Trial Court Erred Denying Father’s Petition

Case: In re the Marriage of: Christopher Neal Maddux v. Suzanne Marie Maddux
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it denied Father’s petition to modify custody.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2005. The Decree provided for Mother and Father to share joint legal custody of their two young children, with Mother having primary physical custody.

In the following years, there was a significant pattern of Mother alleging that Father abused the children, followed by a DCS or police investigation that found no substantiation to Mother’s claims.

In 2013, Father filed a petition to modify custody. A GAL report recommended a change of custody to Father, with Mother to have supervised parenting time pending the outcome of a psychological evaluation.

After a hearing, the trial court issued detailed findings and conclusions, but denied Father’s petition to modify custody. Father appealed.

The Court of Appeals reversed the trial court, noting that a reversal of a denial to modify custody is unusual. However, the Court essentially concluded that the trial court’s own findings of fact warranted a modification as a matter of law. For example, the trial court made a finding that Mother’s conduct was causing “irreparable harm not only to the Children’s relationship with Father but also to ‘their emotional wellbeing.” The trial court’s findings noted that Mother’s bad conduct was “continual” and “substantial and continuing.” But, after detailing Mother’s “audacious and successful attempts to alienate Father from the Children, the trial court concluded that such conduct does not warrant a change of custody.”

The Court of Appeals disagreed. “The trial court clearly erred in concluding that the Children’s best interests do not warrant a change in custody.” The order was reversed, and remanded with instructions to enter judgment on behalf of Father on the issue of custody and to undertake a new calculation of child support obligations.

To view the text of this opinion in its entirety, click here: In re the Marriage of: Christopher Neal Maddux v. Suzanne Marie Maddux

 

_________________________________________________________________________________

James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

Law Tips: Mediation from One Divorce Lawyer’s Perspective, Part 1

It’s my pleasure to welcome to Law Tips Bruce Pennamped, Carmel, Indiana, to share his particular expertise in mediations. He brings valuable pointers for minimizing your client’s regrets and preserving your professional reputation.

From a practitioner’s perspective what is the best way for a divorce lawyer to prepare for and work the mediation session?

In my view, it is to get the issues framed before you arrive at the session. The work should be done and the outcome communicated to the mediator prior to the 11th hour, i.e., the night before the session. The mediator’s job is not to sift through the discovery and/or “figure it out” for the parties. If left to those devices the process will be more cumbersome, frustrating and expensive than need be and, more often than not, produce some sort of buyer’s remorse after the fact.

According to Ira Daniel Turkat, PhD, Licensed Psychologist, Family Law Litigation Strategist, in an article published in the American. Journal of Family Law, Vol. 28, Number 3, Fall, 2014: “A recent Harvard Negotiation Law Review found in a five-year period more than 1,000 state and federal decisions reported in which mediation itself was the subject of litigation. (FN omitted). This should come as no surprise because it is not uncommon to hear an experienced mediator profess that, ‘one definition of a good settlement is when both sides are equally unhappy’ (FN omitted) or that ‘a truly good settlement is one that leaves everyone unhappy’. (FN omitted). Although not a universal viewpoint, if many start with the notion that a ‘good’ mediated agreement will produce up to I00 percent of clients unhappy with it, reducing settlement discontent would appear increasingly unlikely.”

So what, you may ask? The “what” is my exposure from a professional standpoint and your reputation as a mediator.

As I prepare for mediation I try to minimize the possibility of “settlement regret”. As Dr. Turkat posits: “The effort to prevent settlement regret begins by avoiding, eliminating, or minimizing those factors believed to increase risk for its development, when possible ….. first steps might include the following:

  1. Read your client well so that you don’t encourage adopting the wrong language or terms.
  2. Aim to create an agreement that ends conflict.
  3. Approach settlement as a means to an end and not as the primary goal.
  4. Reduce or eliminate unnecessary pressures to settle.
  5. Do not encourage a rush to an agreement at the expense of proper consideration.
  6. Approach unresolved issues with specificity over ambiguity.
  7. Do not advise silence on known issues of concern.
  8. Do not create terms that sound right but are unrealistic.
  9. Anticipate where things can go wrong and create terms to prevent that.
  10. Articulate how the other party could out maneuver the final version of the proposed agreement.” ld p. 128

_________________________________________________________________________________

We’ll take a break at this point to digest Mr. Pennamped’s introductory pointers. Next week he’s back with us at Law Tips to delve further into his mediation objectives and practices.

