Trial Court Rules Mother & Child can Move to Georgia – Father Failed to Show it was Not in Childs Best Interest

Case: Ryan Gold v. Starr Weather
by Mike Kohlhaas, Bingham Greenebaum Doll (with thanks to Tamara McMillian)

HELD: The trial court acted within its discretion when it granted Mother’s request to relocate because her decision was made in good faith and for a legitimate purpose, and that Father failed to show the move was not in Child’s best interest. The court also affirmed the trial court’s ruling denying Father’s motion to modify physical custody because it would not have been in Child’s best interest.

FACTS AND PROCEDURAL HISTORY:
Mother and Father had Child in August 2008. The two had a tumultuous parenting relationship. Mother was Child’s sole legal and physical custodian.

On May 23, 2011, Mother emailed Father her intent to relocate to Georgia with Child.  Father immediately emailed Mother his discontent with her attempt to relocate and stated that Mother failed to comply with the Indiana relocation statute. Mother noted family support in Georgia from her relatives familiar with Child.

On June 17, 2011, Mother filed her official notice of intent to relocate to Georgia as of July 1, 2011, citing family relocation and job opportunities. Early July 2011, Mother relocated with Child to Georgia without court approval and obtained a higher paying nursing job than she held in Terre Haute, Indiana. Father filed a Verified Emergency Motion for Rule to Show Cause and Objection to Notice of Intent to Relocate Residence against Mother’s relocation. December 28, 2011, Father filed a modification for both legal and physical custody of Child. The trial court held three hearings over a two year period.

First, the trial court held a show cause hearing for Mother to prove why she should not have been held in contempt for unilaterally relocating to Georgia with Child. Mother appeared and the court reset the hearing for the parties to attempt to negotiate a resolution. Mother and Father failed to reach an agreement.

In August 2012, more than a year after Mother moved to Georgia with the child, the trial court conducted a hearing solely on whether Mother’s move was in good faith and for a legitimate reason. Mother satisfied the burden for both.

Following a July 2013 hearing two years after Mother and Child relocated to Georgia, the trial court granted Mother’s request to relocate with Child, held Father failed to demonstrate that the relocation was in Child’s best interest, and denied Father’s motion to modify physical custody. The Court, however, modified legal custody between Mother and Father from Mother having sole legal custody to Father and Mother sharing joint legal custody. Further, the trial court ordered Mother to pay $2,000.00 of Father’s attorney’s fees for impeding his parenting time. Father appealed.

The Court of Appeals analyzed the evidence Mother presented and noted that there was no explicit criteria for establishing the “good faith” and “legitimate purpose” requirements. Mother had an on-going and substantial familial network in Georgia and perhaps better employment opportunities there. The Court of Appeals reasoned that Mother’s evidence that she wanted to be closer to her family outweighed Father’s assertions that Mother desired to move to thwart his parenting time with Child. Further, Father failed to request and the trial court did not independently order Mother to return to Indiana with Child pending the resolution of the relocation issues. Instead, the court appropriately sanctioned Mother when it ordered her to pay a portion of Father’s attorney’s fees.

Since Mother’s request to relocate was in good faith and for a legitimate purpose, the Court of Appeals then reviewed the best interest factors. It determined that Father failed to establish that Mother’s move was not in Child’s best interest. Father presented evidence to suggest Mother’s relocation would negatively impact Father’s parenting with Child, including the 600-mile distance between Father’s residence and Mother’s proposed new home, an eighth-hour one way drive, and Father’s minimal financial resources. The Court of Appeals affirmed the trial court’s conclusion that Father’s relationship would not be significantly negatively impacted by any of these factors because Father could utilize online communication to supplement any diminished in-person parenting time. Mother was the primary caregiver of Child and maternal family maintained a caregiving relationship with Child. The appeals court further reasoned that the trial court had discretion in weighing the evidence presented for each best interest factor.

The trial court’s granting of Mother’s relocation request was affirmed.

To view the text of this opinion in its entirety, click here: Ryan Gold v. Starr Weather _________________________________________________________________________________

The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
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Law Tips: Preventing Financial Exploitation of Your Elderly and Disabled Clients

Welcome back. Thanks to the generous contributions of Jim Voelz, Voelz Law Firm, Columbus, Indiana, Law Tips is looking into the “hidden epidemic” of financial exploitation of the elderly and disabled. This week Jim’s counsel delves into advising clients on gifting of assets and limiting their financial power of attorney. He will also recommend protective steps clients can take to avoid being financially exploited.      

