Laws Effective July 1, 2010 - Indiana Family Law Changes - Child Support, Adoption, Paternity, Name Change and Juvenile

This posting is a collection of changes in the law, effective July 1, 2010, that affect Indiana Family Law issues. We pulled these summaries and links from a blog the State of Indiana publishes regarding new laws.

Change of name requirements
H.E.A. 1047, P.L. 61-2010
Effective July 1, 2010
Requires that a petition for a name change: (1) include specified proof of identity for persons at least 17 years old, including a driver’s license number, date of birth, etc.; (2) be filed with the circuit court of the county in which the person resides; and (3) (if filed by a person at least 17 years old) be affirmed under penalties of perjury. Removes a provision requiring a parent or guardian of a minor child who wishes to change the name of the minor child to publish the first notice of the petition for the name change not more than seven days after the date the petition is filed.

Adoption matters
S.E.A. 140, P.L. 21-2010
Effective March 12, 2010 (§ 1-9); July 1, 2010 (§ 10-11)
Enacts IC 31-14-5-9 to provide that a man who is barred from establishing paternity under IC 31-19 (adoption), is prohibited from establishing paternity by filing a paternity action as next friend of the child or requesting a prosecuting attorney to file a paternity action.
Amends IC 31-19-4-4, IC 31-19-4-5 and IC 31-19-9-12 to provide that if a man receives notice of adoption, he must file a notice to contest the adoption in the adoption court and cannot file a paternity action to contest the adoption.
Amends IC 31-19-5-1 to provide that on or before the date the mother executes a written consent to the child’s adoption, a man is only required to register with the putative father registry if the mother has not disclosed the name or address of the putative father to the attorney or agency arranging the child’s adoption.
Amends IC 31-19-9-2 to provide that once a person executes a consent to the adoption of a child, the same person may not execute a second or subsequent consent to adopt to another person, unless the steps in this section are taken to withdraw the first consent.
Amends IC 31-19-11-1 to provide that a court may not grant an adoption to a person convicted of an attempt or conspiracy to commit a felony listed in this section or who is a sexually violent predator.
Amends IC 31-35-2-4 and IC 31-35-2-5 to provide that a petition to terminate parental rights in either a CHINS or delinquency case may indicate that the child has, on two separate occasions, been adjudicated a CHINS.
Amends IC 35-46-1-21 and IC 35-46-1-22 to provide that only an attorney or child placing agency licensed under Indiana may place certain advertisements about adoptions or provide adoption services.