_________________________________________________________________________________

About our Law Tips faculty participant:
Bruce M. Pennamped, Cross, Pennamped, Woolsey & Glazier, P.C., Carmel, IN. Bruce limits his practice to Family Law. He earned his BS and JD from Indiana University. Among the programs and activities he devotes time to are:

  • Certified Family Law Specialist by and, Co-Chair of, Family Law Certification Board;
  • Fellow of the American Academy of Matrimonial Lawyers;
  • Serves on the Indiana Child Custody and Support Advisory Committee, a Committee created by statute to make recommendations to the Indiana Supreme Court on the Child Support Guidelines;
  • Chair, participant on numerous panels, and author of texts for Indiana Continuing Legal Education Forum;
  • Pro bono Volunteer and Attorney, Hamilton County Guardian Ad Litem Program.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, Sale/Featured Items0 Comments

Introduction to Criminal Copyright Infringement

By: Paul B. Overhauser Publisher: Indiana Intellectual Property Law News

Second Element: Infringement
The second element of a criminal prosecution for copyright infringement requires that the government prove that the defendant infringed upon the holder’s rights in its copyrighted intellectual property. Although the term “infringement” itself is not specifically defined in the copyright statute, 17 U.S.C. § 501(a) provides that: “[a]nyone who violates any of the exclusive rights of the copyright owner as provided by [17 U.S.C. §§ 106 to 118] . . . is an infringer of the copyright.” Thus, the concept of infringement is defined by reference to the exclusive rights conferred on a copyright owner by 17 U.S.C. § 106. Those exclusive rights include the right to display or perform the work publicly, as set forth in 17 U.S.C. § 106(4)-(5), along with the right to reproduce and distribute copies of the work, as set forth in 17 U.S.C. § 106(1) and (3). The unauthorized exercise of these rights will constitute an act of infringement and will give rise to a civil infringement claim by the copyright holder and perhaps prosecution by the government.

Generally, infringement is established by evidence of copying. However, because copying often cannot be directly attributed to the defendant, copying can be established indirectly through evidence that the defendant had access to the original copyrighted work, and that the defendant’s work is substantially similar to it.

With regard to prosecution for alleged infringement of copyrighted computer programs, a court must also decide separately whether or not the copies at issue were lawfully made under 17 U.S.C. § 117, which authorizes such duplication in certain circumstances. Thus, unlike copies of other types of copyrighted works, copies of computer programs are not automatically presumed to be unauthorized.

The concept of infringement includes a host of statutory exceptions to the exclusive rights created by copyright law, many of which involve conduct that is already specifically exempted from criminal liability by the heightened proof requirements of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319. Other limitations, such as the fair use doctrine and the first sale doctrine, may also apply to criminal cases.

Scroll down for Part 1 in Paul’s Criminal Infringement series.

______________________________________________________________________________________

By: Paul B. Overhauser, Publisher, Indiana Intellectual Property Law News

Overhauser Law Offices, LLC provides intellectual property services including patents, trademarks, copyrights and infringement litigation. Whether you’re an entrepreneur launching your first invention or a corporation looking for a litigation specialist, we have the legal experience to meet your goals.

To learn more about how Overhauser Law Offices can help you, browse our website to meet our lawyers and peruse our practice areas.  Then contact us, and we’ll put our expert team to work for you.

© 2015

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Intellectual Property Blog, News0 Comments

Law Tips: Immigration Law Meets Family Law – Sweet Child of Mine

Indiana enjoys a wealth of variety and culture, due in large part to the immigrant community that plays a vital role here. However, a large immigrant community also brings complex situations that can arise as immigration law intersects with state and local statutes and practices, especially in the area of family law. Dallin Lykins, immigration law and family law practitioner with Lewis & Kappes, P.C., Indianapolis, offers Law Tips readers a few pointers in the child custody and support area:

Any time a client appears to have immigration ramifications or concerns, a wise practitioner would consult with an experienced, immigration law attorney to help resolve or prepare for any immigration issues. Current immigration law is codified in the federal Immigration and Nationality Act (“INA”). While most family law practitioners will not find it necessary to keep a copy of the INA in their legal libraries, a basic understanding of immigration law can help a practitioner spot legal issues involving immigration concerns, improve strategy, and avoid pitfalls.

Sweet Child Of Mine: Child Custody, Support and Travel
Indiana courts are primarily concerned about the best interest of the child or children when determining domestic and family law matters. Understanding how immigration issues may affect the relationship between a parent and child can be valuable for a family law practitioner.

Paternity
The immigration issues can begin as early as the birth of an immigrant’s child. Many hospitals require a social security number in order to list the parent’s name on the birth certificate of a child, and so many immigrant fathers may not be listed on the birth certificate. This can cause problems later on with both family and immigration matters. Fathers should take the necessary steps to remedy this error as soon as they can. If the father has not established paternity and is deported before doing so, this can be a serious problem, because it can be difficult to have communication with the individual or have him appear at any future hearings. *See update below regarding certain Indianapolis hospital policies.

Family law practitioners should make sure they understand the process in Indiana in order to establish paternity and do everything possible to do so in order to avoid confusion and frustration if a parent is later deported from the United States. Once a parent is deported from the United States, immigration laws require the individual remain outside the United States for a long period of time (five, 10, or 20 years). See INA §212(a)(9)(A).

