- Issue: Father argued the trial court failed to deduct half of his Federal Insurance Contributions Act (FICA) taxes from his self-employment income, as allowed under Indiana Child Support Guideline 3(A)(2).
- Ruling: The court agreed this was an error. Self-employed individuals pay FICA at 15.3%, double the 7.65% rate for employees, so half of this payment should be deducted from weekly gross income.
- Takeaway: Courts must adjust income calculations to reflect the higher tax burden on self-employed parents.
- Resource: Indiana Child Support Guidelines(https://www.in.gov/judiciary/rules/child_support/) – See Guideline 3(A)(2) for details on income calculations.
- Issue: Father took significant depreciation deductions ($49,715 in 2017 and $89,414 in 2018) on his commercial rental properties, which the trial court added back to his income entirely.
- Ruling: The appellate court upheld this, noting Father did not distinguish between types of depreciation (e.g., straight-line vs. accelerated) at trial or argue they were necessary expenses for producing income. His testimony that the properties were long-term investments supported adding them back.
- Takeaway: Depreciation is not automatically deductible for child support; it must be tied to “ordinary and necessary expenses” for income production. This is generally how it is held, however, there is case law in Indiana where under special circumstances the depreciation can be deducted. See Glass v. Oeder, 713 N.E.2d 413 (Ind., 1999).
- Resource:
- Issue: The guidelines assume a 21.88% tax rate, but Father paid 38.47% (29.5% federal + 8.97% New Jersey state). He sought an adjustment, which the trial court ignored. Also see Bojarb v. Bojarb., While there was transfer granted on this case, it was not granted on the tax effect in child support.
- Ruling: In Wierks, the court remanded this issue, requiring the trial court to consider Father’s higher tax rate and decide if an adjustment is warranted.
- Takeaway: Courts have discretion to deviate from the assumed tax rate when evidence shows a significant difference.
- Resource: [Child Support Guideline 1 Commentary](https://www.in.gov/judiciary/rules/child_support/) – Explains flexibility in tax adjustments.
- Issue: Father’s voluntary retirement contributions ($54,000 in 2017, $55,000 in 2018) were added back to his income, despite tax benefits and no intent to hide income.
- Ruling: The court upheld this, emphasizing that voluntary contributions, unlike mandatory ones, do not reduce gross income for child support purposes.
- Takeaway: Parents cannot lower child support by choosing to save for retirement, aligning with the “total income approach.”
- Issue: Father argued his higher cost of living in New Jersey (20-24% more than Indiana) justified a downward adjustment, supported by online calculators and testimony.
- Ruling: The trial court’s refusal to adjust was deemed “clearly erroneous” since the evidence was undisputed, and Father had always lived in New Jersey.
- Takeaway: Courts must consider significant, non-speculative cost-of-living disparities.
- Resource:
-It must be noted that Mother did not object to Father’s evidence regarding the cost-of-living difference.
- Another issue may be raised if a party moves to a different state while under a current support order. Here, the court emphasized that Father was a lifelong resident of New Jersey. This may give a court an out to argue against considering the cost of living in the event someone under a support order moves, like to follow a new significant other or some other reason.
- Issue: Father, an independent contractor, contested an income withholding order (IWO) applied to his brokerage firm earnings.
- Ruling: The court affirmed the IWO under Indiana Code § 31-16-15-0.5, as the firm owed him income, and he didn’t seek a statutory exception.
- Resource: Indiana Code § 31-16-15-0.5(https://iga.in.gov/legislative/laws/2021/ic/titles/31-16-15-0.5) – Details income withholding rules.
WHY IS THIS IMPORTANT?
