relationships. Indiana is more open than most to stepparent visitation, under certain circumstances. It’s important for both parents and stepparents to seek experienced legal counsel before entering a courtroom to address these issues.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Higgins v. Cumber, Nov. 25, 2014, Montana Supreme Court More Blog Entries: In re J.T. – Grandparent Visitation in Indiana a Long Shot, Sept. 18, 2014, Indiana Child Visitation Lawyer Blog

However, in the course of dissolving a marriage or within a child custody dispute, the mental health of one parent or both is sometimes called into question. Often, one side will press for the introduction of evidence such as medical records or the testimony of one’s psychotherapist in order to undercut that person’s fitness as a parent or to gain some other advantage in the case.

It’s important to understand confidential information and communication is protected by mental health professionals, but only to an extent. Particularly in child custody proceedings, the court will find it relative to determine whether one parent is “unstable” or “depressed.” If the information may directly relate to the well-being of a child or the parent’s ability to adequately care for the child, the court is likely to admit the information. more Our Hammond child custody attorneys know this is an issue that has to be handled carefully. On the one hand, we don’t want a parent who needs treatment avoiding help because they fear those records being used against them. On the other hand, we strive to protect the child’s best interests.

According to Mental Health America, only one-third of children with a parent suffering a serious mental illness are being raised by that parent. Still, mental illness alone is not sufficient enough to establish the parent is unfit. Courts will take into consideration side effects of medications, failure to take medications and/or failure to adhere to recommended treatment plans.

Mental illness of a mother was recently the prime subject in the case of Carr-MacArthur v. Carr, before the Georgia Supreme Court.

According to court records, parents were married in 2004, had one child together the following year and divorced four years after that. At the time of the divorce, mother had some physical and mental health issues. Father, who was serving in the U.S. Air Force, was aware of this, but believed them to be manageable.

A family court awarded joint legal custody to both parties, but primary physical custody to mother. She moved to Florida with child, and father remained in Georgia, where he was based.

However, the following year, mother surrendered custody of child to father after the state child services agency found the home in unclean, unsafe condition. there was moldy food and trash on the floor, empty prescription bottles throughout the home and cat food on the floor and kitchen table.

Later, mother sought to regain custody and father filed motion for modification. Mother countered father knew of her mental health issues at the time of their initial agreement, and those issues were the same as before, and thus, there was no material change in condition to warrant modification.

The court granted his modification, and mother appealed, arguing the evidence insufficient.

The state supreme court found that while there as evidence at the time of the initial agreement that mother suffered from obsessive compulsive disorder, depression and severe pain from rheumatoid arthritis, evidence also suggested she suffered from post-traumatic stress disorder and adjustment disorder, which father was not aware. Further, while her conditions were deemed manageable at the time of the first parenting time agreement, the court found they were no longer manageable, as evidenced by findings of child services.

Therefore, there was a material change in condition warranting action.

In her appeal, mother argued her condition had improved and it was likely father would be deployed for long periods of time.

The state supreme court affirmed, though it did reverse regarding an aspect of child support.

These cases are best handled by an experienced family law attorney.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Carr-MacArthur v. Carr, Oct. 20, 2014, Georgia Supreme Court More Blog Entries: Bogner v. Bogner – Indiana Appeals Court Weighs Child Support Change, Oct. 20, 2014, Hammond Family Law Attorney Blog

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. more However, it’s worth noting there are still cases in which grandparent visitation is granted. The case of In re J.T. is one example.

In this case, before the Court of Appeal of California, Second Appellate District, Division Eight, a paternal grandmother sought visitation with her grandson from the boy’s mother, who had only recently regained custody of the child. During the time the mother did not have custody – about two years – the boy lived with his paternal grandmother.

The mother was 16 at the time of the child’s birth, and the boy was placed with his paternal grandmother from August 2010 through September 2012. During this time, the mother partially complied with a reunification plan, but did at times lose contact with the county’s department of children and family services. Her visits with the boy were intermittent.

In September 2012, the juvenile court ruled the boy, then two, should be placed in the custody of his mother, under departmental supervision. The boy’s grandmother sought visitation, and it was granted.

The child’s mother challenged this, saying she did not have a good relationship with the paternal grandmother, saying there were false allegations made and the grandmother interfered with her relationship with her son.

The courts disagreed. The boy was strongly bonded to his grandmother, who it was determined cared well for the boy while he lived with her. Additionally, the court found no credible evidence suggesting the grandmother interfered with the mother-son relationship. Still, the court did indicate the visitation schedule should be reviewed within one year.