Various child support matters
S.E.A. 163, P.L. 80-2010
Effective July 1, 2010
Requires a court to immediately withhold child support in all cases, rather than only Title IV-D cases, unless the parties submit a written agreement in the record which meets certain requirements and is approved by the court. Establishes the information to be included in an income withholding order.
Establishes the withholding of cash winnings of support obligors who are delinquent in court ordered child support if delinquent more than $2,000 or three months past due. Provides penalties for noncompliance with these provisions.
Removes the mandatory reinstatement fee for a driver’s license suspended because of delinquent child support.
Requires a guardian or custodian to make a good faith effort to cooperate with the Child Support Bureau and certain other agencies regarding certain paternity and child support matters, including assisting a prosecutor to locate or identify parents and provide other requested information. Defines good faith effort to cooperate. Provides that a parent, custodian or guardian who refuses to cooperate in a paternity action or the establishment or enforcement of a child support order is subject to sanctions or revocation or suspension of TANF benefits.
Provides that a court may consider a child emancipated if the child is on active duty, rather than only enlisted, in the United States armed forces.
Provides that a parent shall supply the following information to the Clerk for entry into ISETS: (1) mailing address, (2) telephone numbers, (3) date of birth, (4) driver’s license number, and (5) social security number. The address does not have to be supplied in the case of a participant in the address confidentiality program under IC 5-26.5.
Establishes that a party affected by a support order must notify the Clerk and the State Central Collection Unit of any change of address not more than 15 days after the party’s address is changed. Provides that when a support order is issued or modified, the parties shall inform the child support bureau of the receipt of any AFDC, TANF and the social security number of a child affected by the order.
Requires a court or administrative agency in any child support enforcement action to deem state due process met for a party if a diligent effort was made to ascertain the location of the party in child support cases. Diligent effort in this case means mailing written notice to the party at the most recent residential or employer address filed with the clerk or state central collection unit.
Provides that a court may not consider a parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order. If a court temporarily modifies a custody order due to active duty service, the temporary modification order terminates automatically not later than 10 days after the date the parent notifies the temporary custodian in writing the parent has returned.
Requires a court to order the parent(s) in a support modification proceeding to prove medical support for the child if a Title IV-D agency petitions for the modification and the coverage is available to the parent at a reasonable cost.
Requires an employer to transfer the National Medical Support Notice to the employer’s health insurance plan within 20 days after the date of the National Medical Support Notice.
Provides for the distribution of withheld income pro rata among the persons entitled to receive the support and in manner that will not result in one of the current child support obligations not being honored.
Provides an income payor is not required to vary the income payor’s normal pay and distribution cycles in order to comply with the income withholding provisions. Provides an income payor is not subject to civil liability for income withheld and paid in accordance with an income withholding order that appears regular on its face.
Provides that the Child Support Bureau shall petition a court to establish paternity and support, including health insurance coverage.
Prohibits a person from disclaiming an interest in property up to the extent of the person’s child support arrearage.

Custody and parenting time matters
S.E.A. 178, P.L. 25-2010
Effective July 1, 2010
Amends IC 16-37-2-2.1 to provide that the paternity affidavit shall contain a statement that the parents agree to share joint legal custody of the child, and if not, mother has sole legal custody. Defines joint legal custody and gives mother primary physical custody of the child.
Establishes a statement with signature lines on the paternity affidavit affirming that a person under eighteen (18) years of age had a chance to consult with an adult before signing the affidavit. Provides that parenting time under the paternity affidavit shall be under the parenting time guidelines.
Provides that, if there is an action to establish custody or parenting time of a party who has agreed to share joint legal custody, it shall be tried de novo.
Provides that, before the paternity affidavit is signed, it must be presented separately to the mother and the father so that they each may review it alone. A paternity affidavit is voidable if this does not occur.
Provides that an agreement to share joint legal custody is void if either the following applies: (1) a genetic test indicates a person is not the biological father; (2) the father fails to submit to a local health officer, and not later than sixty (60) days after the date of the child’s birth, the results of a genetic test indicate the person is the biological father.

Juvenile, education, and law enforcement matters
H.E.A. 1193, P.L. 74-2010
Effective July 1, 2010
Establishes the Law Enforcement, School Policing, and Youth Work Group to study and recommend to the General Assembly: (1) legislative changes; (2) training curricula for use by the Indiana Law Enforcement Academy for law enforcement interactions with juveniles; (3) training curricula for school resources officers, teachers, school administrators, school corporation police officers and privately contracted security officers; (4) guidelines for school districts to adopt to reduce juvenile involvement in the juvenile justice areas; (5) whether school security guards should be able to make arrests, conduct searches, and carry firearms on school corporation property; and (6) other related areas. The Work Group shall conduct its first meeting by August 1, 2010 and issue a report before July 1 each year.
Requires all school corporations to submit a student safety report by July 1 each year to the Department of Education containing the number of arrests on school property, offenses, employee contacts with law enforcement that resulted in arrests off school property, whether the school corporation has school police or private security guards and other information.

Legal Custody and New Paternity Affidavit Law – Indiana Custody Law

With the law set to change next week, we are republishing this post.

Effective July 1, 2010, Indiana paternity law changes. Where a child is born out-of-wedlock and legal paternity is established by signing a paternity affidavit, the parents, by default, will share legal custody. Additionally, the father will be entitled to parenting time pursuant to the Indiana Parenting Time Guidelines. This is a major shift in paternity/custody law.