This article is a result of my recent experience involving unmarried couples purchasing homes together only to end their relationship and wind up in court to resolve the issues. Most people involved are surprised as to what occurs when they end up in court. The cases I have seen are a result of the title company presenting the deed to the parties as joint tenants with full rights of survivorship as opposed to tenants in common. In every one of these cases, the parties involved did not request the deed to be prepared as joint tenants and, in fact, had no idea what it meant. The language of the deed was decided by the realtor, the title company, or the attorney hired by the title company. If the property is purchased with unequal contribution between the parties and the property is titled as joint tenants, the person supplying more of the contribution is not entitled to his or her additional money back in the event the property is sold. As an example, an unmarried couple obtain title in a house with one party providing $50,000 as a down payment and the other providing $5,000. The parties then go their separate ways. The person who put down the $50,000 does not receive in the sale any more than the person who put down the $5,000. If this is what they intended, then this is okay, but that may not be the case. The party who contributed the higher amount often believes they should be receiving that share of the proceeds as reimbursement. This is why the language of the deed is so important.TITLE TO PROPERTY
In Indiana real property, other than that held by trusts or a married couple, is held as an estate in common (commonly known as tenants in common) and not as joint tenancy unless expressed specifically as joint tenancy and to the survivor of them (commonly known as joint tenants with full rights of survivorship). See I.C. 32-17-2-1 A deed to two (2) or more people as tenants in common means they all own an undivided interest in the entire property. Unfortunately, even though the law assumes tenants in common unless expressly indicated by the language otherwise, many people end up with a title including the unintended language.CONSEQUENCES OF TENANTS IN COMMON -vs- JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP
Each tenant is entitled to the use of the whole property but not to the exclusion of the others. This means one or more of the tenants may not exclude the other. If one excludes another, the person who excludes the other(s) can be made to account for the value or income from the property. A cotenant also must account to the other cotenant(s) for any rents, profits, or other in-kind payments. See I.C. 32-30-9-1 If one tenant makes improvements to the property, that tenant is not entitled to recover that improvement in the event the parties split. See Harry v Harry, 26 N.E. 562 (Ind., 1891). If furnishings are added to the property, that raises another issue. The division of the real and personal property, if they cannot agree, goes through a process called partition. See I.C. 32-17-4-1. The major difference between the two (2) types of title is if you take the example above where one party puts in substantially more money than the other, if held as tenants in common, then the parties would receive their original investment back out of any sale, assuming the property did not go down in value. If the property is held as joint tenants with rights of survivorship, the parties share the proceeds equally and the party who paid the larger share of the down payment receives no more than the person who paid little or nothing. Another situation is one where the parties intend to marry, or one promises to marry. In Indiana, a person cannot be sued for breach of promise to marry. For example, one party says I will marry you, but we need a house. The other party then purchases the home, and the title is placed in their names as joint tenants with rights of survivorship. If they do not marry, Indiana does not allow a suit for breach of promise to marry. See I.C. 34-12-2-1. Therefore, both parties are entitled to an equal division of proceeds from the sale of the home.IF YOU MARRY
If the parties do marry what happens? The division of the house is then divided pursuant to divorce law. The court can consider the contribution of the parties and may award a majority to the person placing the down payment. The title to the property does not change to entireties property regardless of whether it is titled as tenants in common or as joint tenants.SUMMARY
If the property is held as tenants in common, then the person who contributes the most toward the purchase receives their contribution at the sale. You should have a written document, much like a prenuptial agreement in a marriage, which sets out how the division will occur. You should address the sale, the contribution toward improvements, what each person pays (i.e., taxes, insurance, repairs, maintenance, mortgage), and how to account for these in the event of a division. This article does not address the possibility of a suit against the realtor, title company, or the attorney who drafts the deed. Prepared by Richard A. Mann of Mann Law, P.C. Attorneys at Law www.rmannlawoffice.com Follow us on Facebook: https://www.facebook.com/RAMattorneys?ref=hl Follow us on Twitter: https://twitter.com/RAMattorneys Follow our blog: http://ramlawoffice.blogspot.com/ Follow us on LinkedIn: https://www.linkedin.com/in/richardmannfamilylawattorney/ Follow us on Instagram: https://www.instagram.com/mannlawpc/ Also find us on Google Maps and Waze This blog does not constitute legal advice, nor does it establish an attorney client relationship. This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result. ]]>How to Get Business
If you want to develop mediation clients you can do so either by sending expensive notices to many lawyers, who if they are like me, I throw them in the trash. Marion County, has a program called modest means mediation. They are currently, I believe, 26 mediators accepting modest means mediation. The program pays you $100 per hour. When you are assigned to mediate you receive an order stating how much each party pays and then the program pays the difference up to $100 per hour for 3 hours. You should make it clear that at the end of 3 hours mediation stops or they pay your normal hourly rate. The program needs more mediators. Our office receives about 1 per week. 3 of the lawyers in our office do modest means. As a result of this, all of us have obtained repeat mediations from attorneys who previously did not know or use us. You should also market yourself on your web site. If you do not have a website you should get one. Most people do not use nor many of the younger generation do not know how to use the telephone book. We are seeing more pro se parties hiring us to mediate their cases. Do not advertise mediation as a specialty as it is not and to do so is a violation of the Rules of Professional conduct. See Rule 7.4 of the Indiana Rules of Professional Conduct.
