Child Support & Divorce - Child Support Order Will Not Predate Divorce Petition

On March 31, 2010, the Court of Appeals held that a child support order cannot predate the filing of the divorce petition. The Court of Appeals stated:

If child support is requested, pursuant to the foregoing authority, this has heretofore been the point at which support commences or can commence. Prior to this event (i.e., the filing of a dissolution petition), the court has no jurisdiction to issue orders pertaining to matters involving the children of the marriage except in situations involving criminal neglect or abuse. There are no such allegations in the instant case. Until a dissolution petition is filed, the parents are free to decide between themselves financial matters involving the children, such as whether they will pay an allowance, whether they will buy cars for their children, or whether they will pay for a college education, to cite just a few examples. This autonomy ends with the filing of a dissolution petition. With the filing of the petition, the parties immediately confer considerable authority upon the court to make decisions, from that time forward, previously reserved only for the parents. In our view, that rule and the bright line it represents should remain inviolate.

However, there was a dissent by Judge Najam in this case. If you are interested in this topic I strongly encourage you to read the entire opinion.

Religion and Custody in Indiana

Having been in a posting "rut" for about a month (however, I been active posting on the All Things Family Law Facebook Fan page), I thank Newsweek for the article "Whose God wins?" which gave me the inspiration for this posting.

In the Newsweek article the author describes a case where a divorced mother and father did not agree as to whether the father should be permitted to take his child, who was raised Jewish, to Catholic mass. The issue was whether a court order that allows one parent to determine a child's religion, or a court order that determines a child's religion, is an unconstitutional restriction of a parent's constitionally protected religious freedom. The author sums up how family courts and constitutional rights intersect as follows:

Family courts interfere with constitutional freedoms all the time. A family-court judge infringes on your right to free speech when he bars you from speaking ill of your ex-husband in front on the kids. She can prevent you from interstate travel if you seek to move your child away from your ex. The Bill of Rights isn't the last word in divorce proceedings, but when a court restrains fundamental constitutional freedoms, like speech, travel, or religion, it's usually for an important reason: the best interest of your child.

In Indiana, generally the custodial parent determines the child's upbringing, including the child's education, health care, and religious training. The custodial parent's right to choose the child's religious training is not disturbed so long as it does not unreasonably interfere with the other parent's visitation rights. However, the term "unreasonable" is very subjective. For example, in one case, a noncustodial parent was ordered to take a child to religious services during his parenting time. The noncustodial parent likely found that "unreasonable."

However, there are constitutional limits on what a court can order with regard to religion. In one Indiana case, the court ordered that parent's who were getting divorced, and were both practicing Wiccans, could not raise their children as Wiccans because the Wiccan religion was based in "non-mainstream religious beliefs and rituals". This ruling was overturned because the Indiana Court of Appeals held that the "trial court did not find that a limitation on Father's parental authority to determine the religious training of his child was necessary to prevent endangerment to the child's physical health or significant impairment of the child's emotional health, we hold that the trial court abused its discretion in ordering the parents to shelter the child from involvement in and observation of “these non-mainstream religious beliefs and rituals."

Facebook and Divorce - Status Update: I was sooooo drunk at the concert last night!

The link to this post is to a Time magazine article that discusses facebook and divorce. Really a good article for anyone dealing with a divorce or attorneys that have a litigation practice.

Cyber-research (some call it cyber-stalking) is the new private investigator. Facebook posts will provide personal information ("I was sooooo drunk at the concert last night"), as well as time stamps and pictures. This information can be used as effective cross-examination or to leverage settlement of certain issues. Further, on the internet people spin themselves inaccurately. Some might call this lying. At a one day hearing where the judge will only know the parties for a few hours, but yet make decisions that carry long-lasting effects, the little white lies posted on the internet can do real damage to a witnesses credibility. If a judge thinks you are not credible, as they say - forgeta 'bout it.

It is not limited to Facebook. Information on 'dating-sites', MySpace or LinkedIn may include estimates of income, occupation details and, again, pictures. Do most people under or over report their income range on a dating site? Obviously over-report. This information can be helpful or damaging at a child support or attorney fee hearing.

Go check your internet profiles and think twice about updating your status with last nights exploits.

UPDATE - The IRS is using FB to track down debtors. Seems like our online lives are being scrutinized from all directions. See link to a WSJ article here