To Gift Or Not To Gift:

Elder law attorneys are frequently asked to give advice about whether the client’s home and other assets should be gifted. Many of our clients and their families know about the high costs of care in the home, an assisted living facility, and a nursing home. They have heard about other folks who have lost their homes, farms, and other assets to pay for the costs of their care, and they do not want that to happen to them. So how are we going to help these clients, and what are we going to advise them to do about their concerns?

I want to focus on the situation where you are asked to give your client advice about gifting when your client is elderly with no immediate health issues that would require care at home, in an assisted living facility, or in a nursing home at any time in the foreseeable future. The issue is whether the client should gift their home and/or other substantial assets now to protect them.

One  option is to advise the client to gift the home and/or other assets now in the hope of getting past the five year lookback from the date of a future Medicaid application that requires the reporting of uncompensated transfers that give rise to a period of ineligibility to receive Medicaid benefits (“transfer penalty”). An argument for this could be that gifts that are made more than five years prior to the filing of a Medicaid application are protected and have no effect on Medicaid eligibility.

What advice should you give?

Your advice should protect the best interests of your client. I suggest that you review in detail all of the potential risks and disadvantages of gifting with your client.

(Law Tips note: The Voelz Law Firm outlines issues for clients in a firm letter describing the potential problems that can arise as a result of gifting assets, such as estate planning problems, loss of control of property and tax consequences. The letter is shared during Jim’s CLE presentation.)

We keep copies of this letter in our conference rooms, because we use these letters often. We give a copy to our client and a copy to each of the family members or other persons who are attending the conference with the client, and we keep a dated copy in our client’s file as documentation of our advice.

After this review, in almost all of our cases, our client decides not to make any gifts. However, if a client still wants to make a gift of their home or other assets, then we usually ask our client to think about what we discussed and schedule a second appointment to have further discussions. If, at that second appointment, the client still wants to gift, then we meet with the client alone, if other family members or others attend this conference, to make sure this is really what our client wants to do without being influenced by other persons who are attending the conference.

We always advise our clients to have a Financial Power of Attorney in place, and we have discussions with our clients about whether they should include certain provisions in their Financial Power of Attorney that could lead toward protecting some of their property if it would make sense to qualify them for Medicaid or other governmental benefits, such as the VA Aid and Attendance Pension, in the future. (See Indiana Code 35-46-1-12.)

If an attorney prepares a Financial Power of Attorney that gives the attorney-in-fact unlimited and unrestricted authority to gift or loan in unlimited amounts, then these provisions can subject your client to the risk of being financially exploited by the attorney-in-fact.

I would suggest the following to reduce or eliminate this risk:

1. Prepare power of attorney provisions that require other persons to agree before gifting or loaning can be done and/or that require the prior approval of an attorney in conjunction with a plan to qualify the client for Medicaid or other governmental benefits.

2. Meet with the client and with the attorney-in-fact to explain the power of attorney and its provisions. This will serve to educate the attorney-in-fact and will also provide an opportunity for you to introduce yourself to the attorney-in-fact, as your client’s attorney, so that you will be consulted in the future.

3. Provide the attorney-in-fact with instructions on how to properly use the power of attorney.

Advice For Your Clients On How To Avoid Being Financially Exploited

An elder law attorney should also be able to advise a client about how to avoid being financially exploited. Here are some suggestions that could be made to a client:

– You should establish your safety net of trustworthy and reliable persons. Sign a Power of Attorney that appoints a person who is 100%trustworthy and who will always act in your best interests. Do this before you have a serious health issue or impairment. If you do not have such a person, then appoint a bank or credit union who has a trust department who will agree to be appointed to handle your financial affairs, if necessary.

– You should establish relationships with experienced professionals who have a good reputation such as an accountant, financial advisor, and attorney and consult with your appropriate advisors before you engage in any questionable transaction.

– Sign-up for the “do not call” list to help stop telephone solicitations at www.in.gov/attorneygeneral (Register For Do Not Call). This does not eliminate all telemarketing calls so do not talk to unknown persons who are trying to sell or give something to you.