You Have Been Appointed Now What
Once you Market yourself in the manner would you feel comfortable with, then you have to get down to the actual mediation process. When court appoints me or an attorney contacts me to say that they have agreed to use me, the first thing I do is let him know my hourly rate if they do not know and that I use a program called Doodle. Doodle is a calendar program where I send potential dates and times of mediation. You could break it down and information about 15 minutes or as large as all day. I typically send everyone dates and increments of eight hours. Some lawyers will not use the Doodle program as they just refuse to use anything that is easier and more technology. If that is the case, you can send out calendars by fax, e-mail pdf, or by mail. If you delay the scheduling of mediation then you increase the possibility that either your calendar fills up or one of the other parties calendar fills up before everybody completes their calendar circulates the calendar. I also typically do not start mediation before 9:30 a.m. There are two reasons for this: first I do not like to get up with the morning, and secondly, I find it if I scheduled an 8:30 or 9 at least one or all of the parties do not show up until 9:30 a.m. So many people are used to getting into the office at 9 or going to court at 9 plan their life around being able to be somewhere no earlier than 9 o'clock. If one party shows up sooner than the other party, I will typically start the mediation with them. At the end of this document, I have included the form we use which talks about asking for mediation statement and the rules of mediation. Once mediation starts I go through the standard language of warning them about confidentiality and whether or not they want to release information. A common issue in family law is what happens if you have non-party non-attorneys wanting to attend mediation. There is a case from another jurisdiction that is held that the confidentiality provisions did not apply as in mediation is meant for only the party and their attorney. I always inform the parties of this possibility before I discuss their case. I also tell them if the person becomes a problem I will make them leave. My policy is to allow them as many times they are making the decisions and if they do not hear everything that goes on they might kill the deal.
Technology Make it Your Friend
Another thing I find is that some people cannot afford to pay the mediator and pay their attorney to attend the full mediation. If you have attended a mediation, you are well aware that there are long periods of time where a party just sits in the room with their lawyer. I have lawyers who send their clients and then conference in when I am in the room with their client. To make this work, I use a program called Zoom, which is an encrypted ideo conferencing program. It allows you to video conference with up to 50 people at a time in 30 different video conferences therefore maintaining confidentiality. The video conferencing also allows you to have separate video conferences running at the same time with different people. These people have no access to the other party and leaves you as the moderator to move about the "rooms". The breakout section even allows you to call the lawyers out of the mediation somewhere other than where their clients are and talk with the lawyer separately. In one mediation, I conducted a mediation where one party was in Florida, the other in Georgia, one lawyer was at home and the other lawyer was at the office. I also find this is an excellent method when domestic abuse is an issue. You can show people the documents and exhibits. This is an excellent program even if the party don't have video capabilities, if they have a Smartphone they still do conference and even with a Smartphone with a working camera that can video conference. You can also display documents with this program to review and even allow them to modify it.
The Indiana Supreme Court adopted a rule that I recommended i.e. Rule 83(7) of the Indiana Rules of Trial Procedure. This rule allows agreements to be signed immediately rather than mailing because the long-distance situations, once the person talks to their boyfriend, girlfriend, wife, my mother, you expect that it could fall apart. I also use a program called DocuSign to have the people sign the documents if they do not have a scanner. I believe some smartphones now have the ability for someone to sign documents.
Since we are in a society of instant gratification I try to use that for my benefit. I have for years now I used a computer system, which linked with the big screen TV up on the screen so when someone says I think he or she makes $5 more a week you make the change and put it on the screen and show that low and behold we just wasted time finding out that the child support would change less than a penny. Otherwise, you would have to go to another room, print it out, and then bring it back to them. Technology is such now that at least with Windows 8.1 or 10 computers you can now do this with a dongle, the Microsoft version is Miracast. You can now buy a Samsung Smart TV 32" for $250 and if you have the windows 8.1 or 10, you can sync without additional software or a dongle. I also have printers that on my network that I can print to wirelessly, so if the party sends me some information or say we call a third party and have them email it to my phone, I can print directly to my secretary's printer.
I also use a West software that allows you to enter the debts and assets of the parties into a program and then assign assets and debts to either party. In doing so it automatically calculates the percentage division of property. I would not recommend buying this software unless you already have a family law practice otherwise it is not worth the cost. It is called FinPlan. Some attorneys have excel spreadsheets that work similarly but not as seamless. I am not good at excel so I stick with FinPlan which we use regularly in our practice. Using this method in conjunction with the big screen tv speeds the process and keeps people moving toward settlement.
At our office we have 2 wireless systems. One is for our office internal use and is totally separate from the other system. They are both secure except the one for use by others, we give out the password to the lawyers participating. This allows them to receive things from their office, to draft proposals and email to me for printing or showing to the other side and also allows them to work on other matters so they can bill their down time during mediation which should make their clients happier.
Other Tricks
For most mediations I do not receive a confidential statement. Most times I receive a cause number so I always look up the ccs on a case so I at least know what is going on. Now with e-file I have my secretary or paralegal download all the relevant documents if they have not been provided. I also always ask that the lawyers supply a draft in Word of a proposed settlement. If I do receive a confidential mediation statement and the ccs is not online, I try to determine by the cause number what the subject might be. For example, if it is an old DR case, I figure it is either college, custody, or support. If it is a new one then I assume it could be all of that. If it is a new JP case I assume it is support, maybe name change and sometimes custody. If it is an old JP, then I assume support, college, or custody. Also if I receive nothing, I have my secretary call the lawyers' secretaries and ask they fax over or email a copy of the pleadings and counter pleadings.
