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

With the advancement of technology, the legal sphere has been slower to catch up, but there has been some precedent set to settle disputes that arise.

The recent case of Sieglein v. Schmidt dealt with one such example, recently weighed in on by the Maryland Court of Appeals. The case had to do with establishing paternity when a woman who was married to a man who’d had a vasectomy became pregnant via in vitro fertilization (IVF). This is a type of assisted reproductive technology that involves manually combining the sperm and egg in a laboratory dish and then implanting that embryo into the uterus. more

State law provides that when a child is conceived by artificial insemination to a married woman with the consent of her husband, that child is deemed the legitimate child of them both for all purposes. Further, consent of the husband is presumed unless established otherwise.

The father sought to establish that he was not the “father” because the child had no genetic connection to either himself or his wife. He also challenged the court’s interpretation of the legal phrase “voluntary impoverishment.”

According to court records in Sieglein, Husband and Wife were married in 2008. Prior to their marriage, Husband had one biological child, an adult from a previous relationship, as did the wife. She desired another child, but Husband refused to have his vasectomy reversed. However, he did go with her to a reproductive clinic and he also supported the process of obtaining medical assistance to conceive a child. Both parties signed consent forms indicating they approved of IVF treatments, with the documents stating they had been fully advised of IVF’s purpose, risk, and benefits. The records – again, signed by both parties – indicated the decision was made free from pressure or coercion.

Wife gave birth to a son in 2012, with the birth certificate listing both parties as parents.

Shortly after the child was born, the parties separated. Wife filed a complaint for a limited divorce on grounds of “cruelty and vicious conduct” toward her and her children. She requested child support. Husband denied her allegations, and also denied that he was the father of the child.

A circuit judge held a hearing and determined Husband was the legal father of the child and was therefore obligated to pay child support. Although the man brought evidence demonstrating that he didn’t want to be a parent, that does not rebut the presumption of consent to the IVF treatment or consent to create the child. Not only did Husband sign all the IVF treatment forms, he also remained in the marital home with his wife through the pregnancy, and his name is on the birth certificate.

At a subsequent hearing, the wife presented a protective order issued by another court, ordering her husband to cease harassment and contact and also that he stay away from her place of employment. Further, the court determined that the husband, who was unemployed, had “voluntarily impoverished” himself, meaning he was not off the hook for child support payments.

The wife was awarded sole legal and physical custody of the child and Husband was ordered to pay $1,050 in monthly support, plus $7,000 in arrears.

The appeals court, and later the state high court, affirmed the child support amount – finding the father was in fact the legal parent of the child and had chosen not to work in order to avoid paying the boy’s child support payments.

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

Additional Resources:

Sieglein v. Schmidt, May 20, 2016, Maryland Court of Appeals

More Blog Entries:

Luttrell v. Cucco – Same-Sex Couple Cohabitation Affects Spousal Support Payments, May 11, 2016, Indiana Family Law Attorney Blog

One that Hammond family law attorneys sometimes see crop up is when one parent becomes involved with a new paramour, be it a boyfriend or girlfriend or a new legal spouse. It may be uncomfortable for the ex-spouse; beyond that, it could mean changes in the previously agreed-to parenting plan. That’s why it may be wise to avoid inviting new love interests to spend extensive time with one’s children until the developing relationship becomes more serious.

There have been a significant number of cases in which a parent will apply to limit the amount of exposure children have to their ex-spouse’s new boyfriend or girlfriend. In some cases, this desire arises out of legitimate concern, either a fear that the child will form too close an attachment too quickly, or a worry about the child’s safety due to the paramour’s history. In other instances, it’s simply done out of spite or jealousy. more

In either case, it can have a significant impact on the outcome of a child custody case. Take for example the recent case of Nolan v. Huff, before the Indiana Court of Appeals.

Here, according to court records, the parties were married in 2003 and have twins, born in 2010. Father filed for divorce in 2012. At some point during the divorce proceedings, the father began dating a woman, “Kim.” Soon after, Mother began dating Kim’s then-husband, “Tony.”

