Fee Shifting Post-divorce - Will he pay My Attorney Fees? Indiana Divorce Law 2015

View fullsize

It seems fair that if one parent files a custody or child support modification against the other parent and ultimately fails, then the failing party should pay the attorney fees.  After all, they picked the fight and lost.  Therefore, they should have to pay, right?   To deal with this parties (advised by their attorneys) usually include contractual fee-shifting provisions in their divorce settlement agreements, and in paternity decrees.    

Well, maybe these contractual agreements are not binding on the trial court.  In the Capellari divorce  appeal, the Court of Appeals upheld the trial court's refusal to award fees, despite a fee-shifting provision it had previously approved and made part of its orders. 

The fee-shifting provision stated:

In the event that any action is filed with regard to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all sums that either party may be called upon to pay, a reasonable sum for the successful parties [sic] attorney fees at the discretion of the court.

Despite this, in Capellari, the unsuccessful moving parent was not ordered to pay the prevailing parent's attorney fees.  Why not?  How would a rule that fees be paid by the losing party not be a good policy? 

The Court of Appeals explained that it is concerned about justice being accessible by all, not just the ones who can afford to lose.  The entire reasoning of the COA is worth reading:   

We write further today, however, to express concern with fee-shifting provisions in agreements related to child support and parenting time in light of our state’s public policy. Our statutes provide that a trial court may, in its discretion, order the payment of attorney fees in litigation concerning the enforcement or modification of parenting time orders. Ind. Code § 31-17-4-3; also I.C. § 31-15-10-1 (pertaining to attorney fees in initial dissolution proceedings). Such statutory provisions have as their purpose ensuring that “a party, who otherwise could not afford an attorney in connection with dissolution proceedings, have access to an attorney’s services by providing that the other party is responsible for paying the attorney fees.” Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992). Unlike the statutory scheme, fee-shifting provisions in contracts generally serve not to ensure access to the courts, but rather to ensure that the prevailing party in a contract dispute is made whole. Walton v. Claybridge Homeowners Ass’n, Inc., 825 N.E.2d 818, 825-26 (Ind. Ct. App. 2005).  The purpose of fee-shifting provisions in the typical contract matter may contrast unfavorably with the public policy of this state with respect to the rights of children to a relationship with both parents, and to child support. The Indiana Supreme Court has long held that “the right of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents.” Perkinson v. Perkinson, 989 N.E.2d 758, 762 (Ind. 2013). Children are not “to be treated as nothing more than a bargaining chip.” Id. at 765. Accordingly, the Perkinson Court held that “an agreement to contract away a child’s right to receive parenting time … must also be held as void as a matter of public policy.” Id. The Indiana Supreme Court has also held that child support is duty owed by a parent to a child. Schwartz, 994 N.E.2d at 1107. Thus, child support is not subject to the same negotiation and agreement as other civil matters. Id. The fee-shifting provision at issue here, construed as Mother suggests, would serve to penalize any unsuccessful effort at the modification of parenting time or child support. This outcome creates a significant disincentive for parents to seek additional parenting time with their children, and seems at odds with this state’s public policy concerning the primacy of the best interest of the child with respect both to parenting time and child support. See id. at 1107. Here, however, the trial court was within the law and its discretion in interpreting its own order and reaching its conclusion denying Mother’s request for attorney fees.

What does this mean for fee-shifting provisions?  Are they null and void?  Not necessarily.  It is not hard to imagine a different result if the dispute was not over child-related issues.  If the fees were incurred over a property issues from a divorce agreement the same policies would not be involved. However, it seems safe to conclude that where custody and support are involved the trial court is not contractually bound to order fees be paid to the prevailing party. Rather, despite a fee-shifting provisions, the trial court retains its discretion.

To discuss this further please contact me.  

Same-Sex "Parents" - Visitation and Parenting Time - Indiana Law

On October 31, 2013 the Court of Appeals decided an important case in Indiana holding that a person who is the non-biological, same-sex parent of a child has standing to seek a visitation order with the child.  In doing so the Court of Appeals challenges the legislature to review its definition of "parent" (see below) 

In reaching the holding the Court  of Appeals details the policy reasons and merits of allowing visitation to grandparents, opposite-sex stepparents, foster parents and third parties in general.  Summarizing its reasoning the Court stated:

"By recognizing a right to third-party visitation, this court has acknowledged that a child's interest in maintaining relationships with those who have acted in a parental capacity will sometimes trump a natural parent's right to direct the child's upbringing. Moreover, although the reasons our Supreme Court articulated in Worrell for denying standing to former foster parents are beyond dispute, the rationale for limiting third-party visitation to stepparents alone is less clear. It appears to us that the Court viewed a stepparent relationship as a strong indicator that a custodial and parental relationship exists. But surely custodial and parental relationships may exist with third parties other than stepparents. Indeed, the situation presented here is characterized by even stronger indicia of a custodial and parental relationship. This is so because the parties originally intended for the biological mother's partner to fulfill the role of the child's second parent and actively encouraged the development of a parental bond between the partner and the child."

Importantly, the Court explained that a same-sex partner is not automatically entitled to visitation:

"Thus, in the particular factual circumstances of this case, a partner who did not give birth to the child has standing to seek visitation with the child. This is not to say that a former domestic partner is automatically entitled to visitation in these circumstances—it must still be established that visitation is in the child's best interests. We therefore reverse the trial court's conclusion that Partner lacked standing to seek visitation with Child and remand with instructions to reconsider Partner's request for visitation under the standard set forth in our third-party visitation cases."

So, while a same-sex partner may have visitation, Indiana has not held that they are entitled to visitation per the Indiana Parenting Time Guidelines. Yet. 

Finally, one of most interesting parts of the opinion is where the Court of Appeals urges the legislature to address this issue:

"Since King, the status of the law surrounding a lesbian partner's right, if any, to enjoy the rights of a legal parent of a child born to her partner under the circumstances presented here remains uncertain.[5] When this court decided In re A.B., we solicited guidance from the General Assembly on this issue. In the years that have passed since then, none has been forthcoming. The existing statutory framework does not contemplate the increased use of assisted reproductive technologies. Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child. That deficiency is exacerbated by the growing recognition of less traditional family structures. Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is. We feel the vacuum of such guidance even more acutely now than we did eight years ago, when King was decided. Indeed, what began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time. They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived."

To discuss this please contact me. To see all of my postings on this topic search here. 

What School District Does My Child Attend If We Are Divorced? Indiana Custody and Divorce Law

Parents sometimes dispute primary physical custody because they think that doing so will determine which school their child will go to, but I'm here to tell you that school placement is a red herring in a physical custody dispute. Why?

First, educational decisions are made by the child's legal custodian(s), not physical custodian(s). If parents share legal custody they must agree on the child's school placement. If a parent has sole legal custody, they alone get to decide which school the child will attend. For more about this distinction go here.

Secondly, if parents live in different districts Indiana law allows divorced or separated parents to choose between those districts, by filing an election. The law at issue states

the parent granted physical custody by a court may, not later than fourteen (14) days before the first student day of the school year, elect for the student to have legal settlement in the school corporation whose attendance area contains the residence of the student's mother or the school corporation whose attendance area contains the residence of the student's father. See I.C. 20-26-11. The same laws says where parents share 50/50 physical custody they must agree with the school district placement of the child.

While the primary physical custodian, or the joint physical custodians must make the election, school placement is a legal custody decision. All legal custodians (both parents if they share legal custody) must agree on the school placement.

So what school district will a child attend if the parents live in separate districts? The school district the legal custodian or legal custodians select.

If you would like to discuss this topic further, please contact me.