I have a standard report of mediator prepared for each case and before the parties leave, I give them a copy of what I am going to file. If the case is settled, I offer to file the settlement when I file the report of mediator. I think this is a best practice as I have heard nightmares of people changing their mind and lawyers not filing the agreement. I have just saved 4 envelopes and stamps over if I had mailed them all myself. Now with e-file you also need to ask to be removed or you will continue to get notices from the court.
]]>Senate Enrolled Act No. 292, effective July 1, 2019, amends the relocation notification law involving custody, parenting time and visitation of children. The bill will affect the following citations: IC 31-9; IC 31-14; IC 31-15; and IC 31-17. The changes the requirements of the notice of intent to relocate as well as the contact information a party is required to share with another party subject to the case. The new law will also require a response to a notice of relocation even if a party is not objecting. A summary of the changes are as follows:
Changes for Requirement of filing Notices of Intent to Relocate:
(1) The relocation has been addressed by a prior court order, including a court order relieving the relocating individual of the duty to file a notice;
(2) The relocation will either result in the decrease in the distance between the relocating individual’s residence and nonrelocating individual’s residence or result in an increase of not more than twenty (20) miles in the distance between the relocating and nonrelocating individual’s residence and allow the child to remain in the child’s current school. [1]
Changes to the time requirement to file a Notice of Intent to Relocate:
Relocating Individual is required to provide the following information:
Factors the court must take into account:
Upon notice of relocation and request for hearing, the court shall consider the following to either allow or restrain the relocation of a child and to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation, or support order:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the child.
Burden of Proof for Relocation:
A relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason. If the relocating individual meets the burden of proof under IC 31-17-2.2-5(e), then the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.
Gold v. Weather, 14 N.E.3d 836, Father appealed the trial court’s approving Mother’s relocation to Atlanta and denying his Motion to Modify. The Court of Appeals affirmed the trial courts order determining evidence supported finding that Mother demonstrated a good faith, legitimate reason for relocating out of the state with the child and that the trial court’s denial of father’s request to modify the physical custody of the child was not erroneous.
Father filed an objection to Mother’s Notice of Intent to Relocation and in response to the Objection the Court set the matter for hearing and Ordered Mother to appear. Mother filed a Motion to Continue, but the court denied the continuance based on Mother’s non-compliance. Mother appeared in court and the court reset the matter to allow the parties to negotiate an agreement. No agreement was reached. Father did not have parenting time after Mother’s move. Upon Father’s Motion, the trial court conferred with the parties and issued and ordered for Father’s Holiday Parenting Time. Father filed a motion to modify the child’s legal and physical custody. Father and Mother were unable to cooperate to work out a post-relocation parenting time plan, so on two occasions the court had convene the parties and issue two additional orders to designate Father’s spring break and summer parenting time.
That more than a year after the move the Court held a hearing on Father’s objection, accepting only evidence on the issue of whether Mother’s relocation was made in good faith and for legitimate reason. The court determined that Mother had satisfied her burden of proof. Before the Child’s fifth birthday, the trial court conducted a hearing on the remaining relocation issues, such as the child’s best interest and modification of custody. The Court issued a final order finding father had failed to establish that the relocation was not in the child’s best interest and denied Father’s Objection and his motion to modify physical custody. The trial court did modify legal custody to be shared joint. Additionally, as contempt sanction for Mother’s obstruction of Father’s parenting time, the court ordered Mother to pay $2,000.00 of his attorney fees.
In this case The Court of Appeals sided with the trial court that Mother provided evidence that her relocation was made in good faith and for legitimate reason (closer to family members and higher paying job). Father argued that Mother provided inadequate notice and her true reason for relocation was to inhibit his relationship with the child. The Court of Appeals agreed that Father’s evidence demonstrated that Mother moved prior to the court’s approval and that she withheld parenting time from December 2010 through December 2011. One of the factors the court can consider is noncompliance and obstruction of parenting time, IC 31-17-2.2-1(b)(4)[3]. “First, the relocation statute provides a distinct remedy for a parent’s failure to provide proper notice: the trial court may grant a temporary restraining order to prohibit the relocation or order that the child be returned to the non-relocating parent.” Gold v. Weather, 14 N.E.3d 836 (2014) (citing I.C. § 31-17-2.2-6(a))[4]. The Court of Appeals acknowledges that the trial court noted Mother “moved without appropriate notice and opportunity for [Father] to be accorded a hearing” However, Father did not request nor did the trial court independently order Mother to be compelled to return the child to Indiana pending the final hearing. Gold v. Weather, 14 N.E.3d 836 (2014) (citing Appellant’s App. p. 71).
IC 31-9-2-83, is amended to read as follows:
Sec. 83. “noncustodial parent”, for the purposes of IC 31-14-13-10, IC 31-14-15, IC 31-16-6-1.5, and IC 31-17-4, means the parent who is not the custodial parent.
