Friday, September 27, 2013

Adoption of Baby Veronica and the Indian Child Welfare Act

Baby Veronica, who was at the center of a legal dispute between her biological father, a member of the Cherokee Nation, and her adoptive parents, Matt and Melanie Capobianco, has been returned to the Capobiancos in South Carolina.
Veronica was handed over to the Capobiancos hours after the Oklahoma Supreme Court dissolved a temporary court order leaving the child with her father and his family. Until the Monday night transfer, the Cherokee Nation had insisted the girl would remain with the tribe.

The Capobiancos and the girl's biological father, Dusten Brown, had fought for years over custody of the girl. The dispute has raised questions about jurisdictions, tribal sovereignty and a federal law meant to help keep Native American tribes together called the Indian Child Welfare Act.

Veronica, whose biological father is a member of the Cherokee Nation and whose biological mother in not Native American, had lived with the Capobiancos from birth until she was 27 months old, when Brown was awarded custody under the Indian Child Welfare Act. But a U.S. Supreme Court decision later went against Brown, and a South Carolina court finalized the Capobiancos' adoption of the girl earlier this year. Brown had then turned to Oklahoma's courts.

Brown and his family claim the Indian Child Welfare Act mandates that the child be raised within the Cherokee Nation. The law was passed in 1978 with the intent of reducing the high rates of Native American children being adopted by non-Native American families.

A South Carolina court cited the law when awarding Veronica to Brown in 2011, but the U.S. Supreme Court this year said the law did not apply because he had been absent from the child's life.

Monday, August 19, 2013

Proud to be a family: 5 easy steps to adopting as a same-sex couple in Indiana

      Same-sex couples in Indiana may be surprised to learn that Indiana’s adoption statutes, as interpreted by the Indiana Court of Appeals, allow unmarried couples, regardless of sexual orientation, to file joint petitions for adoption. The legislature may have prohibited same-sex marriage (Ind. Code §31-11-1-1), but it has not done the same for parenthood. In the case of In re Infant Girl W., 845 N.E. 2d 229, 244 (Ind.Ct.App.2006), the Indiana Court of Appeals held that “there is simply nothing in the Adoption Act suggesting that it [the legislature] intends to preclude all unmarried couples from adopting.”  

Here’s how they got there – just 5 easy steps: 

1.      Indiana Code states that both adults and minors may be adopted by “a resident of Indiana.” Ind. Code § 31-19-2-1 and 31-19-2-2(a). 

2.      Rules of statutory construction allow for words used in the singular to be interpreted as also including the plural version. Infant Girl W. at 242. 

3.      So, the Court of Appeals reasoned, if a singular resident can adopt, then residents can, too. Id. at 242. The Court of Appeals pointed to adoption by married couples as support for this interpretation.

4.      The adoption statutes do lay out certain requirements that married couples must following when petitioning to adopt, namely that both the husband and wife have to join in the Petition for Adoption. Ind. Code § 31-19-2-4. 

5.      But, the Court of Appeals held, “it does not follow that in placing this requirement upon a married couple, the legislature was simultaneously denying an unmarried couple the right to petition jointly.” Infant Girl W. at 243.  

            You can also file a petition for a “second parent” adoption if your partner already has children, biological or adopted. In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind.Ct.App. 2003); In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind.Ct.App. 2004). If you and your partner are interested in adopting a child together or you are seeking to become a legal parent of your partner’s child(ren) , please contact our office to learn more!

Tuesday, July 30, 2013

Addressing Back-to-School Issues by Collaborative Practice

     Whether you are separated or divorced, or share a child with a former partner, there are issues which commonly arise in July and August prior to the start of school.  These back-to-school issues often need immediate attention, and court calendars may not accommodate the issue in a timely fashion.  In addition to the time crunch, litigating the issues may be cost prohibitive.  

We are often asked whether issues in a post-dissolution or a post-paternity decree can be addressed collaboratively.  The answer is a resounding “YES!”  It is always better to resolve children’s issues by collaboration and open communication than by litigation.  Not only does it address immediate issues, but collaborative practice sets the stage for future resolution via communication between the parties without the need for attorneys.

            Where the children attend school is often a source of disagreement, the desire of a party to have a child attend private or parochial school instead of public school, and the payment of the cost of that private or parochial education, are often issues that are not fully addressed in divorce or paternity decrees because of the age of the children at the time of the decree.  Collaborative practice can be used to work through these issues in positive ways, and sets the stage for resolution of similar issues that may arise as the children grow.  Child specialists are often used to evaluate the educational process and the application of the proposed education to the individual child.