Legal custody refers to only the decision-making rights as to the child. It is important to recognize that this statute will not affect physical custody, which in paternity situations is still, by default, with the mother. Decisions related to health care, education, and religious upbringing are legal custody decisions.

Formerly, where a child was born out of wedlock the default was that the mother had sole legal custody. This is still the case where a paternity affidavit is not executed, but after July 1, 2010, where paternity is executed (the father and mother sign the paternity affidavit), the father will share legal custody with the mother. In other words for the major health care (ex. Braces), education (ex. public or private school), and religious upbringing (ex. baptized or not) decisions the mother and father must agree.

Whether this rule change was a good idea was heavily debated by the family law bar. On one side, where you have a father who is committed to be a parent sharing legal custody seems only fair. After all, why should a committed, involved parent not have an equal say as to the major life decisions? On the other side is the unfortunate reality that there are some uninvolved, uncommitted fathers, and in this type of situation it will be difficult to share custody decisions. Stereotypically these are also the fathers that dodge child support orders and court dates. It is a case of a few bad apples spoiling the bunch.

If the paternity affidavit is not signed can the parents still share legal custody? Yes, but only “if the court finds that an award of joint legal custody would be in the best interest of the child.” When the court determines whether an award of joint legal custody is in the best interest of the child, the court shall consider the following factors:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the person’s awarded joint custody.

The parent’s ability to communicate is generally an important factor in cases where child are born out-of-wedlock. In a paternity situation, the parent’s relationship may have been more limited in duration and scope than where the parents are married (think the movie “Knocked Up”). That is not to say that all married parents get along much better.

If the parents fight and battle they can’t share legal custody. “[P]arents should not be permitted to maintain joint legal custody over their children if they cannot work and communicate together to raise the children.” Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind. Ct. App. 2004)(citing I.C. § 31-17-2-15(2)(West 1998)). A court must decide whether parents “have the ability to work together for the best interests of their children” when “determining whether joint legal custody is appropriate.” Id. (citing Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001)). The court in Arms went on to conclude that “[p]ast behavior is a valid predictor for future conduct.” Id.
If the parent’s share legal custody, but their ability to work together and communicate becomes too disruptive, the court may modify a joint legal custody order to a sole legal custody order. “[I]f parties have made child-rearing a battleground, then joint custody is not appropriate.” Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995).

While the default to joint legal custody where a paternity affidavit is signed is a new standard, general legal custody will still be subject to the above law and considerations.

Privacy Controls, Facebook and Divorce

There was an order last week from an Indiana Federal Court ruling that information posted on social networking sites (SNS) is discoverable over privacy objections.

Here is a link to an article discussing the topic of using SNS in divorce cases specifically.

A portion of the article:

Elizabeth K. Englander, professor of psychology at Bridgewater State College in Massachusetts, says people divulge information on social media because they believe no one will ever see the information they post.
"The sense online is sort of like the mob effect," Englander said. "You feel like you're one in a million, and so who will ever notice you?"
But when someone does notice, that's when some divorce attorneys pounce. Information copied from social media sites can sway the outcome of alimony payment disputes and custody fights, attorneys say. Some parents have even lost a child because of the behavior they exhibited online, the lawyers say.
The ultimate goal, after all, is to catch a spouse in a lie. Sometimes it's a wife claiming she can't afford child support payments but subsequently purchased expensive jewelry and posted photos of the items on Facebook. Or if a husband who claims he doesn't have anger problems while his social media profile is loaded with expletives. Once there is evidence of a person caught in an obvious lie, attorneys say, it undermines the rest of their credibility with the judge.

Consider how much of your information is findable and how/why you are using SNS. The article suggests learning and using the privacy controls, or getting off of SNS entirely. Here is a link and discussion of the Facebook privacy controls.

For more on this topic see an earlier post.