Although this petition for grandparent visitation was successful, the reality is that these cases can be quite difficult to prove. It’s important to consult with an experienced attorney before filing a petition. He or she will be able to grant insight into whether, given the circumstances, the request is likely to be granted.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: In re J.T., Aug. 7, 2014, Court of Appeal of California, Second Appellate District, Division Eight More Blog Entries: Termination of Parental Rights in Indiana, April 4, 2014, Gary Child Custody Lawyer Blog

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. more In the recent case of Frackman v. Rick Enzor, before the Alaska Supreme Court, the court was tasked with considering whether a trial court erred in granting sole legal custody to a father on the basis of a purported material change in circumstance relating to the mother’s alleged substance abuse and untreated mental illness.

The mother appealed on the grounds the information was not new, and was available when the original arrangement was set five years prior.

The parents were married in 1996, had two children and divorced in 2005, after the wife had been diagnosed with bipolar disorder, depression, anorexia and a dependence on both cocaine and alcohol. She reportedly took her medication intermittently and attended therapy and treatment with roughly the same frequency. Additionally, the husband at one point was charged with domestic violence relating to a fight the couple had in the midst of the divorce, though that charge was later dismissed.

During child custody hearings, each parent expressed concerns about the other, though both agreed to share physical and legal custody. The following year, both parties moved for modification of the order, but the court denied those motions on the grounds no new material changes were evident.

Then in March 2011, the father petitioned the court for an injunction of protection against his ex-wife pertaining to the children, after allegations surfaced that she had shoved one child to the ground, drank alcohol during her time with the children and fed one child food to which he was allergic. He also alleged the mother was not receiving treatment for her mental health issues.

The court found new evidence tended to indicate the mother’s alcohol use could put the children in danger. While the investigation continued, the shared custody agreement remained in force, but the mother was ordered to submit to twice-weekly urinalysis testing for alcohol. She failed on numerous occasions to comply with the orders. She also failed to take children to sports practices and also failed to take one child to his performance of the kindergarten play, in which he held the lead role.

The court then awarded sole physical custody to the father, and ordered the mother to comply with alcohol testing. She was granted supervised visits, but violated the order by once having her boyfriend as a supervisor and another time by having no supervisor at all.

After six months, she stopped submitting to urinalysis testing altogether.

She was subsequently given several more chances to comply with the order, but failed each time. There were also reported instances of abuse. For example, one child was pushed outside without a coat as punishment. In another instance, she reportedly threw water in her child’s face.

When one son had the opportunity to travel out of the country for baseball, she refused to cooperate in helping him obtain a passport, later saying she was “just being feisty.”

She was ordered to go psychological testing, at which she was again diagnosed with numerous disorders. The therapist concluded there was little chance the mother would comply with court orders.

The court awarded primary physical and sole legal custody to the father. The court cited the material changes in circumstance as being untreated mental illness, use of alcohol and failure to comply with court orders. The court also noted the children’s academic decline while in the care of their mother.

The mother appealed, arguing issues pertaining to her mental health and substance abuse were available at the time the original custody order was set. She said there had been significant re-litigation of prior issues and allegations.

Upon review, the Alaska Supreme Court first noted the trial court has broad discretion in child custody matters. While allegations of prior substance abuse and mental illness was considered, the court found there was new evidence pertaining to both problems that established a firm basis for a material change in circumstance warranting a new custody order.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Frackman v. Rick Enzor, June 20, 2014, Alaska Supreme Court More Blog Entries: Parents Must be Afforded Due Process in Indiana Family Court, Dec. 15, 2013, Indiana Divorce Lawyer Blog

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. more Adoption isn’t always necessary or preferable. But it can be a smart choice for custodial stepparents, particularly when the other biological parent is either abusive or largely not involved.

Even then, however, you may be in for a fight. You may be surprised that a biological parent who has shown no interest in the child otherwise suddenly is battling to stake a claim. They may do this out of pride or spite, even when they realize that what you’re trying to do is in the best interest of the child.

This was the situation recently in a family law case recently reviewed by the South Dakota Supreme Court.

In In re Adoption of Z.N.F., the father had shown little interest in the minor child after separating from the child’s mother. However, when termination proceedings were initiated, he would not agree to surrender parental rights.

According to court records, the child was born in 2002, and the biological parents married shortly thereafter. The family resided in South Dakota, but later relocated to Oregon. Then in 2006, the couple separated.

One evening the following year, the mother woke up to a fire that had engulfed the garage. Both she and the child were able to escape the home. She made it clear to authorities she suspected the father of arson, but there wasn’t enough evidence to charge him with a crime. (The Oregon family court determined that the father most likely set the fire, but again, he was never formally charged.)

After that incident, the father moved to Colorado and the mother obtained a restraining order against him. This order was extended numerous times, and eventually expired in 2010, two years after a bitter divorce.