By the fall of 2013, both parties had worked successfully through mediation, and it was agreed by both sides that neither parent’s significant other would be left alone with the children without the parent being present. When the divorce was finalized, it was also determined that the mother’s boyfriend was not to live with the mother (with whom the children primarily resided) and Tony was not to be alone with the children. Father was given parenting time in excess of Indiana Parenting Time Guidelines.

Two months later, Mother filed a motion to relocate, seeking permission to move across the state to be closer to her parents and asking that her boyfriend be allowed to live with her. In response, Father opposed that motion and alleged the boyfriend was already living with her in violation of the decree.

At a hearing, the woman said the boyfriend stayed overnight at her home 3 or 4 nights a week, but it was not his legal residence. At that hearing, Kim also testified to the court that her still-husband had anger and violence issues and had raped her more than 20 times over the course of 18 months when she refused him sex. She also said he was violent with their own children.

The court ultimately granted Mother’s request to relocate, but found in her in contempt of court for allowing her boyfriend to live with her in violation of the order, citing her “blatant disregard” for it. The penalty for that was taken under advisement, but the court did award father more parenting time.

Mother appealed, arguing parenting time should not have changed, as neither party had requested it. The appeals court affirmed, noting that the mother impliedly consented to having custody considered when she petitioned the court to relocate, and the court was entitled to consider all matters before it.

This case reveals why parents must tread carefully when it comes to bringing a significant other into their lives in the midst of child custody disputes.

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

Additional Resources:

Nolan v. Huff, May 20, 2016, Indiana Court of Appeals

More Blog Entries:

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

But it was no laughing matter.

The case came about because, as The Daily Mail reported, the man was still legally married to that woman, his long-estranged wife. The pair had never formally divorced. In Iowa – just like in Indiana – a woman’s husband is the presumed father if:

• He and his wife were married when the child was born;
• The child is born no later than 300 days after the marriage ends.

more

The father in that case spoke to the state agency, explained the situation and offered to take a paternity test. However, the state agency informed him it would not be so simple. His only option, she said, is to “de-establish” paternity. That means he’s got to hire and attorney and take the matter to court. And in the meantime, he’s going to be paying child support.

It may seem nonsensical, but the law was written to ensure that children would be protected. But of course, infidelity is a reality in many unions. And then of course, there are situations like this in which spouses are long-estranged.

This case makes a strong argument to avoid putting off divorce. Beyond this example, some reasons you may want to avoid a long-term separation:

• Lack of control over expenditure of marital assets;
• Ample opportunity to hide assets;
• Divorce settlement may ultimately be less if either of your financial circumstances change;
• Spouse could move out-of-state or out-of-country, complicating legal matters;
• Alimony laws in your state could change;
• If your spouse gets into trouble financially, you may be liable too.

And then, of course, there is the matter of future relationships and future children.

When it comes to paternity, there have been many Indiana child support cases in which men have been expected to pay for children who are biologically not their own because the law presumed they were the father.

Some examples of this include:

• Parents not married with no formal establishment of paternity, but father has been informally supporting child and holding child out as his or her own;
• Parents are married – or in the process of divorcing – but have not yet finalized that divorce;
• Parents are divorced and father is paying child support, but now has reason to believe the child is not biologically his own;
• Paternity has been established by means other than a formal DNA test and now father wants to challenge paternity with a formal test.

In the first scenario, the father generally won’t be ordered to pay unless a paternity test establishes he is the biological father. Otherwise, he wouldn’t be required to pay support unless he chose to do so.

In the other scenarios, the father may have to request a paternity test and after that, file a formal request to terminate the child support order and ask that the child not be considered a product of the marriage.

Keep in mind, though, courts generally will not overturn a finding of paternity after two years of being established, no matter what the circumstances.

If you have concerns about establishing paternity, de-establishing paternity or arranging for child support, contact our Gary, Indiana paternity attorneys.

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

Additional Resources:

Man protests law requiring him to pay child support for another man’s child, March 24, 2016, By Tribune Media Wire

More Blog Entries:

Betancourt v. Betancourt – Indiana Child Support Arrears Dispute, March 11, 2016, Gary Paternity 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