Sec. 83 no longer applies to “noncustodial parent” as IC 31-14-13-10 will be repealed affective July 1, 2019.
It will also amend the definition of a “nonrelocating individual” for the purposes of IC 31-17-2.2. Previously, pursuant to IC 31-9-2-84.6, a nonrelocating individual meant an individual who has, or has filed an action seeking the following:
A major change in the law now requires notice when a paternity affidavit has been properly executed. A paternity affidavit can be properly executed two (2) ways. I. C. 16-37-2-2.1(c)(1) If executed through a hospital, the paternity affidavit must be completed not more than seventy-two (72) hours after the child’s birth.
(2) If executed through a local health department, the paternity affidavit must be completed before the child has reached the age of emancipation.
at the hospital within a
Sec. 84.6, will now read as follows:
“Nonrelocating individual”, for purposes of IC 31-14-13 and IC 31-17-2.2, means an individual who has, or has filed an action seeking:
IC 16-37-2 lays out the requirements for a proper paternity affidavit which may be signed by the mother and father of the child. The paternity affidavit is one of two ways to legally establish paternity. As previously worded Sec. 84.6 would require a “nonrelocating individual” to have a pending action with the court to receive notice. Under IC 16-7-2-2.1(p), an executed paternity affidavit establishes a man as the legal father of the child without any further proceedings by a court.
Sec. 84.7, is amended as follows:
“Nonrelocating parent”, for purposes of IC 31-14-13 and IC 31-17-2.2, means a parent of a child who has, or is seeking:
And does not intend to move the individual’s principal residence
Sec. 84.7 definition will now apply to matters of custody following the determination of paternity, court order or by paternity affidavit.
Sec 107.5., is amended as follows:
“Relocating individual”, for the purposes of IC 31-14-13 and IC 31-17-2.2, means an individual who has, or is seeking:
And intends to move the individual’s principal residence. The term does not include an individual granted visitation rights under IC 31-17-5.
Sec. 107.5 definition will also now apply to matters of custody following the determination of paternity.
Prior definition of Sec. 107.5: The court held in Dillon v. Dillon, 42 N.E. 3d 165, that mother attempted to argue that father failed to comply with IC 31-17-2.2-1(a). The Court of Appeals determined that father did not meet the definition of Sec. 107.5. This was because Father moved before Mother filed for divorce. The Court found that at the time of Father’s move he did not have custody nor could he have been “seeking custody” since he moved prior to the divorce being filed. There was no existing custody order. This issue continues unless they had filed a paternity affidavit which may occur if the child was born before the marriage to the parties. Basically, now if the parties are married and one moves under the statute neither are required to give notice. As we all know it is not usual for parties to separate for long periods of time without filing divorce, so a married parent is not required to give or receive notice even though parties with a paternity affidavit would.
IC 31-9-2-107.7 is amended to read as follows:
Sec. 107.7. “Relocation” for the purposes of IC 31-14-13 and IC 31-17-2.2, means a change in the primary residence of an individual for a period of at least sixty (60) days.
Sec. 107.7 definition will also now apply to matters of custody following the determination of paternity.
It is significant to note that IC 31-14-13-10[7], which required an individual who has been awarded custody of or parenting time with a child to file notice of intent to relocate with the clerk of the court and send copy of said notice to each nonrelocating individual in accordance with IC 31-17-2.2, is repealed effective July 1, 2019.
Senate Enrolled Bill 292, adds IC 31-14-13-10.2 which added to Indiana Code as a new section effective July 1, 2019:
Sec. 10.2, Except as provided in IC 31-17-2.2-4[8], and individual who has or is seeking
Shall at all times keep all other individuals who have or are seeking rights with the child (as described in subdivisions (1) through (3)) advised of the individual’s home address and all of the individual’s telephone numbers and electronic mail addresses. Information required by this section must be provided in writing, including electronically, to each individual entitled to the information.
This addition means that any individual who currently has or is seeking custody, parenting time, and grandparent’s visitation are required to keep every interested party informed, in writing, of their address, telephone number, and email address in matters of custody following the determination of paternity.
Additionally, Senate Enrolled Bill 292 adds IC 31-14-13-10.5, which is as follow effective July 1, 2019:
Sec. 10.5. The following must comply with IC 31-17-2.2:
(1) A nonrelocating individual.
(2) A relocating individual.
A nonrelocating individual and relocating individual as defined by IC 31-9-2-84.6 and IC 31-9-2-107.7 are required to comply with the notice of relocation statute.
IC 31-15-2[9] governs actions for dissolution of marriages. The bill amends IC 31-15-2-17 to read as follows:
Sec. 17. (a) To promote the amicable settlements of disputes that have arisen or may arise between the parties to a marriage attendant upon the dissolution of their marriage, the parties may agree in writing to provisions for:
(1) the maintenance of either of the parties;
(2) the disposition of any property owned by either or both of the parties; and
(3) the custody and support of the children of the parties; and
(4) the relocation of the children of the parties.