            The use of medication, i.e. prescriptions for ADD, ADHD, and depression, are often hotly contested between separated parents.  Parents are quick to make judgments as to the best interests of his/her child without considering the position of the other parent.  Again, child specialists gather information from treating health care professionals and educators, as well as from parents, and work with the parents and their attorneys to resolve the issues peacefully.  

            The financial impact of sending a child to college is significant.  Some parents save and are prepared for those large bursar bills, while others haven’t been able to save, and find themselves in the financial situation of being unable to pay for college.  Collaboratively trained financial specialists are useful in evaluating the financial impact of college and applying financial strategies to create plans of action for college payments.  Creative solutions are often available when the parties use knowledgeable professionals to help guide them through the process.

            Extracurricular activities, and the expense of those activities, increase greatly as the children age.  Some parties can afford to have the children in every activity from school- supported sports to private/club sports.  Others simply cannot.  Collaborative practice can be used to help the parties view these activities rationally and cooperatively.  It allows the parents to openly dialogue as to the best interests of the child in participating in the sport or sports and the financial impact of the parent, and perhaps the child, by allowing the child to participate.  

            Collaborative practice is an efficient and time effective way to 1) evaluate the problem; 2) research resolutions; and 3) apply plans of action that resolve issues.  Collaborative practice is an excellent tool to resolve all family issues – not just issues that arise during the divorce.  Efficient, effective, and economical:  collaborative practice is the answer to your post-decree disputes!

Friday, July 12, 2013

What are the Benefits of Collaborative Divorce?

       For those of us who practice collaborative divorce, a description of its benefits can take pages and pages of text -- especially for those of us who have been representing clients in divorce litigation for many years.  We have experienced first-hand the frustration, anger, hurt and disillusionment that often accompanies the traditional litigation process.  Here is a summary of SOME of the benefits of the collaborative process:  

Time.  Couples who decide to divorce do not make the decision quickly.  It has been a long-term process which has involved a lot of thought and discussion.  Once the decision to divorce has finally been made, many clients are disappointed at the length of time it can take to resolve the dissolution action and finally be divorced.  In litigation cases, the parties are subject to the court’s calendar. Divorce cases are often set several months in advance, and then may be continued if set behind other civil cases and criminal jury cases.  The delay in actually getting to court may have a negative financial and/or emotional impact on the parties.

In collaborative cases, the parties schedule their meetings at times that suit their schedules.  They produce documents and records, and respond to inquiries informally during 4-way meetings (parties and counsel) with open dialogue.  There are no time restraints, and the parties are free to work through the dissolution or post-dissolution issues on their timetable.  

A view of the whole picture.  In a litigation-track divorce, parties work independently of one another, and his/her case is developed from information that he/she knows or has specifically requested from the other party.  In such cases, parties do not always see the broad picture until they are close to, or at, trial. 
In collaborative cases, the parties meet in 4-way meetings, and open dialogue is encouraged so that parties and counsel understand all of the issues.  This open dialogue saves time in that cases are developed with all pertinent facts known.  It also saves attorney fees in that formal discovery requests (Interrogatories and Request for Production of Documents) are not necessary.  Parties who know the whole picture are able to carefully consider the information and make informed decisions about their future.

 Command your own destiny.  It is true that a party may “command his own destiny” in litigation track cases through settlement negotiation and alternative dispute resolution (ADR), i.e. mediation.  However, in litigation track, such negotiations and ADR occurs toward the final stages of the case, and often just before the trial setting.  And if a case is not settled prior to trial, it is subjected to the Court for complete decision making.  When a case is tried, the parties have no control over the court’s decisions, as those decisions are at the discretion of the court. In collaborative cases, parties begin 4-way meetings right away and decisions can be made during the process after presentation and collaboration of the facts and issues.  The collaborative process allows the parties to have a say in their future and the future of their children from the very beginning. 
Maintain respect and civility.  Parents who are divorced are forever linked to the ex-spouse.  They will see each other at times such as sporting events, graduations, weddings and grandchildren’s birthday parties.  Parents who are respectful and civil are often welcomed by the children at these events, while parents who are bitter and angry are not.  

Collaborative practice allows the parties to divorce in such a way that respect and civility is maintained.  The parties jointly make decisions about custody, parenting time and division of debts and assets, but they also discuss communication techniques and “rules of the game,” such as when significant others will be introduced to the children, same/similar parenting rules, punishment guidelines and commitments to avoid negative statements about the other in the presence of the children.  