The mother was granted legal and physical custody of the child, but the father was allowed professionally supervised visits. Despite his right to see his child, he visited only twice. He never attempted to modify the visitation order and did not contact the child through phone calls or e-mail or other means. He later said he was concerned such action would violate the restraining order.

Also during this time, the father did not pay child support. The court in South Dakota (where the mother had returned to live) found him to be in arrearage of nearly $68,000 in support payments.

The mother then moved several times without notifying the father. She says this was done out of fear for the safety of herself and her child. However, the father was notified of her location when he received notice of a 2010 bankruptcy filing.

Although the father purchased a life insurance policy that named the child as a beneficiary and purchased health insurance benefits for the child, the mother says she was never made aware of them.

Eventually, the mother married another man. In 2011, they sought to initiate adoption proceedings and requested the father sign an order waiving his parental rights and consent to the adoption. In this request, they alleged abandonment, continuous neglect and failure to pay child support.

The father asserted he did not abandoned the child.

The trial court sided with the mother, and allowed the adoption proceedings to continue, finding them to be in the best interest of the child. The father’s rights were terminated and the stepfather was allowed to formally adopt the child.

But the case didn’t end there. The father appealed to the state supreme court, arguing that the trial court erred in waiving his consent to adoption, terminating his parental rights and issuing an order for adoption in favor of the stepfather.

The state supreme court affirmed the earlier court’s findings, ruling that there had been no legal err in the conclusion of the case. It found the evidence supported the claim of abandonment. While the mother did not expressly notify him of her whereabouts, the court found she could have been easily located had the father tried, which he did not. The court said that while it did not condone the mother’s attempts to restrict visitation, that alone did not excuse the father’s limited efforts to contact the child.

The father’s argument about concern of the restraining orders was unconvincing, the court found, because he had legal visitation rights to the child of which he did not avail himself.

These cases can be incredibly wrought with emotion and the legal matters can be complex. Domestic relations law varies in state-to-state, so it’s important that anyone considering this kind of action consult with an experienced family law attorney.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City. Call 219-836-2200.

Additional Resources: In re Adoption of Z.N.F., Dec. 18, 2013, South Dakota Supreme Court More Blog Entries: Parents Must be Afforded Due Process in Indiana Family Court, Dec. 15, 2013, Highland Family Law Attorney Blog

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. more That modification resulted in two children being removed from the home of their father, where they had lived for more than five years, and subsequently being placed with their mother.

The high court ultimately reversed this order and remanded the case back to the lower court for “proper” proceedings.

The case first started back in 2006, when the two parties divorced and physical custody of the two children was awarded to the father. (This in and of itself is noteworthy for the fact that years ago, custody was almost always without question awarded to the mother. That is no longer the case.)

Then in early 2011, the mother filed a motion to modify physical custody with respect to one of the children, requesting that she be given full custody of that child. She later amended her motion to request full custody of both children. The matter was referred to the Domestic Relations Counseling Bureau, which recommended the parents and children attend family counseling.

Subsequent to this, the mother filed a series of motions alleging the father was trying to sabotage the counseling process, prompting the trial court to request direct communication with the counselor. In his testimony, the director of the counseling program expressed outrage when it was learned the father had been covertly taping the counseling sessions. The trial court demanded the recordings be turned over, which they were. The mother’s motion to modify custody was set for a hearing.

At that hearing, the judge announced at the beginning that she intended to rule that day on the mother’s motion. At that time, the father’s counsel requested an evidentiary hearing, as well as an in-camera interview with both children. The father indicated that problems at the counseling sessions were not sufficient reason enough to modify custody.

However, the trial court judge reportedly abruptly stated that she felt a year had been wasted, refused to conduct an evidentiary hearing or an in-camera interview and further granted custody of the children to the mother.

The father appealed. The appellate court affirmed the earlier court’s decision, which was later vacated by the Indiana Supreme Court.

The high court reasoned that Indiana Code bars the court from modifying an order of child custody unless the modification is in the best interest of the child and there is a substantial change in one or more of the factors that the court can consider. Among those elements considered under Ind. Code 31-17-2-21(b):

• The age and gender of the child;
• The wishes of the parent;
• The wishes of the child;
• The child’s relationship to both parents, siblings and others involved;
• The child’s adjustment to home, school and community;
• The physical and mental health of all involved;
• Any evidence of physical or domestic violence.

There is no presumption of favor toward either parent, but the parent requesting modification bears the burden of proof in showing that the existing arrangement is no longer in the best interests of the child.

The high court noting that in the Wilson case, the mother was never made to present evidence showing that a modification was in the best interest of either child.

