The Indiana Court of Appeals Clarifies Requirements for Changing Name and Gender Markers on Birth Certificates Involving Transgender People

In re the Name Change of A.L. and In re the Name Change of L.S., 79A02-1703-MI-473 involved two (2) people A.L. and L.S. who wanted to legally change their name as well as their gender markers (i.e. the gender designation) on their respective birth certificates. Both had been living as men and working with medical and counseling personnel as they transitioned. Per Indiana law, the intent to change one’s name must be published in a newspaper. This enables creditors and other parties to locate the new name.

A.L. filed for a name change and gender marker change in May 2016. The trial court denied his petition to change his gender marker because he did not publish his intent to do so. The court was following the logic that if publication was not required, many people would change their gender markers to avoid creditors and “other aggrieved parties,” and should thus follow the same publication requirements of a name change.

L.S. filed a petition for a name change and a gender marker change in September 2016, but requested a waiver of publication and a sealed record. He also requested an exclusion of confidential information under Administrative Rule 9. Administrative Rule 9 “governs public access to, and confidentiality of, Court Records.” This rule “attempts to balance competing interests and recognizes that unrestricted access to certain information in Court Records could result in an unwarranted invasion of personal privacy or unduly increase the risk of injury to individuals and businesses.” L.S. submitted evidence that transgender individuals were unduly subjected to violence and homicide, LGBT people are the most likely minority to experience hate crimes in the US, personal hate crime experiences and beliefs, and submitted statistics on the harassment, mistreatment, and murder of transgenders in 2016.

However, the trial court denied his petition and ordered L.S. to publish his intent to change his name and gender. The trial court acknowledged that transgenders did experience a disproportionate amount of violence; however, it also found that it did not establish that he had been subjected to specific threats or violence that a public case would make worse.

L.S. filed for interlocutory appeal and A.L. filed for appeal, and the cases were consolidated into one case. The Indiana Court of Appeals noted that there is no statute requiring publication of an intent to change a gender marker and that the trial court applied the wrong standard. Judge Baker stated, “Unless and until the General Assembly crafts specific requirements regarding either gender marker changes, this Court’s common sense standard in Birth Certificate is the bar that must be met.” The standard applied in Birth Certificate is that a name change and gender marker change must be made in good faith and not to commit fraud. Both A.L. and L.S. met this standard, and the trial courts were reversed and the cases remanded with instructions to grant both petitions and to amend their birth certificates with their new genders.

The Court of Appeals reversed the trial court and L.S. was also granted a sealed record under Administrative Rule 9 because he established that publishing his intent placed him at a greater risk by pointing to transgender violence in his community, state, and nation. The appellate court found that not granting this petition would be to essentially “out” a man as transgender. After considering all the evidence L.S. had provided, the court stated:

Publication of his birth name and new name would enable members of the general public to seek him out, placing him at a significant risk of harm. And in today’s day and age, information that is published in a newspaper is likely to be published on the Internet, where it will remain in perpetuity, leaving L.S. at risk for the rest of his life. There was no evidence in opposition to L.S.’s evidence. Under these circumstances, we find that L.S. established that publication of notice of his petition for a name change would create a significant risk of substantial harm to him. As a result, the trial court should have granted his requests to seal the record and waive publication pursuant to Administrative Rule 9. At page 14 of slip opinion.

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Prepared by Richard A. Mann and Paralegal Molly E. Hendricks

Richard A. Mann has been practicing Family Law for more than 37 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, Mann Law, 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 consecutively from 2009 – 2017.

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

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Legal-Writing-Smart-MobBB

Legal Writing in a Smartphone Age – Sept. 15

A National Speaker Seminar

Living in an electronic world – where short, condensed writing is the norm – has negatively impacted communication in today’s litigation and contract drafting.

Writing is an essential tool for you as an attorney. You work with words every day – in your memos, pleadings, client letters, emails – and the words that you choose
in those documents convey your ability and confidence.

Are you sending the right message? This course focuses on learning to write effectively using a combination
of lectures, class exercises and discussions. There will be a special emphasis on drafting and the rules of construction.

You can expect to find out:
• How to write and edit more efficiently in the e-age
• How to apply storytelling to your writing of statements of fact
• How studying advertisements can help your arguments
• Ethical issues relevant to legal writing – RPC1.1 (Competence); 1.3 (Diligence); 1.4 (Communication); 3.1 (Meritorious Claims and Contentions)

Topics covered:
• Organizing your ideas: proper style, paragraph structure
• Convincing leads and conclusion: avoiding legalese
• The ethics of legal writing including citing to adverse authority, attributing sources, and use of metadata regarding electronic communication.
• How the internet changes the rules of privilege
• Writing for courts
• The process of editing (yourself and others)

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National Speaker:
Steven Stark
A graduate of Harvard College and Yale Law School, Steven Stark has taught hundreds of writing and speaking courses to law firms, corporations, and government agencies. Steven is also the author of four books and one e-book. He has been a commentator for CNN, National Public Radio, and the Voice of America, as well as a columnist for the Boston Globe and Montreal Gazette.