(b) In an action for dissolution of marriage:
(1) the terms of the agreement, if approved by the court, shall be incorporated and merged into the decree and the parties shall be ordered to perform the terms; or
(2) the court may make provisions for:
(A) the disposition of property;
(B) child support;
(C) maintenance; and
(D) custody;
as provided in this title.
(c) The disposition of property settled by an agreement described in subsection (a) and incorporated and merged into the decree is not subject to subsequent modification by the court, except as the agreement prescribes, or the parties subsequently consent.
IC 31-17-2.2 specifically deals with relocation and the requirements for the “relocating individual” and “nonrelocating individual”.
The following is added to the Indiana Code as new section:
IC 31-17-2.2-.05
Sec. 0.5. Except as provided in Section 4 of Chapter 2.2, and individual who has or is seeking:
Shall at all times keep all other individuals who have or are seeking rights with the child (as described in subdivisions (1) through (3)) advised of the individual’s home address and all of the individual’s telephone numbers and electronic mail addresses. Information required by this section must be provided in writing, including electronically, to each individual entitled to the information.
This means that anyone seeking rights needs to keep all parties informed, in writing, of their home address, all telephone numbers and all email addresses. Based up[on the language of the new requirement this would also include work telephone numbers and e-mail addresses. The notice has to be in writing. While not clear, I can tell you the terms “…including electronically,…) was meant to mean an electronic notice can suffice as a writing i.e. Facebook, Twitter, e-mail, etc.
A significant amendment comes to IC 31-17-2.2-1. Whereas IC 31-17-2.2-1 previously provided that a relocation individual must file a notice of intent to move with the court regardless of distance. The amendment now reads as follows:
Sec. 1. (a) Except as provided in subsection (b), a relocating individual must file a notice of the intent to move with the clerk of the court that:
(1) issued the custody order or parenting time order; or
(2) if subdivision (1) does not apply, has jurisdiction over the legal proceedings concerning the custody of or parenting time with a child;
and send a copy of the notice to any nonrelocating individual.
(b) A relocating individual is not required to file a notice of intent to move with the clerk of the court if:
(1) The relocation has been addressed by a prior court order, including a court order relieving the relocating individual of the requirement to file a notice; and
(2) The relocation will:
(A) Result in a decrease in the distance between the relocating individual’s residence; or
(B) Result in an increase of not more than twenty (20) miles in the distance between the relocating individual’s residence and the nonrelocating individual’s residence;
And allow the child to remain enrolled in the child’s current school.
(b)(c) Upon motion of a party, the court shall set the matter for a hearing to allow or restrain the relocation of a child and to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order. The court’s authority to modify a custody order, parenting time order, grandparent visitation order, or child support order is not affected by the fact that a relocating individual is exempt from the requirement to file a notice of relocation by subsection (b). The court shall take into account the following in determining whether to modify a custody order, parenting time order, grandparent visitation order, or child support order:
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation.
(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties.
(4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child.
(5) The reasons provided by the:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the child.
(6) Other factors affecting the best interest of the child.
(d) A court may order the relocating individual and the nonrelocating individual to participate in mediation or another alternative dispute resolution process before a hearing under this section:
(1) on its own motion; or
(2) upon the motion of any party.
(e) If a relocation occurs, all existing orders for custody, parenting time, grandparent visitation, and child support remain in effect until modified by the court.
(c) (f)The court may award reasonable attorney's fees for a motion filed under this section in accordance with IC 31-15-10 and IC 34-52-1-1 (b).
In Baxendale v. Raich, 878 N.E.2d 1252 (2008) the Supreme Court of Indiana held that IC 13-17-2.2-1 et seq. that the court may, but is not required to, order a change in custody, upon relocation. The trial court in this matter issued an order denying Mother’s request to relocate; continuing joint legal custody of child; and providing that Father would have physical custody if Mother continued to reside out of state, but if she “returns to Indiana she will the residential custodial parent”. It is important to note that this case was heard shortly before the addition of the new relocation statute in 2006.
IC 31-17-2.2-3Notice; information requirements
Sec. 3. (a) Except as provided in section 4 of this chapter, an individual required to file a notice under IC 31-14-13-10 or section 1 of this chapter must:
(1) send the notice to each nonrelocating individual:
(A) by registered or certified mail; and
(B) not later than ninety (90) days before the date that the relocating individual intends to move; and
(1) file and serve the notice on each nonrelocating individual who is a party to the action in accordance with the Indiana Trial Rule Procedure not later than thirty (30 days) before the date of the intended relocation or not more than fourteen (14) days after the relocating individual becomes aware of the relocation, whichever is sooner;
(2) send notice to any nonrelocating individual who is not a party to the action by registered or certified mail not later than thirty (30) days before the date of the intended relocation or not more than fourteen (14) days after the relocating individual becomes aware of the relocation, whichever is sooner; and
(2) (3) provide the following information in the notice:
(A) The intended new residence, including the:
(i) address; and
(ii) mailing address of the relocating individual, if the mailing address is different than the address under item (i).
