Can you or Should you Record Your Children’s Telephone Calls in Indiana?

By Richard Mann, Richard A. Mann, P.C., Indianapolis

The Indiana Parenting Time Guidelines provide for parents and children to have reasonable phone access to each other. The guidelines also provide that parents and children are entitled to private communications. But what if the other parent has concerns for the child’s well-being related to such communications? Can a recording of these communications be admitted into evidence? And does a parent risk violating state or federal wiretap laws?

The Indiana Court of Appeals addressed these issues in Apter v. Ross, 781 N.E.2d 744 (Ind. Ct. App. 2003). In that case the Father recorded a phone call between Mother and Daughter. The trial court did not allow the recording into evidence, but the Court of Appeals held that the recording should have been admitted as it did not violate the Wiretap Act.

The court in Apter, supra, explained that in a civil case a recording may be admitted if a proper foundation establishes that 1) it is authentic and correct, 2) it does not contain matter otherwise not admissible into evidence, and 3) it is clear enough to be intelligible and enlightening to the jury. In order to meet the second requirement, the recording must not violate the federal or state wire-tapping laws, as those laws exclude from evidence any interception of communications which are in violation.

The Federal Wiretap Act (18 U.S.C. § 2510 et seq.) prohibits a person from intentionally intercepting communication without the consent of one party to the communication. There is an exception for communications intercepted by a subscriber in the ordinary course of business. This exception has been held to apply to parents, who are the subscriber, as raising their children is their “business.” Scheib v. Grant, 22 F.3d 149 (7th Cir. 1994). To fall within this exception, a parent must be acting out of concern for the child’s well-being. This test focuses on the parent’s motivation and not whether or not the child’s well-being was actually at risk. Therefore, so long as the parent establishes that the act of intercepting the communication was motivated by a genuine concern for the child’s well-being, the recording does not violate the Federal Wiretap Act and may be admissible.

Indiana has a Wiretap Act (I.C. 35-33.5) as well that prohibits interception of communications without the consent of either party to the communication. In Apter the Court held that the recording did not violate the Indiana law because Father had the right to consent to the interception on behalf of his minor daughter. Father had joint legal custody of Daughter and pursuant to Indiana Code 29-3-3-3(a), unless otherwise determined by a court, a parent has the power to execute consent on behalf of a minor under any statute. Because Father’s power to consent on Daughter’s behalf had not been limited by any proceeding, under Indiana law he had the authority to consent to the recording on behalf of his daughter and, therefore, did not violate Indiana’s wiretap laws as the consent of one party is all that is required.

While a recording of a phone call between a parent and a child may be admissible if the above requirements are met, parents should not attempt to abuse these limited exceptions. The Parenting Time Guidelines permit phone access between parents and children and they are entitled to private communications without the interference of the other parent. It will be the burden of the parent intercepting the communication to show that they were truly motivated by concern for the child’s well-being as specifically related to the intercepted communication. A court could find a parent interfering with the child’s communications to be violating the guidelines and in contempt. Furthermore, continued egregious interference with the other parent’s relationship with the child could lead to a modification of custody or parenting time. Therefore, parents should not attempt to intercept communications between the child and other parent unless there are exceptional circumstances truly causing the parent to have genuine concerns for the child’s well-being pertaining to that specific communication. This is a fact-sensitive and legally complicated matter that should be discussed with an attorney before recording any such conversations. Many states ban all recording of conversation so you should consult an attorney in your jurisdiction.

Prepared by Megan Gehring of Richard A. Mann, P.C. Attorneys at Law, www.rmannlawoffice.com

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014 and 2015.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Blogs0 Comments

Trial Court Erred in Dismissal of Boyfriend’s Implied Contract and Unjust Enrichment Claims

Case: Craig Neibert v. Jody A. Perdomo
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erroneously granted involuntary dismissal of Boyfriend’s implied contract and unjust enrichment claims against Girlfriend.

FACTS AND PROCEDURAL HISTORY:
Boyfriend and Girlfriend began a romantic relationship in 2000. Girlfriend lived in Florida at the time, but the following year moved to Indiana to reside with Boyfriend in his home. The parties subsequently spent a few weeks in Florida fixing up Girlfriend’s house to prepare it for sale.

In 2003, Girlfriend’s father passed away, leaving her cash, his house, and a 65-acre plot of land. The parties together began to renovate the inherited house. Girlfriend put up most of the money for materials, while Boyfriend did most of the labor. After completion, Girlfriend rented out the house, but did not pay Boyfriend for his work nor share the rental proceeds with him.

In 2006, the couple decided to build their “dream home” on the 65-acre parcel that Girlfriend had inherited. The project took five years to become habitable, with Boyfriend listed as its contractor and doing much of the work. As the parties lived in the unfinished home, Boyfriend continued working on finishing it. In 2011, with the house nearly finished, the couple ended their relationship and Boyfriend moved out.

Boyfriend subsequently sued girlfriend for implied contract and unjust enrichment. At the hearing, Boyfriend presented evidence of the cohabitation, and his expectation for co-ownership of the properties. At the conclusion of Boyfriend’s case, Girlfriend moved for a 41(B) involuntary dismissal. The trial court subsequently granted the motion, issuing an interlocutory order dismissing Boyfriend’s implied contract and unjust enrichment claims. Boyfriend appealed and his interlocutory appeal was accepted.