A former Lecturer on Law at Harvard Law School, he has a vast background in the fields of legal writing, communication, & inter-cultural studies.

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Legal Writing in a Smartphone Age
A NATIONAL SPEAKER SEMINAR
3 CLE / .5 E – Friday Morning, September 15; 9:00 A.M. – 12:15 P.M.

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

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Stay for the Steven’s Afternoon Seminar!
Writing to Win: Results-Oriented Writing for Busy Litigators
3 CLE / .5 E – Friday Afternoon, September 15; 1:15 P.M. – 4:30 P.M.

LIVE IN-PERSON ONLY SEMINAR
– ICLEF Conf. Facility, Indianapolis

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Effective Threats

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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Notes on Negotiation: Effective Threats
By Marty Latz, Latz Negotiation Institute

“I’m gonna make him an offer he can’t refuse,” Don Vito Corleone (Marlon Brando) says in The Godfather. Perhaps the greatest movie threat ever, Corleone had dominant negotiation leverage – his counterpart faced certain death if he refused Corleone’s “offer.”

By contrast, the media recently reported that President Donald Trump instructed Interior Secretary Ryan Zinke to speak with Sen. Lisa Murkowski (R-Alaska) on health care and “remind” her of the Interior Department’s control of many issues affecting Alaska.

Trump’s threat didn’t change her vote against the Republican plan.

Of course, I’m not suggesting Trump behave like the Godfather. But there are effective and ineffective threats.

If and when and how should you use threats?

First, understand the fundamental nature of threats. Northwestern Professor Adam Galinsky and Brigham Young Professor Katie Liljenquist define a threat as “a proposition that issues demands and warns of the costs of noncompliance” in “Putting on the Pressure: How to Make Threats in Negotiations” in Harvard’s Negotiation newsletter.

Threats constitute an often-unspoken element in almost all negotiations. They’re actually a super aggressive effort to exercise leverage. Leverage, as my regular readers know, relates in part to the strength of your alternative to a deal with your counterpart (your Plan B if your deal is Plan A) relative to their alternative to a deal with you (their Plan B).

Your ability to negatively impact their perception of their Plan B through a threat – the costs of noncompliance with your offer – strengthens your leverage. The worse you can make their Plan B seem with a threat, the more likely they will accept your Plan A by comparison.

Threats are also not inherently evil. As Galinsky and Liljenquist note, “[r]esearchers have found that people actually evaluate their counterparts more favorably when they combine promises with threats rather than extend promises alone. Whereas promises encourage exploitation, the threat of punishment motivates cooperation.”

Understanding this, follow these four research-based guidelines in deciding how to use threats.

1.    Strategically Plan Your Threats

“Put your bike away now, or no electronics for a week,” you might threaten after you find your 10-year-old’s bike in the driveway for the umpteenth time.

Every parent has lost their temper at some point. Does it help? Usually not.

Threats based on anger, volatile emotion, and momentary pressures are almost always counterproductive. Galinsky and Liljenquist note that “multiple studies have linked anger to reduced information processing, risky behaviors, and clouded judgment.”

Strategically planning your threats in advance, not reacting instinctively, addresses these concerns. Such planning also reduces the possibility of counterthreats and retaliation, which could escalate and spiral out of control.

The goal of a threat is to satisfy your interests. Use it to motivate cooperation, not to punish.

2.    Threaten Only in Limited Circumstances

Northwestern Professor Jeanne Brett and her colleagues, according to Galinsky and Liljenquist, have identified three circumstances in which threats can be necessary and effective:

  • Getting your counterparts to the table when facing a seemingly intractable deadlock (like threatening aggression or sanctions to get a recalcitrant country to engage in peace talks);
  • Breaking an impasse by signaling strength and fortitude (bullies sometimes only respond if you demand respect by flexing your muscles); and
  • As a mechanism to ensure compliance and implementation of an agreement.

The reason to only threaten in limited circumstances? Even well-crafted threats may carry significant negative consequences, as noted by Galinsky and Liljenquist, including:

  • Provoking resistance and anger, thus decreasing your counterparts’ likelihood of granting your wishes;
  • Undermining an agreement’s legitimacy if your counterpart believes it resulted from coercion; and
  • Inciting a desire for vengeance (“[p]sychologists,” Galinsky and Liljenquist write, “have found that revenge has biological foundations, persisting until it is satisfied, like hunger. The more severe a threat’s consequences, the more extreme the retaliation is likely to be.”)