(B) The home telephone number of the new residence.
(C) Any other applicable telephone number (B) All telephone numbers for the relocating individual.
(D)(C) The date that the relocating individual intends to move.
(E)(D) A brief statement of the specific reasons for the proposed relocation of the child.
(F) A proposal for a revised schedule of parenting time or grandparent visitation with the child.
(E) A statement that the relocating individual either does or does not believe that a revision of parenting time or grandparent visitation is necessary.
(G) (F) A statement that a nonrelocating parent must file an objection to a response regarding the relocation of the child with the court not later than sixty (60) twenty (20) days after receipt service of the notice.
(H) (G) The following statements:
(H) A Statement that all existing orders for custody, parenting time, grandparent visitation, and child support remain in effect until modified by the court.
(b) Except as provided in section 4 of this chapter, if the relocating individual is unable to provide the information required under subsection (a)(2) not later than ninety (90) days before the relocating individual intends to move, the relocating individual shall provide the information in the manner required under subsection (a) not later than ten (10) days after the date that the relocating individual obtains the information required to be provided under subsection (a)(2). However, the relocating individual must provide all the information required under subsection (a)(2) not later than thirty (30) days before the relocating individual intends to move to the new residence.
IC 31-17-2.2-4Risk or harm in disclosing information
Sec. 4. If a court finds that disclosure of the information required under IC 31-14-13-10.2 or section 0.5 or 3 of this chapter creates a significant risk of substantial harm to the relocating individual required to provide the disclosure or to the child, the court may order:
(1) that the address, the telephone number, or other identifying information of the relocating individual or child not be shared with other individuals or disclosed in the pleadings, other documents filed in the proceeding, or the final order;
(2) that the information required under section 3 of this chapter be maintained by the clerk of the court in a secure location separate from the pending case file;
(3) that the notice requirements under IC 31-14-13-10 or this chapter be waived to the extent necessary to protect the relocating individual or child from significant risk of substantial harm; or
(4) other remedial action that the court considers necessary to facilitate the legitimate needs of the parties and the best interest of the child.
IC 31-17-2.2-5Motion to prevent relocation; burden of proof
Sec. 5. (a) Not later than sixty (60) days after receipt of the notice from the relocating individual under IC 31-14-13-10 or this chapter, a nonrelocating parent may file a motion seeking a temporary or permanent order to prevent the relocation of a child. Except as provided in subsection (b), a nonrelocating parent shall file a response not more than twenty (20) days after the day the nonrelocating parent is served notice from the relocating individual under section 3 of this chapter. The nonrelocating parent’s responses must include one (1) of the following:
(1) A statement that the nonrelocating parent does not:
(A) Object to the relocation of the child; and
(B) Request the modification of any custody, parenting time, grandparent visitation, or child support order.
(2) The following:
(A) A statement that the nonrelocating parent does not object to the relocation of the child.
(B) A motion requesting the modification a custody, parenting time, grandparent visitation, or child support order as a result of the relocation.
(C) A request for a hearing on the motion filed under clause (B).
(3) The following:
(A) A statement that the nonrelocating parent objects to the relocation of the child.
(B) A motion requesting:
(i) A temporary or permanent order to prevent the relocation of the child; and
(ii) The modification of a custody, parenting time, grandparent visitation, or child support order as a result of the relocation.
(C) A request for hearing on the motion filed under clause (B).
(b) A nonrelocating parent is not required to file a response under subsection (a) if the parties have executed and filed with the court a written agreement resolving all issues related to custody, parenting time, grandparent visitation, and child support resulting from the relocation of the child. The agreement must include a child support worksheet to be signed by the parties and attached to the agreement, if the agreement results in a modification of support.
(c) A motion filed under subsection (a)(2) or (a)(3) must state whether the relocating individual and the nonrelocating parent have participated in mediation or another alternative dispute resolution process regarding the relocation of the child.
(b) (d)On the request of either party, the court shall hold a full evidentiary hearing to grant or deny a allow or restrain the relocation motion under subsection (a).of the child and to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order.
(c) (e)The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason.
(d)(f) If the relocating individual meets the burden of proof under subsection (c) (e), the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.
(e)(g) If the nonrelocating parent fails to file a motion response under subsection (a), the relocating individual who has custody of the child may relocate to the new residence.