Save money.  Last, but certainly not least, is the savings of attorney fees and litigation costs.  Collaborative practice does require legal services such as conferences with clients, attendance at 4-way meetings, review of financial documentation and information, preparation of summaries and proposals, and preparation of final Agreements and Decrees.  However, there are many costs that are not incurred, such as deposition fees, exhibit preparation (only for the hearing to be continued and exhibits redone at a later date), custody evaluations, discovery requests, and expert witness fees. 

If “experts” are needed, collaboratively trained professionals (i.e. child and financial specialists) are engaged as neutrals to work with the parties to resolve issues.  The costs related to these specialists are, more often than not, less expensive than hiring an expert witness such as a custody evaluator or a forensic accountant.

The time effectiveness of collaborative practice results in financial savings to the parties because marital bills and expenses are addressed early in the process.  Parties often save money to service credit card debt and marital residence expenses during the divorce process because collaborative cases can be finalized sooner than the matter can be tried and resolved by judicial decree.

  If you are interested in knowing more about the collaborative process, contact any member of our collaborative practice team.  We would be glad to answer any questions you may have!

Tuesday, July 9, 2013

You’ve Got Your Decree! – Here are Some Suggestions for Tying up Loose Ends.

           So, you’re there!  You’re divorced!  You take a look at the final Decree and breathe a sigh of relief.  However, here are a few suggestions to make sure all of those pesky loose ends are tied up neatly.

            If, as a part of the Decree, you have been awarded a division of your ex-spouse’s retirement account(s), make sure your portion of the account(s) is actually transferred to your individual account, set aside in your individual name, or reserved in your name for distribution at a future date pursuant to the plan.  If the plan is a “qualified plan,” such as a 401(k) or pension, follow up with your attorney within 60 days to make sure the appropriate Qualified Domestic Relations Orders have been sent to the plan administrator.  [Beware: QDROs may take several months to be approved by the plan administration, so calendar follow-up dates every three months until you receive confirmation that the funds have been transferred.]

            Homestead and other tax exemptions do not follow the new owner if the real estate is transferred – even if quitclaimed from husband and wife jointly to husband or wife individually.  If you have received ownership of real estate via a Quitclaim Deed, you must re-file your tax exemptions with the county.  Take a copy of the Quitclaim Deed with you to the county office in case it has yet to be recorded and entered into the county records.

            If you do not wish your former spouse to be a beneficiary of your life insurance, retirement account, annuity policy, life estate, trust, and paid on death account, you should immediately notify the company and/or plan administrator that you wish to change the beneficiary designation.  Keep a record of your contact with the company and/or administrator, and continue to follow up until you have confirmation that the beneficiary designation has been changed.  Trust documents, deeds showing a remainder interest, and paid on death accounts should be changed as soon as practicable after the divorce decree is finished.  Also, update your Last Will and Testament and/or Living Trust documents to reflect your new marital status and to name new beneficiaries.  

            Close any joint credit card and bank accounts and/or transfer those accounts to your individual name.  We also recommend that you monitor your credit report for a year or so to make sure your spouse is not opening credit card or loan accounts in your name or otherwise using your social security number without your knowledge.

            If you have children, open a child support account with the clerk’s office of the county where your divorce was granted (if you didn’t already do so during the divorce proceeding).  We recommend that all child support payments be made through the state so that all payments are properly recorded and distributed.

            Notify doctor’s offices, schools, day care providers, and other healthcare or educational providers that you and your spouse are divorced.  If special arrangements need to be made for attendance at appointments and school events, or for pick up and drop off of the children, provide a copy of that portion of the Decree to the office and make sure everyone knows about the required arrangement.  Do not forget to change addresses with all healthcare and educational providers (both mail and email) so that you are getting all of the pertinent information.   

            If you have changed your name, you will need to obtain a certified copy of the Decree and/or court order granting the name change.  You may obtain the certified copy at the clerk’s office in the county where the divorce was granted.  There will be a fee, and most offices will not take personal checks.  Come prepared to pay cash.

            Check the Bureau/Department of Motor Vehicles website for information and documentation you will need to take with you to change your name and address on your driver’s license.  Do the same for the Social Security Administration.  Make sure you have all of the documents required BEFORE you go.  Government agencies do not make exceptions to the required documentation.

            Keep a copy of your Decree for reference, along with a copy of the parenting time statute or guidelines (depending on the state where you live).  If there is ever a disagreement between you and your ex-spouse as to distribution and/or parenting time set forth in the Decree, those documents are your “go to” resources for quick answers.

            This article is not intended to be an all-inclusive list or description of everything that needs to be done to tie up loose ends after your dissolution, and may not address all of your individual and specific needs.  If you have additional questions or comments, please contact us.  We will be happy to talk to you about your individual questions and needs.