Grandparent Visitation Rights

 

           In a recent case In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B., the Indiana Court of Appeals reversed an order vacating paternal grandmother’s grandparent visitation rights on the basis that the trial court initially granting the grandparent rights lacked the statutory authority to do so.  The Court of Appeals found, however, that the guardians’ objections to her want of standing were waived when the guardians failed to appeal the original order.

            J.C. is the mother of M.A., who had two daughters with his wife. The girls were home when he shot and killed his wife. M.A. went to prison and the girls moved in with M.A.’s half brother, J.B., and his partner, S.B. The couple later filed for guardianship of the girls, in which the grandmother, (J.C.) filed a motion to intervene and a petition for grandparent visitation.

            The grandmother was eventually granted unsupervised grandparent visitation on a strict schedule. The guardians didn’t appeal the original order or the amended order. After the grandmother initiated a telephone call between one of the girls and her incarcerated father, the guardians sought to terminate the grandmother’s visitation. They claimed she never had standing under the grandparent visitation statute. The grandmother argued that the guardians waived their standing by consenting to the provisional visitation agreement and by not appealing the original visitation order.

            The trial court ruled in favor of the guardians and vacated the visitation order.

            The Court of Appeals reversed the trial court and concluded that, although the grandmother lacked standing to pursue the original grandparent visitation order, the guardians’ objections to the grandmother’s standing were waived when the guardians failed to appeal the original order. The Court also concluded that the grandmother’s visitation rights were not terminated by the adoption of the minor children, because they were adopted by their uncle and his partner, and not a non-relative third-party.

            However, the grandmother’s fight may not be over yet.  The Court of Appeals did mention that the subject may be revisited.  “Given that nearly a year has passed since the grandparent visitation order has been vacated, it may be wise for the trial court to schedule a hearing sua sponte on the children’s best interests to determine whether and to what extent grandparent visitation should occur in the future,” Judge John Baker wrote in In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B., 48A02-1204-GU-326.

Supreme Court Hears Arguments on Same-sex Couples Marriage Rights

The Supreme Court began hearing oral arguments today on marriage laws, which could lead to a wide array of outcomes, from essentially leaving in place the traditional marriage laws to proclaiming same-sex marriage is a fundamental right under the Equal Protection Clause of the 14th Amendment of the United States Constitution.

According to the Pew Research Center‘s poll on public opinion of same-sex marriage in the United States, most recent polls show a slight majority support for the the legal recognition of same-sex marriage. Support for same-sex marriages has increased steadily for more than a decade. In August of 2010, a CNN poll became the first national poll to show majority support for same-sex marriage, with many subsequent polls following suit.

Tuesday’s arguments will be over California’s Proposition 8. The case, Hollingsworth v. Perry has its genesis in 2004 when a group of gay couples went to the San Francisco courthouse in search of marriage licenses. They were turned down by the city government, so they sued in state court, ultimately winning in the California Supreme Court. That court decision prompted supporters of 'traditional' marriage to sponsor a statewide ballot measure, Proposition 8, which defined marriage narrowly as a relationship between one man and one woman. Voters approved Proposition 8 in 2008. The Supreme Court could uphold Proposition 8 or, conversely, it could decide to not only strike it down, but to invalidate any state law that limits marriage to one man and one woman. In the alternative, the Supreme Court could issue a limited ruling that applies only to California and several other states which allow domestic partnerships that are almost identical to marriage in all but name.

In a separate oral argument, expected Wednesday, the court will hear oral arguments in a challenge to one section of the 1996 Defense of Marriage Act, which for purposes of federal regulations and benefits, defines marriage as “a legal union between one man and one woman as husband and wife.”

A decision from the Supreme Court is likely by the end of its term sometime in late June.

What do you think?

Justices Remand for Additional Proceedings on Grandparent Visitation Order

 A mother of a child born out of wedlock allowed her child’s grandfather to have visitation with the child early on in his life.  However, once the mother re-married she began to curtail the visits.  Grandfather intervened and petitioned the Court for grandparent visitation.  The trial court granted the visitation including overnight visitation and a summer family vacation.  The appeals court affirmed this ruling and the trial court’s decision went to the Supreme Court. The Supreme Court sent the case back to trial court for new findings and conclusions without hearing new evidence.  Review the Supreme Court’s reasoning by checking out the article at http://www.theindianalawyer.com/justices-remand-for-more-proceedings-on-grandparent-visitation-order/PARAMS/article/30920.

If you are considering a divorce, currently face a divorce, or if you are a grandparent seeking visitation of your grandchild, it is a good idea to discuss your situation with a Hollingsworth & Zivitz, PC family law attorney. Hollingsworth & Zivitz, PC serves clients in the greater Indianapolis area including Carmel, Fishers, Westfield, Noblesville, and Hamilton County, as well as Zionsville, Avon, Brownsburg, and the counties surrounding Marion County.