IC 31-17-2.2-6Temporary order to restrain or permit relocation
Sec. 6. (a) If a nonrelocating parent files a motion under section 5 section 5(a)(3) of this chapter, the court, after notice and an opportunity to be heard or after compliance with Trial Rule 65(B), may grant a temporary order restraining the relocation of a child or order the child to be returned to the nonrelocating parent if the court finds:
(1) that the notice required under IC 31-14-13-10 or section 3 of this chapter was not served in a timely manner and the parties have not presented an agreement concerning a parenting time schedule; regarding the relocation of the child;
(2) that the child has been relocated without:
(A) the appropriate notice;
(B) an agreement between the parties; or
(C) a court order; or
(3) from an examination of the evidence presented at the temporary hearing, that there is a likelihood that, after a final hearing, the court will not approve the relocation of the child.
(b) The court may grant a temporary order permitting the relocation of the child pending a final hearing if the court:
(1) determines that the notice required under IC 31-14-13-10 or section 3 of this chapter was provided in a timely manner;
(2) issues an order for a revised schedule order that may be necessary for temporary custody parenting time, support, and grandparent visitation with the child; and
(3) reviews the evidence presented at the temporary hearing and determines that there is a likelihood that, after the final hearing, the court will approve the relocation of the child.
(c) If the court issues a temporary order authorizing the relocating individual to move, relocation of the child in its final judgment, the court must consider factors:
(1) other than; or
(2) in addition to;
the temporary relocation of the child when issuing a final order.
As a sample but not providing legal advice we have attached to forms which may be used. Of course, every case is different, and, in such matters, you should consult your attorney to determine your rights and responsibilities. One form is the Notice of Intent to Relocate and the other is the Response to the Notice. The law now requires that both forms be filed or served, if filing not required, upon the other party or parties.
Prepared by Richard A. Mann of Mann Law, P.C. Attorneys at Law with the assistance of Meagan Viklund, Certified Paralegal, www.rmannlawoffice.com
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[1] Upon motion from a party, the court shall set the matter for a hearing to allow or restrain the relocation of the child and to review and modify, If appropriate, a custody order, parenting time order, grandparent visitation order, or child support order. The Court’s authority to modify is not affected by the fact the relocating individual is exempt from filing a notice of relocation. [2] Currently, there are two ways to for non-custodial parent to object after notice of relocation has been received: “By filing a motion to prevent the relocation or by filing a motion to modify custody. Gold v. Weather, 14 N.E.3d 836 (2014) (citing T.L. v. J.L., 950 N.E.2d 779, 784 (Ind.Ct.App. 2011)), reh’g denied. See IC §§ 31-17-2.2-1, 5. [3] After 7/1/2019 it will be IC 31-17-2.2-1(c)(4), “Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual’s contact with the child. [4] After 7/1/2019, IC 31-17-2.2(a), will require a party to file a response rather than an objection. [5] Grandparent’s visitation [6] IC 16-37-2 [7] IC 31-14-13-10 [8] IC 31-17-2.2-4, the exception is if the court finds that the disclosure of the information creates a significant harm to the relocating individual or the child. [9] IC 31-15-2]]>The Marion County Small Claims Courts will become Courts of record on July 1, 2018. Indiana Code 33-34-1-3 provides:
(a) This subsection applies before July 1, 2018. The small claims court is not a court of record. A person who wishes to appeal the judgment of a small claims court entered before July 1, 2018, shall appeal the case to the circuit or superior court under IC 33-34-3-15.
(b) This subsection applies after June 30, 2018. The small claims court is a court of record. A person who wishes to appeal the judgment of a small claims court entered after June 30, 2018, shall appeal the case to the court of appeals in accordance with IC 33-34-3-15.1
Currently, under IC 33-34-3-15 all judgments in the Marion County Small Claims Courts are appealed to the Marion Circuit or Superior Court for a trial de novo, which means you can appeal and get a new trial. This was sometimes referred to as the “one free shot” because the parties had a new trial in the Superior Court and were not stuck with the evidence they presented or failed to present at the trial in the Marion County Small Claims Court. By making the change to a court of record, all judgments entered after June 30, 2018 by the Marion County Small Claims Courts will have to be appealed to the Indiana Court of Appeals. This means parties will be forced to create a record for appeal by objecting to evidence offered at trial and making sure they present all of their evidence. If you want to still have your “one free shot,” your small claims case will have to be tried and the judgment entered by the Court before June 30, 2018.
A Defendant to a suit filed against them in the Marion County Small Claims Court can request a jury trial in most cases. Pursuant to Marion County Local Rule, “A demand for trial by jury must be filed with the Court no fewer than ten (10) days after the first setting of the initial hearing.” Marion County Rule LR49-TP38-303. Once the Marion County Small Claims Courts become courts of record, the only way your case will be tried to the Marion Circuit or Superior Court is if you request a jury trial.
Due to these changes many parties are considering filing their cases in Marion Superior or Circuit Court rather than the Small Claims Courts.
Mann Law, P.C. Attorneys at Law, www.rmannlawoffice.com
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