Trial Court Within Discretion Denying Grandmother’s Petition for Visitation

Case: In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court was within its discretion in denying Grandmother’s petition for grandparent visitation, where Grandmother neither rebutted the presumption that Mother was a fit parent, nor did she meet her burden that grandparent visitation would be in the Children’s best interests.

NOTED: The Court of Appeals expressly declined to decide what legal standard should be applied to a modification of grandparent visitation, as opposed to establishing it in the first place.

FACTS AND PROCEDURAL HISTORY:
Mother has two young Children, born out-of-wedlock, with Father. In early 2013, Father “walked away” from Children and no longer had any contact with them. Prior to then, paternal Grandmother had periodic contact with Children, when the Father would see them. After Father stopped having contact with Children, Grandmother approached Mother informally to request contact with the Children, but Mother denied it citing concerns over prior incidents (e.g., Grandmother consuming alcohol around the children, not using a car seat on one occasion, etc.)

Grandmother subsequently filed a petition for grandparent visitation. At a subsequent hearing, the parties apparently agreed that Grandmother would have a “trial period” of supervised visitation, pending a full hearing.

At the next hearing, Grandmother put forth no evidence that Mother was unfit. On cross-examination, Grandmother also conceded she had allowed the Children to be placed in various dangerous or inadvisable situations during her trial parenting time. Following the hearing, the trial court denied Grandmother’s petition for visitation, from which Grandmother appealed.

The basis of Grandmother’s appeal was an argument that the trial court applied the wrong legal standard. Because the parties had previously reached an agreed entry for Grandmother’s visitation, Grandmother argued that the second hearing was a modification of an existing Grandparent visitation order, not an issue of whether to establish it in the first place. However, the Court of Appeals rejected that argument, agreeing with Mother that the original visitation order was a trial arrangement pending a full hearing on the matter. And, having properly addressed the McCune factors, the trial court was within its discretion to deny visitation.

In a footnote, the Court of Appeals also indicated that it was expressly reserving for a future case the issue debated by the parties as to the legal standard for a modification of grandparent visitation.

The trial court’s order denying grandparent visitation was affirmed.

To view the text of this opinion in its entirety, click here: In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens

_________________________________________________________________________________

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

Trial Court Erred When Child Support Calculation Deviated from ICSG

Case: James Bogner v. Teresa Bogner
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when its child support calculation deviated from the Indiana Child Support Guidelines calculation without supporting circumstances to do so.

HELD: Trial court erred when it modified the claiming of the child for tax purposes without analyzing the financial ramifications of doing so.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced, with one Child, in 2007. Father was ordered to pay child support of $162/wk, and the parents were to alternate claiming Child for tax purposes.

In 2009, by agreed entry, Father’s child support was reduced to $135/wk. Then, in 2011, Father moved closer to Mother and Child, enabling Father to informally increase his parenting time. This included parenting time before and after school that obviated the need to pay for child care.

In 2013, Father petitioned to modify support. The parties stipulated to all of the inputs of the support calculation – incomes, parenting time, etc. – which resulted in a joint child support worksheet that calculated support at $59/wk. Father argued in support of this modification, but Mother opposed it on the basis of valuable tax credits apparently enjoyed by Father, and potential uninsured medical expenses to be covered by Mother.

After the hearing, the trial court essentially agreed with Mother, concluding that $59/wk was too little to cover a reasonable share of Mother’s expenses for Child. The trial court set support at $105/wk, instead of the $59/wk indicated by the parties’ joint worksheet. The trial court also changed the tax exemption, from alternating years between the parents, to Mother being able to claim every year.  Father appealed.

The Court of Appeals agreed with Father on the issue of weekly child support. The Court concluded that the trial court erroneously determined that the $59/wk shown on the joint child support worksheet would be the totality of Father’s financial contributions to raising Child. Doing so overlooks all of the expenses for Child that Father paid directly, including during Father’s fairly liberal parenting time.

On the issue of the tax exemption, the Court of Appeals referenced the Guidelines and related case law that a trial court should engage in a careful analysis before making a decision on awarding a dependency exemption. Here, since there was no evidence in the record concerning the financial implications of modifying when each parent could claim the exemption, it was error for the trial court to make a change.

The trial court’s order was reversed. On remand, the trial court was instructed to use a support amount of $59/wk per the worksheet. On the issue of the tax exemption, the trial court was instructed to engage in the analysis set forth in Child Supp. G. 9 concerning how the exemption should be allocated.