To discuss your divorce or family law issue with a Hollingsworth & Zivitz, PC attorney, call 317.DIVORCE or click here to contact us online.

IN Supreme Court Affirms What is Said in Mediation, Stays in Mediation

For the full-text article, please visit:

http://www.theindianalawyer.com/supreme-court-affirms-what-is-said-in-mediation-stays-in-mediation/PARAMS/article/30753

Amendments to the Indiana Parenting Time Guidelines to Go Into Effect March 1, 2013.

For additional information on the upcoming modifications to the IPTG, please visit the following link:

http://www.theindianalawyer.com/justices-adopt-changes-to-parenting-time-guidelines/PARAMS/article/30480

Ex-Husband Order to Pay Child Support for Children Conceived from Sperm Donor

The following articles discusses a recent Court ruling wherein the Indiana Court of Appeals upheld a trial court's order that the Ex-Husband of a woman pay child support for children conceived by a sperm donor during their marriage.  According to the article, there is a dsipute between the parties as to whether or not Husband consented at the time of conception. The woman performed the procedure without the assistance of a doctor.

For the full-text article, please visit:

http://www.indystar.com/viewart/20130116/NEWS/301160330/Court-Ex-husband-must-support-artificially-conceived-kids

Kim Kardashian - Baby on the Way But Still Married to Kris....

Below is the link to an article outlining recent developments in Kim Kardashian’s and Chris Humphries’  divorce proceeding.  Currently, based on the parties’ respective legal positions, there is speculation that the hearing on the final dissolution may not occur until June 2013 – which is also very near Kim’s due date.  As many know, Kim is expecting a child with Kanye West.  Kim is allegedly “frustrated and angry,” at the prospect of giving birth to a child while married to another man. 

Its no wonder. Aside, from personal concerns, legally (and while we at H&Z practice divorce ONLY under Indiana law and therefore cannot advise as to what may occur in the state they have filed for divorce) – if these parties were divorcing in Indiana and there was no final dissolution by the time Kim were to give birth, under Indiana law the child would be presumed to be a child of the marriage.  Thus, the basis to push for the finalization of the divorce prior to the child's birth. This is due to the law defining who is presumed to be a child’s biological father. Under Indiana law, Kris would be presumed to be the child’s father if:

 (1) the child was born during the marriage; or
 (2)  the child was born not later than 300 days after the marriage is terminated by dissolution.

See Indiana Code Section 31-14-7-1. 

Of course this is a rebuttable presumption. However, under Indiana law, should the issue be left unaddressed, there could be implications affecting each party’s rights. Namely, the presumption may lead to a right of either party to orders regarding child support and parenting time.  While it may be unlikely for such an outcome to occur, this fact scenario is a prime example of an instance where the law leads to bizarre results.

For a full-text version of the article, please visit the following link:

http://www.tmz.com/category/kim-kardashian-divorce/

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs. If you have questions or concerns regarding divorce, custody, support, or any other family law concerns contact our firm at 317.DIVORCE or visit our website at www.hzlegal.com.

Noncompliance with the Decree or Court Order

In most, if not all family law cases, the finalization of the divorce/case does not mean that all matters related to the case have concluded. Rather, the entry of a Court Order finalizing the matter is only a Court decision (or approval of an agreement) as to how all matters related to the case will be handled.  Each Court Order contains provisions which must then be enforced in order to effectuate the decision.  In many cases all provisions are carried out without issue.  However, in the event either party fails to comply with the terms of the Court Order, mechanisms exist to gain an individual’s compliance.

The Court can intervene after a party alleges noncompliance by the opposing party. Such an action can be initiated by filing a Motion for Rule to Show Cause (commonly referred to as a “contempt” motion) notifying the Court of the issue.  If the Court finds that the actions of one of the parties rises to the level of a contempt citation, a variety of penalties exist to punish the past actions and encourage future compliance with the Court Order.  Parties would be well-advised to seek the advice of counsel in determining how to best proceed with the enforcement of a Court Order as the remedies vary based upon the issue presented as well as the nature of the non-compliance itself.

Enforcement of Child Support. Pursuant to Indiana Law, there are potential civil and criminal penalties for the nonpayment of child support; failure to make support payments can have serious ramifications. If the prosecutor chooses to go forward with criminal proceedings, the charges can rise to a Class C Felony, punishable by 2-8 years in prison conceivably, for the nonpayment of support in excess of a statutorily-defined amount. As the payee of a support order, you may request the Court exercise its power to hold the child support payor in contempt.  This can result in a variety of potential orders, including that the contemptor pay the other parent’s attorney’s fees for any and all costs associated with maintaining or bringing the action; order that the contemptor perform community service; issue a warrant for the individual’s arrest for failure appear to show cause for the nonpayment of support; suspend the individual’s driver’s license; intercept tax refunds to pay against past-due support; and attach interest to a delinquent support balance.   In exceptional cases, the Court can incarcerate a non-payor of support; however, rarely are parties jailed when found to be in civil contempt. Frequently, this is counter-productive as that person stands to lose their employment and become further delinquent on his/her child support payments.