Custody and Child Support
Some local judges or magistrates do not spend much time determining or considering the legal status of an immigrant in the United States. It should be noted, however, that cases do exist where a parent’s immigration status has been a component of a judge’s decision in determining custody. See Rico v. Rodriguez, 120 P.3d 812 (Nev. 2005). Government agencies (such as Department of Children’s Services, DCS) may take it into account. It is important to be able to correctly inform DCS of the different types of status and what they might mean to a family (i.e., when can someone apply for a driver’s license).

While immigration status may be considered in a custody determination, it should not automatically preclude an individual from being granted physical or legal custody of a child. For example, Indiana law does not make specific statutory requirements regarding immigration status in a guardianship filing, but the person’s immigration status can play a factor in the judge’s decision. Since there are so many different types of statuses of immigrants in the United States, the fact that someone is not a lawful permanent resident or citizen of the United States does not automatically signify the person cannot work and support a child here in the United States. Further, it does not mean the immigrant will automatically be deported from the United States. It also does not mean the individual will not be a suitable parent or guardian.

Child support can also have importance in the immigration context. For example, an individual seeking citizenship in the United States is not eligible to become a U.S. citizen if there is evidence she “willfully failed or refused to support dependents.” 8 C.F.R. §316.IO(c)(3)(i). A failure to pay child support can also affect a lawful permanent resident’s ability to travel or renew their Lawful Permanent Resident card. In determining child support some individuals may be hesitant to include employment if they are not employed with a legal social security card. Normally, reporting accurate income on a child support worksheet will not create immigration consequences, but anytime someone is working without lawful permission there can be serious immigration issues in the future. For example, if someone is found to have committed identity fraud or identity theft they can be deported from the United States or prevented from receiving many immigration benefits in the future. Also, fraudulently filling out an I-9** may lead to serious negative immigration consequences, including deportation.

Travel
A concern that often arises in dissolution proceedings is the fear one parent may travel outside of the United States with the couple’s child. In many instances, the dissolution decree or preliminary agreement should contain clauses requiring parents to sign off on passport applications or to give a child’s passport to the custodial parent or neutral third party. In order for a U.S. citizen child to travel outside the United States, the child must have a passport. See Department of State’s Web site, Click Here.

If the child is under the age of 16, either parents or guardians must be present when the child applies. If one of the parents cannot be there (perhaps because of deportation), the parent who cannot be present can sign a form consenting to the application of a passport. Id. If consent from the other parent is not possible, the parent accompanying the child can prepare and sign a form that allows the passport application to be processed. Id.

A parent’s travel with a child should be discussed and analyzed while considering the parent’s immigration status. Certain protections may need to be taken and included in agreements or decrees in order to protect the child and ensure strong cooperation and communication between the parents.

In Conclusion
Family and domestic matters can be complicated, time-consuming, and stressful. When immigration issues are added into that mix, they can become overwhelming. Having an understanding of and appreciation for immigration concerns will help attorneys make clients feel more comfortable and confident to discuss immigration matters that sometimes can be awkward, frightening, and uneasy to talk about with others.

While it is always important to be able to consult with a knowledgeable immigration attorney, family law attorneys in Indiana will become much better practitioners if they can adeptly discuss and confront immigration matters with their clients and help them consider aspects of their case they would not have thought of otherwise.

*Regarding issues with hospitals not adding a father’s name to the birth certificate when no social security number is present, I am informed that many hospitals in Indianapolis no longer prevent the father from being on the birth certificate. The person may want to contact an attorney if this happens.

**Form I-9: Employment Eligibility Verification Form. You may obtain electronic copies of English and Spanish versions of Form 1-9 from the U.S. Citizenship and Immigration Services (USCIS) website at wvvw.uscis.gov.

_________________________________________________________________________________

We greatly appreciate Mr. Lykins participation in Law Tips. As a member of our faculty for the Immigration Law You Really Need To Know Seminar, Dallin Lykins covers a broad spectrum of these current issues for family law practitioners. To schedule your Video Replay or OnDemand CLE session, Click Here.

_________________________________________________________________________________

About our Law Tips faculty participant:
Dallin Lykins grew up on a farm in Azalia, Indiana. He earned a B.A. in Communications from Brigham Young University in Provo, Utah. After graduating from BYU, Dallin worked as a speech writer and communications specialist in Washington, D. C., and later graduated from Indiana University Maurer School of Law in Bloomington, Indiana. He first began practicing with a small immigration law firm, and he joined Lewis & Kappes, P.C., Indianapolis, in 2012 as a member of the firm’s immigration law and family law groups. Aside from handling any type of immigration case, Dallin has worked as a certified domestic relations mediator in the state of Indiana for more than six years. He has presented CLE and other courses on immigration law in various settings.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, Sale/Featured Items0 Comments

Having trouble logging in?Visit our Support section.

Subscribe

Contact Us

ICLEF
230 East Ohio Street
Suite #300
Indianapolis, Indiana 46204
Phone: 317-637-9102
Fax: 317-633-8780
E-mail: iclef@iclef.org