Putative Grandfather Lacked Standing to Commence Paternity Matter

Family Law Case Review

Case: In re the Paternity of: S.A.M. (Child), M.M. v. M.H., S.B.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: A putative grandfather, whose son – the putative father – was deceased, lacked standing as the child’s “next friend” to commence a paternity matter.

FACTS AND PROCEDURAL HISTORY: Child was born to Mother in 2007. Father executed a paternity affidavit and is listed as Child’s father on the birth certificate. Father continued to have a relationship with Child, and he shares custody of Child with Mother.

In 2011, a third party, B.H., passed away. And some point, it came to be believed by the parties that B.H. was Child’s biological father.

In 2013, B.H.’s father (“Grandfather”) filed a petition to establish paternity of Child. He sought custody or, in the alternative, grandparent visitation. The trial court referred the matter to mediation, which resulted in an agreement, the key provisions of which were: (1) B.H. was the biological father of Child; (2) Father and Mother would share joint legal custody of Child; and (3) Grandfather would have grandparent visitation.  The trial court approved the mediated agreement.

Implementation of the agreement became contentious, resulting in Grandfather seeking to have it enforced, and Father seeking to have it set aside as void due to Grandfather’s lack of standing. After a hearing, the trial court concluded Grandfather had standing, declined to set aside the mediated entry, and ordered the parties to follow it. Father appealed.

Reviewing the paternity statute, the Court of Appeals noted that the only avenue for Grandfather to have standing would be as Child’s “next friend,” a term that is not statutorily defined. Reviewing the applicable case law, it is significant that Child already has Mother and Father involved in Child’s life. The Court further concluded that the Grandparent Visitation Act, without more, did not confer standing upon Grandfather; the Court concluded that, had the legislature wished to confer standing automatically upon a putative grandparent, the statute determining who can initiate a paternity matter could have been amended to add grandparents, but it was not. Further, because the lack of standing cannot be cured, the order referring the parties to mediation, and the resulting mediation agreement, are all void by extension.

The trial court’s order was reversed.

To view the text of this opinion in its entirety, click here: In re the Paternity of: S.A.M. (Child), M.M. v. M.H., S.B.

 

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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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The Survivors Guide to Everyday Estate Planning Practice – Nov. 2

TOPICS:
The Wonderful World of Wills:
Knowing How & When to Use Wills for Everyday Estate Planning

Untangling the Myths of Trusts:
Best Practices in Recommending & Drafting Commonly Used Trusts

Everyday Estate Planning Roundtable –Wills vs. Trusts?:
Wills v. Trusts, & Other Current Topics in Everyday Planning Practice (including a Question & Answer Session)

The Medicaid & Long Term Planning Maze:
Identifying When Clients May Need More than the Simple Estate Plan

Dealing with the Impaired/Incapacitated Client:
How to Ethically Identify, Deal with & Manage Impaired/Incapacitated Clients

Putting on the Finishing Touches to the Estate Plan:
Drafting & Using Powers of Attorney, Living Will Declarations & Health Care Proxy Documents
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FACULTY:
Jeanette C. Kassebaum – Chair
Attorney At Law, Fishers, IN

Mary J. Hoeller, R.N., J.D., NCG
Indianapolis, IN

Mark W. Holwager
Holwager & Holwager, Attorneys at Law, P.C., Beech Grove, IN

Kimberly A. Jewell
Holwager & Holwager, Attorneys at Law, P.C., Beech Grove, IN

Arlene Kline
Law Office of Arlene Kline, Indianapolis, IN

Steven C. Robinson
Robinson Wolenty & Young, LLP, Indianapolis, IN

Julia S. Weaver, J.D., LL.M.
Director, Family Office Services & The Trust Company of Oxford,
Oxford Financial Group, Ltd., Carmel, IN

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The Survivors Guide to Everyday Estate Planning Practice
6 CLE / 1 E – Thursday, November 2

LIVE IN-PERSON SEMINAR
– ICLEF Conference Facility, Indianapolis

LIVE INDIVIDUAL WEBCAST
– From your home or office computer

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Advanced Interdisciplinary Collaborative Practice Workshop – Nov. 9-10

Collaborative Practice specialist Victoria Smith leads a two-day workshop to further engage those trained in collaborative practice.

Agenda Day 1:
• Introductions/Goals/Learning Objectives
Overview of Collaborative Process & Professionals

• Advocacy in a Settlement Context – Role play
Redefining the Role of the Advocate
What we keep from traditional advocacy and what’s new
The Spectrum of Advocacy within Collaborative Practice
Understanding Conflict – Role play

• Overview of Interest-based Negotiation
Spectrum of Interests/Core Concerns
The Neuroscience of Interest-based Negotiation – Role play

• The Synergy of Neutrals and Advocates

• Key Communication Skills
Active Listening
Reframing
Non-defensive Questioning
“I” Statements

• Understanding Fairness
Question & Answer

Agenda Day 2:
• Roadmap of the Team Case
Comprehensive Team Protocols

• Initial Client Meeting – Role play

• The Role of the Law in an Interest
Based Process Understanding Power

• The Interplay between Fairness, the Law & Interests

• Option Generation

• Questions & Answers
Wrap-up & Closing
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National Speaker:
Victoria Smith, Victoria Smith Collaborative PC
A Toronto family lawyer with over 30 years of experience. Her passion and life work is to help clients to resolve their separation and divorce wisely and with dignity, and to support an evolution in the legal profession from adversarial advocacy to conflict resolution advocacy. Over 15 years ago, she confined my practice to out-of-court settlement work using Collaborative Law/Collaborative Practice and mediation. She has successfully resolved hundreds of mediations and collaborative cases. She provides workshops to collaborative professionals across North America and internationally to critical acclaim.