Be aware, however, that the Court must consider whether the acts of the non-payor are willful; if the circumstances under which this person is not paying are beyond their control, the Court may not believe a contempt citation is proper.

Enforcement of Real Estate / Property Issues.  If an unpaid obligation remains from a divorce, in lieu of seeking remedies as a contempt action, another option to explore would be to obtain a money judgment against an opposing party and enforcing it through regular collections proceedings.   However, this change from divorce obligation to money judgment, generally, removes the contempt aspects and simply turns the debt into money with statutory interest and the ability to collect through wage and bank garnishments.  Obviously, when the terms of the decree are not strictly financial, the option to convert to a money judgment is not appropriate.    For example, if the parties agree to refinance a mortgage into one party’s name and that person subsequently does not qualify for the same, the third party (the creditor) cannot be ordered to comply with the Court Order. Therefore, the remedy requested will likely be to modify the terms of the Decree, and not to find the party in contempt.  Additionally, issues exist when a party is unable to sell a home within a set timeframe due to the issues in the housing market, effectively frustrating the intentions of the divorce decree but not through the fault of either party such that a contempt award would be proper.

Self Help.  One common (and tempting) misnomer is to withhold parenting time as a response to a failure of the other parent to pay child support or that one party may withhold child support due to the other parent’s failure to allow for regular parenting time. Such actions risk the wrath of the Court – these are issues for which consultation with counsel is imerpative.  Before undertaking anything that a Court could deem violative, all the risks associated with this must be considered.  are inappropriate and deemed “self help” by the Courts. It is imperative that parties in family law cases understand that only the Court may enter sanctions for a violation of Court Order. Further, one party retaliating against the alleged contemptor will not likely bode well in front of the Judge.

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs. If you have questions or concerns regarding divorce, custody, support, or any other family law concerns contact our firm at 317.DIVORCE or  visit our website at www.hzlegal.com.

Happy Holidays from H&Z !!!

 

The Twelve Days of Divorce

For a full-text version of the article, "Twelve Days of Divorce," please visit the following link:

http://www.huffingtonpost.com/lois-tarter/the-twelve-days-of-divorc_b_2323503.html

Lakers' Guard in Bizarre Custody Fight

Steve Nash, a guard for the LA Lakers, is currently in litigation with his former Wife over her proposed relocation with the parties’ children.  The parties’ divorce was reportedly finalized in Arizona in 2005. Since that time, the parties’ three (3) children have resided primarily with their Mother in Arizona despite Nash’s subsequent move to California to play with the Lakers. Now, the children’s Mother has proposed that her and the children relocate to be in the same city as their Father, to which Nash is reportedly objecting.

Typically, in relocation cases, a party will object to a proposed move wherein the children are forced relocate to a city where the objecting party does NOT reside.  The basis for the objection in such a situation is very often the impact the proposed move will have on the parent/child relationship due to the newfound distance and, thus, difficulty to exercise parenting time and remain involved in the children’s lives.  Hence, it is “bizarre” to hear of an objection to a proposed relocation into the city of the objecting parent.  It may be that the basis of Nash’s objection lies in his desire for his children to have consistency in their lives and a wish that they remain in the same school, community, support system, etc.  Though there are no reports found as to why he objects to the same.

 

Under Indiana law, if a parenting time or custody order exists and either party intends to relocate his/her residence, that person must file a Notice of Intent to Relocate with the Court 90 days prior to the intended move. The opposing party will then have 60 days in which to file a formal Objection.  If the opposing party objects, the matter is set for a hearing on the proposed relocation. It is important to note that Indiana law recently changed, and there is no longer a distance requirement, for example, that the move be over 100 miles. Rather, under the current law, parties are required to file the Notice of Intent to Relocate for ANY proposed move – regardless of if the move is across the street or across the country. 

For a full-text copy of the article please visit:

http://www.latimes.com/sports/lakersnow/la-sp-ln-steve-nash-embroiled-custody-battle-20121203,0,2599349.story

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs. If you have questions or concerns regarding divorce, custody, support, or any other family law concerns contact our firm at 317.DIVORCE or  visit our website at www.hzlegal.com.

Supreme Court to Hear Two Cases Concerning Constitutionality of Gay Marriage

For a full-text article, please visit the following link:

http://online.wsj.com/article/SB10001424127887324640104578165363433361742.html