Mediation Rules Amended - Clarifies Mediator's Role and Duties

Today the Supreme Court published orders amending a variety of rules. Notably, the mediation rules for family law mediators were amended, effective January 1, 2010.

The Rule amendment squarely deals with a mediator's role in the preparation and review of documents:

(F) Mediator’s Preparation and Filing of Documents in Domestic Relations Cases
At the request and with the permission of all parties in a domestic relations case, an
attorney registered under ADR Rule 2.5(B) (Attorney Mediator) or a non-attorney registered
under ADR Rule 2.5(B)(2)(b) (Non-Attorney Mediator) working under the supervision of an
Attorney Mediator, may prepare or assist in the preparation of documents as set forth in this
paragraph (F).
The Mediator shall inform an unrepresented party that he or she may have an attorney of
his or her choosing (1) be present at the mediation and/or (2) review any documents prepared
during the mediation. The Mediator shall also review each document drafted during mediation
with any unrepresented parties. During the review the Mediator shall explain to unrepresented
parties that they should not view or rely on language in documents prepared by the Mediator as
legal advice. When the document(s) are finalized to the parties’ and any counsel’s satisfaction,
and at the request and with the permission of all parties and any counsel, the Mediator may also
tender to the court the documents listed below when the mediator’s report is filed.

Additionally, the mediator may prepare or assist in the preparation of only the following documents:

(1) A written mediated agreement reflecting the parties’ actual agreement,
with or without the caption in the case and “so ordered” language for the judge presiding
over the parties’ case;
(2) An order approving a mediated agreement, with the caption in the case, so
long as the order is in the form of a document that has been adopted or accepted by the
court in which the document is to be filed;
(3) A summary decree of dissolution, with the caption in the case, so long as
the decree is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed and the summary decree reflects the terms of the
mediated agreement;
(4) A verified waiver of final hearing, with the caption in the case, so long as
the waiver is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed;
(5) A child support calculation, including a child support worksheet and any
other required worksheets pursuant to the Indiana Child Support Guidelines or Parenting
Time Guidelines, so long as the parties are in agreement on all the entries included in the
calculations;
(6) An income withholding order, with the caption in the case, so long as the
order is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed and the order reflects the terms of the mediated
agreement.

The Supreme Court also amended the appellate rules to encourge more appellate mediation. Appellate mediation has not been frequently used in family law matters. This may change.

New Indiana Supreme Court Case - Interest and Property Division

Today the Indiana Supreme Court issued a new divorce case opinion, here. The Court summed up its holding as follows:

Employing an arrangement relatively common to dissolution decrees, the trial court awarded the marital residence to the wife and ordered her to pay husband a share of its value when any one of certain later events occur. Husband argues that the statute on civil judgments entitles him to post-judgment interest running from the date of the dissolution decree. We hold instead that the dissolution statutes authorize a court to assess interest, or not, in the course of fashioning a just division of assets.

Citing another case the Court noted:

We presume that trial courts are aware of the time value of money and take it into consideration when dividing property and deciding whether interest should be awarded.

In other words, interest is not an automatic. You need to get the Court to specifically order interest.

Custody and Parenting Time

When someone says they want 'custody' or 'sole custody' what do they really mean? They usually explain that they want to be involved in decision making and want to have substantial time with the child; however, being involved and have substantial time with the child is not necessarily controlled by the title of 'custody.' This posting will try to explain the title of 'custody.'

In Indiana we have two components to custody: (1) legal custody and (2) physical custody. Legal custody refers to decision-making authority for decisions related to the child's medical care, educational placement and religious upbringing. If you and the other parent can communicate effectively on these topics you could share legal custody. What if you reach an impasse on an issue? That issue can be resolved with attorneys, a mediator or with the help of a parenting coordinator (see previous blog entry).

'Physical custody' and 'parenting time' are best expressed as "who is going to have the child and at what times?" If one parent has 'sole physical custody' we do not know what that really means unless we know how much parenting time the other parent will have. Your court order might say you have 'sole physical custody,' but it could also say that the other parent has the child three days one week and four days the next? There is nothing 'sole' about that. As a default recommendation, the Indiana Parenting Time Guidelines suggest that at a minimum the parent that has the child less should have the child every other weekend, one evening a week (this can be an overnight), and one half the summer and for alternate holidays. This equates to 25-30% of the time with the child.

What about a 50/50 split? This is sometimes a goal of a prospective client. It can work in certain circumstances, but it has to be in child's best interest as well. Logistical factors can control this:

Do you live close to each other?

Can each parent get the child to school?

Can work schedules support this?

Who will take and pick up the child to activities?

Indeed, there are certainly more factors. As you might imagine, being able to manage a 50/50 split of parenting time depends on how well the parents can work together and communicate.

Finally, let's discuss what the title of 'custody' does not control. It does not give one parent the right to decide what activities the child is involved in, whether the child should be allowed to go see the new Harry Potter movie, or whether the child should be allowed to stay up past 11 p.m. This are decisions each parent gets to make during the their respective parenting time (however, the issue of activities needs to involve communication between the parents, especially where future scheduling is needed or there is a fee for the activity that is shared). Put another way, just because you have 'custody' you do not get to micromanage all of the child's concerns.

When considering how to settle the issue of custody, don't focus on the title of 'custody,' but how to frame your settlement agreement or court order to cause you to have input into the decisions you want to share and the time you wish to have.