– Do not keep a large balance of money in your checking account, arrange for direct deposit of your income, and set-up automatic bill pay for your utility bills and other regular expenses.

– Do not hire caregivers or others who would work in your home without a background check.

– Do not leave your mail in an unsecured mailbox and shred documents with personal identifying information.

– Do not give any stranger or new acquaintance your birth date, Social Security number, or any information regarding your accounts or financial information.

– If you lack mental capacity or become impaired, then allow someone who is 100% trustworthy and reliable and who will always act in your best interests to take over management of your financial affairs.

– Report any questionable request or solicitation to your trusted relative or person.

– Report any suspected or attempted financial exploitation to law enforcement and/or to the Adult Protective Services officer in your area.

 

Thanks again to Jim Voelz for sharing his expertise in the prevention of financial exploitation of elderly and disabled clients.  If you missed his first Law Tips column, you will find it below.  For a comprehensive update in elder law from an outstanding panel, check out the 2014 Elder Law Institute on October 9-10, 2014.

_________________________________________________________________________________

About our Law Tips faculty participant:
James K. Voelz, Voelz Law, LLC, Columbus, Indiana. Mr. Voelz ‘s law practice primarily involves estate and disability planning, estate and trust settlement, elder law, and Medicaid qualification services. Jim is a member of Hoosier Hills Estate Planning Council, National Academy of Elder Law Attorneys and its Indiana Chapter, and the Indiana State Bar Association’s Elder Law and Probate, Trust and Real Property Sections. Mr. Voelz serves on the Committee on Character and Fitness of the Indiana Supreme Court.  And he is also the author of “Senior Moments” newsletter.

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

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Only a Week Left to Save 50% Off All On Demand Seminars!

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54 Practical Issues, Tips & Traps for Employment Lawyers – 6 CLE / 1.5 E
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An Update on Health Care Law – 6 CLE
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Trust Accounts Made Easy – 3 CLE / 3 E
From July 2014

Employee Benefits Litigation – 3 CLE
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Section 1031 Exchanges – 5.25 CLE / 6.25 CPE
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Estate Planning for Same-Sex Couples: The Effect of DOMA Repeal – 1 CLE
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Legislative Update for 2014 – 3 CLE
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Bankruptcy And Your Family Law Case – 2 CLE
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Recent Developments in DUI Defense – 6 CLE
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Long Term Care Planning – 3 CLE
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Strategies for Taking Charge of Your Law Practice – 3 CLE / 3 E
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The Big 3 in IP: Copyright, Trademarks & Patents – 3 CLE
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Lobby Law Changes – 1 CLE
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Special Issues in Automobile Accident Cases – 6 CLE
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14th Annual Property Tax Institute – 6 CLE / 6 Assessor Level I or II
From April 2014

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Law Tips: The Problem of Financial Exploitation of the Elderly and Disabled

Financial exploitation of the elderly and disabled has been called “the hidden epidemic.” Attorneys who represent the aged and disabled frequently encounter acts of financial exploitation. And attorneys must do what they can to protect their clients from the risk of being financially exploited.

This statement from James Voelz, ICLEF’s Elder Law Institute faculty member, is a reflection of his ongoing concerns about the elderly and disabled clients he serves. I am grateful that Jim agreed to share his expertise on protecting clients in the expanding elder law arena with Law Tips readers. This week he provides background on the “problem” and the applicable law. Then, as we go down this road, we’ll hear Mr. Voelz’s further advice on steps elder law attorneys may want to take to prevent exploitation of clients.

Jim Voelz’s thoughts on the financial exploitation problem:

The Indiana Adult Protective Services (“APS”) program received 41,334 reports, of which 10,506 reports were investigated during 2012. The reports were classified as follows: Abuse- 2,689, Neglect- 3,176, Self Neglect- 3,198, and Financial Exploitation- 1,443. How many cases of financial exploitation are reported? The estimates range from 1 in 5 to 1 in 44.

I recently met with an APS investigator who has almost 25 years of experience. He said that reports of financial exploitation are increasing, and voiced extreme frustration that he has never seen criminal charges filed against a person who financially exploited an elderly or a disabled person! He said that we have the tools to protect people in Indiana, but these tools are not being used effectively. He said the exploiters are getting away with financial exploitation when they are not being prosecuted. He said prosecutors do not file charges, because victims suffer from dementia or other health issues making it difficult to prove that a crime has been committed.