The Court of Appeals reviewed Indiana’s well-developed case law on cohabitation related claims. The Court noted that Boyfriend had testified that he performed much of his labor based upon an expectation of co-ownership of the properties. There was also third party testimony which attributed comments to Girlfriend that Boyfriend would get half the farm, and that she referred to it as “our property.” Applying the evidence Boyfriend presented to the elements of unjust enrichment and implied contract claims, “we conclude that [Boyfriend] presented uncontroverted evidence sufficient to survive involuntary dismissal . . . .”

The interlocutory appeal was remanded for a completion of the trial on the merits.

To view the text of this opinion in its entirety, click here: Craig Neibert v. Jody A. Perdomo

 

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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

Posted in Family Law Case Review0 Comments

It is Graduation Time, What Next?

By Richard Mann, Richard A. Mann, P.C., Indianapolis

Do You have a Child of Divorce or Paternity Graduating High School, Turning 19 or Planning on Post Secondary Education?

In 2012 Indiana law underwent a significant change regarding the children of divorced or never married parents.  I.C. 31-16-6-6 was changed to make the age of emancipation for child support 19 instead of the previous 21.  As a result of this change, the child support duty terminates automatically at age 19.  While the duty terminates, if the support is being withheld from one (1) parent’s wages then a court order is necessary to terminate the support.  If there was more than one (1)  child covered by the child support order, it does not change or end the support order unless it is changed by the court (or if they are twins, triplets etc.).  Also, if the child is 18 and is not enrolled in school for 4 months and is capable of supporting him or herself, the child may be emancipated by court order.  Before you run off to file to get the support changed, you should make sure that the change is in your favor.  I have seen numerous times where a person goes to change support thinking it will go down and it goes up, or vice versa.  If you are the party receiving support you might say why would I stop it?  First, because it is not due to you, and secondly, you might have to pay it back.  See Matson v. Matson, 569 N.E.2d 732 (Ind. Ct. App. 1991).  However, if you are paying it and do not file to stop the payment or overpayment believing you will get it back, most cases are against you.  See Eisenhut v. Eisenhut, 994 N.E.2d 274 (Ind. Ct. App. 2013) where the court refused to order the repayment of $19,250 which was a result of a voluntary wage assignment.  The best practice is to seek out legal advice from a lawyer who regularly practices family law months before the date is to occur.

Another issue affected by the change in the law is post-secondary education expenses.  Post-secondary education includes college, trade school etc.  Is your child going?  If you are divorced or under a paternity decree, then what does that order say?  The law provided for a grandfather clause for decrees before the effective date of the law, i.e. before July 1, 2012.  The problem is if there is no provision for post-secondary education and your support order has been modified since July 1, 2012, the grandfather clause may no longer apply. See Neal v. Austin, 20 N.E.3d 573 (Ind. Ct. App. 2014).  If your child turns 19 before you file, you may not be able to look to your child’s other parent for contribution.  Putting these matters off until after graduation and prom may end up costing you a lot more than graduation or prom.  If you are the parent who may have to pay the majority of the costs and do not want to be court ordered to contribute, then you should still seek out legal advice but not raise the issue with you ex-spouse until after you have obtained that advice.  The Indiana Child Support Guidelines were also modified effective January 1, 2016.  They too can significantly affect the contribution a parent may be ordered to make toward post-secondary education.

As in all legal matters, the individual facts may have a significant part of what occurs.

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014 and 2015.

Follow Richard Mann on Facebook, Twitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Blogs, News0 Comments

COA Affirms Trial Court Decision for Name Change of Child

Case: Korie M. Leslie v. Jeremy D. Farmer
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court did not abuse its discretion when, in a paternity matter, it granted Father’s motion that Child’s last name be changed to that of Father.

FACTS AND PROCEDURAL HISTORY:
Child was born out of wedlock in 2010. Five months prior, Father had filed a petition to establish paternity and a request for genetic testing. Thereafter, Father was significantly – but not completely – current in his child support obligations, and maintained regular parenting time with Child.

In 2014, as Child was starting preschool, Father emailed Mother to request that Child’s last name be changed to Father’s last name. Mother would not agree. Shortly thereafter, Father filed a motion for change of name.

After a hearing, the trial court issued an order which discussed at some length the 2013 In re: Paternity of N.C.G. case dealing with the paternity name change issue. That case promoted the public policy considerations of a child taking the father’s last name where the father pays support, is actively involved with the child’s life, and has demonstrated a desire to solidify his bond with the child. Finding those circumstances to be true in this case, the trial court ordered that Child’s name be changed to Father’s last name. Mother appealed.

Mother argued that the order for name change was error because Father’s child support payment history was sporadic, the name change would be confusing to Child, and that Child is already known by Mother’s last name. The Court of Appeals rejected Mother’s arguments, finding that, Mother’s contentions notwithstanding; there was sufficient evidence to support the trial court’s decision such that it was not an abuse of discretion.

The trial court’s order for change of name was affirmed.

To view the text of this opinion in its entirety, click here: Korie M. Leslie v. Jeremy D. Farmer

 

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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

Posted in Family Law Case Review0 Comments

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