Further, the court noted that at the last hearing in the case, no witnesses were sworn in or cross-examined and no documents were formally admitted to the record. There were also reportedly no courtroom formalities (and very few civilities) observed, as the parties, attorneys, counselors and the judge talked freely to one another, frequently interrupting, without any semblance of order or formal procedure.

The judge made reference to consideration of “the whole picture,” but failed to offer up any insight as to how that conclusion was reached.

The high court referred to the hearing as “an unorganized shouting match,” which failed to meet the criteria that would have upheld the father’s due process rights, and therefore protected the best interests of the children.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Wilson v. Myers, Nov. 5, 2013, In the Supreme Court of Indiana, Appeal from St. Joseph Superior Court More Blog Entries: Indiana Parenting Time Can’t Be “Negotiated Away” High Court Rules, July 20, 2013, Hammond Child Custody Lawyer Blog

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. more Although this is an out-of-state case, judges from across the country carefully watch decisions that are made by other state supreme courts. That’s particularly true when the issues are especially newsworthy. Similar to a headline-making case out of Alabama earlier this summer, the Moix case deals not only with parenting time, but also cohabitation agreements and the issue of gay rights.

As opinions on the formal recognition of gay relationships have continued to evolve in this country, so to have the courts, albeit at a much slower pace. We anticipate that family courts in Indiana will soon be confronting many of these same issues.

In the Moix case, the state supreme court took on an appeal from the father of a 12-year-old boy. The child’s parents had been given joint custody in the divorce agreement, which further stipulated that both parties were not to have overnight visitors of the opposite sex while the child was present. Such cohabitation restrictions are not uncommon in divorce settlements, and are viewed as a way to protect the child from harm caused by a parent who might bring multiple romantic partners in and out of the child’s life.

Of course, the situation may change when one parent becomes seriously romantically involved with someone else. Cohabitation absent marriage is a growing phenomenon in general across the U.S., but the issue poses special challenges for homosexual couples. While cohabitation restrictions wouldn’t apply if the parent in question were married, that isn’t an option for parents in states where such unions are illegal – Indiana and Arkansas being among them.

In Moix, the father sought redress from the circuit court’s visitation order, which contained a specific provision barring his long-time domestic partner from being present during overnight visits with his child. The father argued that this order violated both his state and constitutional rights to equal protection and privacy, and further that the court erred in finding that the restriction should be required, even when no harm to the child was identified.

In response, the Arkansas Supreme Court agreed with him, reversing the circuit court’s decision and remanded the case back to the lower court for further consideration.

The primary issue was whether the cohabitation order is required in cases where there has been no demonstrable harm to the child. The high court held that there is no blanket rule that requires such an order.

Cases like these are determined on a case-by-case basis, with the best interest of the child trumping everything else. Therefore, it’s imperative that family law attorneys representing similarly situated clients take great pains to prove that the child’s life is not only unharmed by the presence of the cohabiting partner, but further that it may be enriched.

Gary Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Moix v. Moix, Nov. 21, 2013, Supreme Court of Arkansas, Appeal from the Pulaski County Circuit Court More Blog Entries: Indiana Cohabitation Agreements in Demand as Remarriage Rates Dip, Nov. 25, 2013, Indiana Child Custody Lawyer Blog

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. more Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Perkinson v. Perkinson, June 25, 2013, Indiana Supreme Court More Blog Entries: Making Indiana Divorce Tougher Would Do More Harm Than Good, May 15, 2013, Hammond Child Custody Lawyer Blog

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. more Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Lesbian mom had tough fight for custody, June 2, 2013, By Dana Hunsinger Benbow, The Indianapolis Star More Blog Entries: Making Indiana Divorce Tougher Would Do More Harm Than Good, May 15, 2013, Hammond Child Custody Lawyer Blog

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. more Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Internet dating leading to rise in child custody battles between countries, says judge, May 1, 2013, By Melanie Hall, The Telegraph More Blog Entries: Severe Addiction Could Cost Custody Rights in Indiana, April 4, 2013, Gary Child Custody Lawyer Blog

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. more Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: HB236, Feb. 12, 2013, Alabama House of Representatives

More Blog Entries: High Conflict Child Custody in Indiana Now Resolved Through Parallel Parenting, March 15, 2013, Munster Child Custody Lawyer Blog

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. more Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Indiana Parenting Time Guidelines, Indiana Rules of the Court, Amended March 1, 2013, Indiana Supreme Court More Blog Entries: Indiana Child Custody Lawyers Talk New State Parenting Time Guidelines, March 5, 2013, Munster Child Custody Attorney Blog Indiana Supreme Court to Consider Revamping Child Custody Rules, October 2, 2013, Munster Child Custody Lawyer Blog