Guardianship Matters Must be Heard in County Where Matter is Already on File

Case: In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C.
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: When a guardianship matter is already properly on file in one county, a petition filed in another county concerning the custody and parenting time of the subject child is properly dismissible and should be heard, instead, by the court already entertaining the guardianship matter.

HELD: Indiana’s statute that permits a court to restrict parenting time based upon a risk to the child’s physical health or emotional development does not require specific findings by the court concerning those risks to the child.

FACTS AND PROCEDURAL HISTORY:
Child was born, in Illinois, to Mother in 2009. Child was subsequently made a ward of the State of Illinois. Father had been incarcerated but, upon his release in 2010, Father began visiting Child. In 2011, upon Father’s motion, paternity was established in Kankakee County, Illinois.

In early 2013, Mother brought Child to Decatur County, Indiana, where Child was to live with Guardian, who was a friend of Father. Father initiated this move, as Father had since moved to Hendricks County, Indiana, and wanted Child to be closer to him. Guardian subsequently filed, in Decatur County, and with Mother’s and Father’s consent, a petition to be appointed Child’s guardian. That petition was granted.

Over six months later, Father filed, in Hendricks County, a petition to register the Illinois paternity order, and a motion to vacate the Decatur County guardianship order, alleging a lack of jurisdiction. After a hearing, the Decatur Court issued an order restricting Father’s parenting time and requiring that it be supervised. Father then filed, in the Hendricks Court, a petition to modify custody and parenting time, which Guardian moved to dismiss. The Decatur Court denied Father’s motion to dismiss, and the Hendricks Court granted the Guardian’s motion to dismiss as well as issued a fee award in Guardian’s favor. Father appealed both orders, which were consolidated into a single appeal.

The Court of Appeals concluded that the Decatur Court had proper jurisdiction. The Court suggested that, at one point, Father might have had a UCCJA argument that the Decatur Court should not be hearing the matter – and that the matter should be resolved in Kankakee County, Illinois — but that Father waived that argument when he consented to the guardianship in the Decatur Court.

In terms of the Hendricks Court matter, the Court agreed that Father’s petition to modify was properly dismissed. “Although the actions took two different forms, their subject matter was the same. Because the subject of child custody and parenting time was properly before the Decatur Court in the guardianship action, the Hendricks Court was precluded from making a custody or parenting time determination in the subsequently-filed paternity action.”

Notably, the order from the Decatur Court that restricted Father’s parenting time and required that it be supervised contained no specific findings of fact. Though neither party had requested findings, the applicable statute concerning parenting time restrictions provides: “A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.” The Court of Appeals determined the statute does not require specific findings from the trial court in the absence of either party requesting findings generally. Since the trial court’s parenting time restrictions were generally supported by evidence (e.g., Father’s history of drug and alcohol addiction, prior incidents of questionable care of the child, etc.), the order was affirmed.

The only order from below that was reversed was an attorney fee award issued by the Hendricks Court in favor of Guardian, and against Father, in the course of dismissing Father’s petition to modify. The Court of Appeals concluded that the trial court failed to hear any evidence of the parties’ financial resources and, in the absence of same, the attorney fee order was improper.

To view the text of this opinion in its entirety, click here: In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C.

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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

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Law Tips: Pro Bono in Indiana 2014 – A Snapshot From An Expert

Are you in the midst of re-examining your pro bono commitments? Or, should you be? Maybe you’ve been wondering about the status of pro bono in Indiana. Fortunately, we have Scott Wylie to provide information on where Indiana’s pro bono path has led and the current state of affairs. Mr. Wylie is presently a plan administrator with the Volunteer Lawyer Program of Southwestern Indiana. He has directly observed the country’s pro bono developments for more than two decades, having also held the position of Director of the Public Law Center in Orange County California for a number of years. Scott is a nationally recognized commentator on attorney pro bono efforts, nonprofit governance, and poverty law. I am pleased to share with Law Tips readers his overview of Pro Bono in Indiana 2014.

Indiana is a deliberative place. We aren’t known for being on the cutting edge and change is something that we look at with a skeptical eye. It is rare that we jump in the pool first, typically waiting until others have tested the waters. Indiana was the last state in the nation to adopt a system of using interest on lawyer trust accounts (commonly referred to as IOLTA) to help fund the provision of legal services to low income residents. Our system, which went into effect in 1998, primarily funds pro bono programs in the state.1 Similarly, we have been cautious in our development of self-help services and clinical programs to address the needs of those for whom the legal aid and pro bono system just can’t fully serve. That cautious beginning served the state very well for a number of years, creating a well-planned, albeit modestly-funded, pro bono delivery system in every jurisdiction of Indiana. Pro Bono Plan Administrators working with the state’s Pro Bono Commission, worked to implement locally-developed pro bono plans to serve low income Hoosiers. These programs in turn often worked closely with other agencies in the delivery system, such as Indiana Legal Services, to maximize representation of the poor. 2 That system, however, is now greatly stressed after years of low interest rates sapping it of resources and high demand created by the Great Recession.