She is an empathic and solution-oriented lawyer and mediator, with a recognized capacity to negotiate creative settlements that meet her client’s needs and goals. She believes in educating, coaching and empowering her clients through a separation process that successfully prepares them for the future. Her goal is to help her clients receive their best possible outcome with the least possible emotional and financial turmoil.
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Bring a mental health or financial professional & save….
Receive 50% off tuition of second and third professional after first registrant pays full tuition.

To take advantage of this tremendous savings, simply use the following discount codes when prompted at “checkout” and the second and third registrant receive 50% off tuition after the first registrant pays full tuition:
Discount Code for One Colleague = 1colleague
Discount Code for Two Colleagues = 2colleagues
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ADVANCED INTERDISCIPLINARY
COLLABORATIVE PRACTICE WORKSHOP
12 CLE / 12 CME – Thursday & Friday, November 9-10

LIVE IN-PERSON ONLY SEMINAR
– ICLEF Conference Facility, Indianapolis

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Dealing with the Untrustworthy – Part 2

NOTES ON NEGOTIATIONS
By Marty Latz, Latz Negotiation Institute

“We had a deal. Then he tried to slip something in that we had not even discussed. It was significant, too. Not a huge change. But not a minor issue, either. And it wasn’t inadvertent or a mistake. He intentionally did it. Frustrating, to say the least. It raised an issue of credibility and trust.”

Should you walk? It depends.

First, it depends on whether the deal primarily involves a one-shot zero-sum transaction with relatively few issues and no future relationship between the parties. If so, you might decide it’s worth it to close. Otherwise, especially if you will have to work with your counterpart to implement the deal, seriously consider walking away.

Second, and related to the first, evaluate your leverage. Your counterpart’s sleazy tactic (we call these “nibblers” in the negotiation world) changed the value of your deal with them – and made it worse. So re-evaluate it now relative to your Plan B, your alternative to doing that deal.  If your Plan B now appears better than this deal, walk.

This evaluation should also include your personal attitude toward risk and conflict. Your counterpart’s trust-raising tactic increases the risk and possible conflicts and problems involved in the deal and with this counterpart.

Roger Fisher, co-author of the bestseller Getting to Yes: Negotiating Agreement Without Giving In, once said “trust is a matter of risk analysis.” He’s right. The more you trust, the more you risk. The less you trust, the less you risk.

It just became riskier for you to trust your counterpart. The deal also became riskier. Folks like this will be less reliable and trustworthy on all fronts.

If you have spent your life building a company and want to sell it and retire, you likely will not accept a handshake deal with a stranger. Way too risky.

And while you can try to legally nail down in writing as many contingencies as you can, it’s tough to completely eliminate the trust factor in any deal. It’s especially difficult if the deal involves a future relationship between the parties.

Manage the risk.

So what should you do if you decide to keep the deal? At the least, request an equivalent or greater concession in return. Don’t just give in. If you do, they’ll nibble more. After all, it worked. Why not keep on nibbling?

In addition, consider these strategies. I also recommend these if you find your counterpart untrustworthy due to other factors (like your research into their reputation, they made material misrepresentations in the negotiation, they used other sleazy tactics, etc.).

  • Independently confirm all statements that may provide your counterpart with leverage or power, especially if they involve the existence of an alternative deal.
  • Discount the relevance of statements that cannot be confirmed.
  • Document and then confirm in writing the party’s commitments.
  • Consider recording the negotiation.
  • Aggressively explore your potential alternatives (Plan Bs).
  • Be especially wary of vague and ambiguous statements and commitments.
  • Understand that such negotiations take more time and effort than others and recognize this cost in doing business with this person.
  • Pay attention to the details and don’t leave ambiguous issues unresolved.
  • Consider bringing in an independent third party to help.
  • Specifically define what constitutes a breach.
  • Provide a fair and efficient mechanism to ensure commitments get satisfied or to resolve disputes that may arise from a potential breach. (We use escrow agents in some transactions for this very purpose. It’s too risky to trust the other side will just comply based on our agreement – so escrow agents manage it.)

Of course, don’t lower yourself to their level. Your reputation is too important to risk.

Latz’s Lesson:  Sometimes we have to deal with untrustworthy individuals. Protect yourself.

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Marty Latz will be presenting again this year at the ICLEF Conference Facility!
December 1 – Gain the Edge! Negotiating to Get What you Want, 6 CLE / 6 CME / 1 E

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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