I also contacted Patrick D. Calkins, who is the Program Director for Adult Protective Services. Mr. Calkins told me that APS does not keep statistics about the number of financial exploitation reports that result in criminal charges being filed against the alleged perpetrator. He did verify that the most common excuse for failure to prosecute is “that the victims make bad witnesses.” But he said that his take on this is that homicide victims make bad witnesses also, but prosecutors still file charges for murder.

Mr. Calkins also told me that the victim’s attorney is often the victim’s last line of defense. Consequently, it is important that we do what we can to help our clients not become victims of financial exploitations, and if our client does become a victim, then to help stop the continuation of financial exploitation and to help our client seek appropriate remedies.

Adult Protective Services

Indiana has had an adult protective services (APS) law since 1985. See Indiana Code 12-10-3-1 through 12-10-3-31. Indiana is the only State in which the APS program is a criminal justice function.

The Division of Aging of the Indiana Family and Social Services Administration oversees the APS program. There are 16 APS unit geographic boundaries. APS has 42 field investigators who are employed by “hub prosecutors” who have a contract for services with the Division of Aging, and they are paid from State funds.

A person who believes or who has reason to believe that another person is an “endangered adult” shall make a report to the adult protective services unit, a law enforcement agency, or the Division of Aging on its statewide toll free telephone number (1-800-992-6978), as required by Indiana Code 12-10-3-9.

So what should an attorney, who knows that his client has been financially exploited, do?

Is the attorney required by law to report this? Yes, Indiana Code 35-46-1~3(a) does require a report to be made to the Division of Aging, APS, or a law enforcement agency.

But, what duties does the attorney have pursuant to the Indiana Rules of Professional Conduct?

Rule 1.14(b) and (c) outlines these responsibilities. (Law Tips note: Here is a link to specific language of Rule 1.14: Indiana Rules of Professional Conduct. Consult the Rules for guidance on when a lawyer is permitted or required to take protective measures. One comment to the Rule concludes as follows: “The lawyer’s position in such cases is an unavoidably difficult one.”)

Suspicious Activity Reports

The Financial Crimes Enforcement Network of the United States Department of the Treasury issued an Advisory to financial institutions regarding the filing of suspicious activity reports regarding elder financial exploitations on February 22, 2011. Please refer to http://www.fincen.gov/statutes_regs/guidance/html/fin-2011-a003.html. The Advisory lists potential indicators of elder financial exploitation.

If the financial institution has a reasonable explanation for the transaction based upon the available facts, including the background and possible purpose of the transaction, it is relieved of the obligation to file a Suspicious Activity Report.

Attorneys who are representing clients or other agents who are involved in an activity with a financial institution that could result in the institution filing a Suspicious Activity Report should provide the financial institution with a reasonable explanation for the transaction. This may prevent a visit from Federal or State law enforcement.

Senior Consumer Protection Act

Indiana has a new law called the Senior Consumer Protection Act that became effective July 1, 2013. The Act provides civil remedies involving financial exploitation of a person who is at least 60 years of age. The Act can be found at Indiana Code 24-4.6~6-1 through 24-4.6-6-6.

We’re breaking here in Jim Voelz’s discussion of financial exploitation of the elderly and disabled. But he continues to share his expertise next week in areas such as the right timing for a person to gift their assets and the amount of power given to the attorney-in-fact.

For a comprehensive update in elder law from an outstanding panel, check out the 2014 Elder Law Institute on October 9-10, 2014.

_________________________________________________________________________________

About our Law Tips faculty participant:
James K. Voelz, Voelz Law, LLC, Columbus, Indiana. Mr. Voelz ‘s law practice primarily involves estate and disability planning, estate and trust settlement, elder law, and Medicaid qualification services. Jim is a member of Hoosier Hills Estate Planning Council, National Academy of Elder Law Attorneys and its Indiana Chapter, and the Indiana State Bar Association’s Elder Law and Probate, Trust and Real Property Sections. Mr. Voelz serves on the Committee on Character and Fitness of the Indiana Supreme Court.  And he is also the author of “Senior Moments” newsletter.

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

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