Even with strong programs and partnerships, our legal services delivery system was not able to meet the legal needs of every low income litigant before the Great Recession- not to mention the needs of the near-poor who aren’t served through the pro bono or legal aid system under any circumstance.

Since 2008, the gap has increased rapidly as programs have had to restrict services. To deal with this reality, law school clinics, legal services programs, courts, and each of our pro bono programs have worked to create new delivery models that attempt to meet the needs of clients who can’t otherwise be served through direct representation from our remaining pro bono programs. These litigants often have to navigate the system alone without services, and, while not ideal, these self-help services do address part of the litigants’ needs. They also assist the courts by increasing judicial efficiency and by ensuring more accurate and better prepared pleadings and legal documents when dealing with unrepresented litigants. 3 Court based clinics, law school clinics, and the encouragement of discrete task or limited scope representation have complemented the efforts of courtroom attorneys in increasing access to justice.

Professional Conduct Rule 6.5

Indiana wasn’t the first to undertake such efforts, but the state did ensure that our Rules of Professional Conduct facilitated these new models. Specifically, the courts adopted Rule 6.5 to make it easier for attorneys to provide limited scope and brief advice services at both court-based and nonprofit clinics (often run by law schools or pro bono programs). Perhaps the best known is our annual Talk to a Lawyer program offered each Martin Luther King Day throughout the state. Dozens of other clinics occur each month, some assisting pro se litigants with court forms and others providing guidance on specific subject matters. In all environments, participating volunteer attorneys can provide the service without having to do full conflict of interest checks. Rule 6.5 allows a pro bono attorney in these controlled environments to provide legal information or services to unrepresented litigants unless she specifically recognizes that she or a member of her firm has a conflict. The commentary provided with the rules provide guidance to both attorneys and program developers to ensure these limited scope services are offered in an appropriate manner and that litigants understand the limited nature of the legal relationship.

Professional Conduct Rule 1.2

Further guidance on providing services in these new environments is contained in Rule 1.2, specifically in subsection c, which along with the rule’s commentary specifically allows limited scope services. This method of providing legal services, often times referred to as unbundling, has been a hot topic in legal services for years. Since the framework of the profession’s conduct rules has always been based upon a full representational model, carving out these specific exceptions to allow limited scope services has been instrumental in allowing clinics, hotlines, and other self-help services to join the other tools available to the poor in obtaining legal help. These have become increasingly important tools as pro bono programs have had to limit services due to funding cuts. Attorneys participating in such programs should familiarize themselves with these rules and their commentary and participate only with reputable programs which follow the prescribed procedures for offering such. 4

By adopting new delivery methods and opening new avenues of service, facilitated by the ethics rules discussed above, Indiana continues its efforts to increase access to justice for the most vulnerable residents of the state, even during a time of very limited resources. For information on volunteering in your home jurisdiction, and for what innovative programs are offered in your community, contact your local Pro Bono Plan Administrator. 5

Thank you to Scott Wylie for sharing this Indiana pro bono snapshot. His ICLEF faculty presentation also includes specific instruction on areas such as allocation of authority between client and lawyer, independence from clients’ views and criminal and prohibited transactions. This training session is a portion of the 2014 Indiana Law Update program available currently by Video Replay around the state or as an On Demand Seminars, Click Here to learn more.

Indiana’s pro bono program structure in its entirety is described throughout Rule 6 of the Indiana Rules of Professional Conduct.

1 Historical information on the development of IOLTA programs throughout the country and historical data on Indiana’s IOLTA program can be found at www.nlada.org.

2 Information on pro bono services in Indiana, including information on each of Indiana’s pro bono programs can be found at www.in.gov/judiciary/probono.

3 In 2008, Indiana undertook an extensive survey of the legal needs of low income Hoosiers. The executive summary of that report can be found at the Indiana Legal Services website.

4 Detailed information on pro se assistance programs and limited scope representation can be found at http://www.abanet.org/legalservices/delivery/delunbund.html.

5 Information on pro bono efforts in Indiana, including a list of local Plan Administrators, can be found at www.in.gov/judiciary/probono.