To view the text of this opinion in its entirety, click here: James Bogner v. Teresa Bogner

_________________________________________________________________________________

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

Trial Court Find Mothers Proposed Relocation Not in the Best Interest of Child

Case: In Re: the Marriage of Tina M. Harpenau v. Robin P. Harpenau
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court was within its discretion when it granted Father’s petition to modify custody based upon Mother’s proposed relocation, and when it modified child support as well. The record supported the trial court’s conclusion that Mother’s proposed relocation was not in the children’s best interests.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in Perry County in 2013, with two minor children. The parties agreed to joint legal custody, with Mother having primary physical custody. Shortly thereafter, Mother filed a Notice of Intent to Relocate to Scott County, so that she could move in with her boyfriend and to be closer to Mother’s place of work.  Father’s objected to the proposed relocation, citing his belief that the schools would be inferior, his own increased drive time to see the children, and a concern about criminal activity around the house into which Mother proposed moving.

After a hearing, the trial court concluded that Mother’s proposed relocation was offered in good faith and for a legitimate reason, but that it did not serve the best interests of the children. Thus, the trial court awarded Father primary physical custody and gave Mother the parenting time schedule that Father had prior to the modification. The trial court also modified child support, running its own child support calculation based upon the Decree’s income figures for the parties, and ordering Mother to pay $119/wk based upon the court’s calculation. Mother appealed.

The Court of Appeals reviewed the record and found ample evidence to support the trial court’s findings concerning the best interests of the children: there was limited information about the duration or seriousness of Mother’s relationship with the man she proposed moving in with; Father lives on a 160-acre parcel shared with other family members; and, the lack of relationships the children (or Mother) had in Scott County.  Thus, the modification and denial of Mother’s proposed relocation with the children was not an abuse of discretion.

The Court also concluded that the trial court did not abuse its discretion when it modified child support. The court used the same income figures from the worksheet that was attached to the parties’ recent 2013 Decree. Father testified at the hearing that the numbers had not changed since, and Mother failed to offer any conflicting testimony or evidence, or a child support worksheet of her own. The modification of child support was not error.

The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: In re the Marriage of Tina M. Harpenau v. Robin P. Harpenau

_________________________________________________________________________________

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 Review, Highlighted Seminars0 Comments

Trial Court Within Discretion in Barring Putative Father from Establishing Paternity

Case: In the Matter of the Adoption and Paternity of K.G.B., E.S. v. T.B. and K.B.
Case Summary by Mike Kohlhaas and Tamara McMillian, Bingham Greenebaum Doll

HELD:  The trial court’s ruling was upheld that Putative Father failed to timely register with Indiana’s Putative Father Registry (“Registry”) which resulted in him irrevocably and implicitly consenting to Child’s adoption by Child’s maternal grandfather. The trial court was within its discretion in barring Putative Father from establishing paternity of Child.

FACTS AND PROCEDURAL HISTORY:
In August 2012, Mother gave birth to Child. In August 2013, Mother filed a request with the Registry searching for any registered putative father of Child. The Registry search results indicated that no putative father of the Child was registered and no paternity determination was on file for Child. On August 27, 2013, Child’s maternal grandfather, T.B., filed a petition to adopt Child. Mother consented to T.B. adopting Child.  T.B. and Mother agreed that Mother would retain her maternal rights to Child. Mother also intended to share in the parental responsibilities and obligations with T.B.

In September 2013, T.B. filed an amended petition to adopt Child including Mother’s consent for him to adopt and evidence that no putative father registered with the Registry and there was no paternity determination on file.

In October 2013, Putative Father filed a paternity petition and a motion contesting the adoption of Child by T.B. Although Putative Father acknowledged that he failed to timely register with the Registry, he asserted that he should have been notified of the pending adoption proceedings regarding Child. Putative Father also alleged that the Indiana statutes were unconstitutional as applied to him and his due process rights were violated. Mother moved to dismiss Putative Father’s paternity action and T.B. filed a motion to strike Putative Father’s motion. In January 2014, Putative Father filed an amended paternity petition as being brought by “as next friend for” Child and filed a motion to correct error. The trial court denied Putative Father’s motion to correct errors. Putative Father appealed.

The Court of Appeals essentially agreed with Mother and T.B. on all of the paternity and constitutional issues. The Court concluded that the trial court correctly held Putative Father was not entitled to notice of T.B.’s adoption proceedings because Putative Father failed to timely register with the Registry. Putative Father’s failure to timely register resulted in an irrevocably implied consent and he was barred from establishing paternity of Child. The court reasoned that when Putative Father failed to register within the required time period under Ind. Code  § 31-19-5-12, he waived notice of any adoption proceedings. Since Putative Father was barred from establishing paternity, the trial court appropriately held that he was also blocked from establishing paternity as next friend of a child.

The Court also held that Putative Father failed to meet his burden of establishing that the statutes were unconstitutionally applied to him. Putative Father lacked evidence that his due process rights were violated because he failed to demonstrate that he had established any substantial relationship with Child prior to T.B.’s adoption request.

The trial court’s orders were affirmed.

To view the text of this opinion in its entirety, click here: In the Matter of the Adoption and Paternity of K.G.B., E.S. v. T.B. and K.B.

_________________________________________________________________________________

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