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About our Law Tips faculty participant:
Robert Scott Wylie: Before returning to the Evansville area in 2005, Mr. Wylie spent seventeen years practicing and teaching law in Southern California. He is a nationally recognized commentator on attorney pro bono efforts, nonprofit governance, and poverty law. From 1999 until 2005, Mr. Wylie served as the Associate Dean of Extemal Affairs and held the John Fitz Randolph Director of Clinical Education Chair at Whittier College School of Law. This work was preceded by a seven year stint as Executive Director of the Public Law Center in Orange County California. For over fifteen years, Mr. Wylie has been active with the American Bar Association Center for Pro Bono. Presently, he is the Director of the Vanderburgh Community Foundation and a Plan Administrator with the Volunteer Lawyer Program of Southwestern Indiana. Mr. Wylie serves on the Board of Directors of a variety of charities including the Legal Aid Society of Evansville.

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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ICLEF's Annual Family Law Institute

ICLEF Annual Family Law Institute Chair, Andrew C. Mallor, Named Among 100 Most Influential Divorce Trial Lawyers in the United States

ICLEF's Annual Family Law Institute Chair, Andrew C. MallorIndiana family law attorney and ICLEF Family Law Institute Chairperson Andrew C. Mallor, a founding partner of Mallor Grodner, has been elected into membership in the American College of Family Trial Lawyers (ACFTL). The ACFTL is a select national group of 100 of the best family law trial lawyers from across the country. He was chosen by his peers based upon his litigation skills and courtroom abilities. Mallor is the first, and only, Indiana lawyer admitted to the organization.

A leading family lawyer in Indiana for over 35 years, Mallor leads his firm’s private client division, with some client relationships spanning three generations. In addition to family law matters such as adoption, divorce, matrimonial agreements, and child custody matters, Mallor has significant expertise in matters involving wealth management, including trust and estate planning and probate matters, elder law, business succession planning, and premarital agreements.

An early advocate of collaborative law, Mallor has built a reputation in the family law practice area by advocating for clients and doing what is in their best interest. “Divorce is a difficult process and our goal is to make it as easy as possible,” said Mallor. “When we have determined that a divorce is the only option, we want to reach a meaningful and fair settlement and avoid the expensive financial and emotional costs of a trial.”

Looking to the Future
As a diplomat with the American College of Family Trial Lawyers there is opportunity to collaborate with some of the best family trial lawyers in the country as well as being involved in the uppermost level of continuing legal education.

Beyond his own personal development, he enjoys giving back to the industry. Mallor is the Chair for ICLEF’s Annual Family Law Institute.  “I value the opportunity to give back to this career what it has given me,” said Mallor. “If I can lead by example and mentor the next generation of lawyers, I can only hope they will continue to embrace our approach to finding creative and cost-effective solutions for our client’s legal issues.”

Throughout his career Mallor has garnered significant professional honors. He has received an AV® Preeminent™ designation by Martindale-Hubbell for having the highest possible ratings in both legal ability and ethical standards. He is also a past recipient of the Gale Phelps Award, which recognizes an Indiana lawyer with exceptional service to the profession, highest level of competence, raising the level of professionalism and civility in domestic relations matters, and high moral character.

ICLEF's Annual Family Law Institute

Judge Bill Hughes, Hamilton County Superior Court, takes questions from the Family Law Institute audience.

Video replays of this year’s 12th Annual Family Law Institute are now showing, Click Here. Mark your calendars for the 13th Annual Family Law Institute, which takes place Thursday & Friday October 29-30, 2015 at the ICLEF Facility in Indianapolis.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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2014 Indiana Law Update On Demand & Video Replay Seminars

Albion - Nov. 10-11
Avon/Danville - Dec. 11-12
Bloomington - Oct. 30-31
Chicago SE
      Day 1 - Nov. 14
      Day 2 - Nov. 17
Corydon - Nov. 5-6
Evansville - Oct. 27-28
Fort Wayne - Nov. 13-14
Gary - Dec. 4-5
Indianapolis - Nov. 3-4
Jeffersonville - Oct. 29-30
Lafayette - Nov. 6-7
Marion - Dec. 18-19
Merrillville - Nov. 13-14
Michigan City - Dec. 8-9
Muncie - Oct. 30-31
Nappanee - Nov. 6-7
New Castle - Nov. 13-14
Richmond - Nov. 13-14 
Salem
      Day 1 - Dec. 4
      Day 2 - Dec. 11 
Valparaiso 
      Day 1 - Jan. 9
      Day 2 - Jan. 16
Versailles - Nov.25-26
Vincennes - Dec. 11-12

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