Don’t make threats a regular part of your repertoire. Selectively use them.

3.    Credible Threats Work – Empty Threats are Counterproductive

Don’t start a war you’re not prepared to fight and finish. Former President Barack Obama famously threatened Syria with severe consequences if it crossed a “red line” by using chemical weapons.

What did he do after the world saw unmistakable evidence it had crossed his red line? Said he didn’t have authority from Congress to even engage militarily and negotiated a deal to stop it from happening again.

Did this prevent Syria from doing it again? No. Did Obama and the United States lose significant credibility relating to its future promises and threats with Syria and the rest of the world? Yes.

Reputations matter, especially relating to the credibility of threats.

4.    Frame Your Threats to Satisfy Your Counterparts’ Interests

Effective threats should also be framed so they can be realistically satisfied and not engender ill will. They should thus:

  • be specific and detailed;
  • address your counterpart’s interests;
  • be delivered respectfully in a measured, serious tone;
  • include meaningful consequences;
  • link to a timeline; and
  • possibly include an escape route if circumstances change.

Also use them sparingly in situations involving a future relationship between the parties. Threats can backfire long-term.

Then-President Ronald Reagan in 1981 threatened 12,000 striking air traffic controllers with the loss of their jobs if they did not report back to work “within 48 hours” of his statement. 11,359 did not comply. He fired them.

According to Galinsky and Liljenquist, “[m]any observers view Reagan’s controversial threat and follow-through as a pivotal moment in his presidency and the foundation for future political victories.”

Latz’s Lesson:  I’ve made you an offer here you can easily refuse. Don’t. As Clint Eastwood/Dirty Harry would say – “make my day.”

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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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When Going Through a Mediation, Divorce, Child Support, or Paternity Action Make Sure You or Your Attorney are Aware of These Issues

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

People going through divorce, paternity, or child support matters may make decisions that unknowingly have significant financial affect upon them. Under Indiana Law child support orders are required to address the dependency exemption for children.   See I.C. 31-16-6-1.5 which states” (a) A court shall specify in a child support order which parent of a child may claim the child as a dependent for purposes of federal and state taxes.

(b) In determining which parent may claim the child as a dependent under subsection (a), the court shall consider the following:

(1) The value of claiming the child as a dependent at the marginal tax rate of each parent.

(2) The income of each parent.

(3) The age of the child or children and the number of years that the child or children could be claimed as a dependent or dependents.

(4) Each parent’s percentage of the costs of supporting the child or children.

(5) If applicable, the financial aid benefit for postsecondary education for the child or children.

(6) If applicable, the financial burden each parent assumed under the property settlement in a dissolution proceeding.

(7) Any other relevant factors.”

Many people think the custodial parent receives the exemption.  That is the default under federal law if the order is silent.  Along with the dependency exemption there are other considerations such as head of household status especially in cases with equal parenting time, lifetime learning credits, child care creditunder 17 child credit, etc. As far as the child care credit, a number that goes into the child support calculation is the cost of child care.  A little known or used provision of the Indiana Child Support Guidelines states as follows: In circumstances where a parent claims the work‑related child care credit for tax purposes, it would be appropriate to reduce the amount claimed as work‑related child care expense by the amount of tax saving to the parent.  The exact amount of the credit may not be known at the time support is set, but counsel should be able to make a rough calculation as to its effect See commentary 3E1. What this means is that number could be reduced by the tax benefit by the custodial parent therefore reducing the child support. This may be fair as the non-custodial parent’s support includes a percentage based upon the relative income and pays the child care with no tax benefit.

I regularly am involved, when I mediate, when one or both parties are not aware of these provisions or the effect upon their case.  Many lawyers have not taken a tax course or it has been many years since they did.  In today’s family law setting you must be aware of many areas of law, since as explained above, tax could have a significant effect on your case, understanding of pensions and retirement may be a part of divorce, businesses may need dividing, social security benefits (the difference between SSI, SSD and SSR), food stamps, vouchers, employer provided health insurance, and bankruptcy is often a possibility in such matters.

The following article is an article from the IRS outlining many tax considerations.  Summer Camp may even qualify for the child care credit.

Many parents send their children to summer day camps while they work or look for work. The IRS urges those who do to save their paperwork for the Child and Dependent Care Tax Credit. Eligible taxpayers may be able claim it on their taxes in 2018 if they paid for day camp or for someone to care for a child, dependent or spouse during 2017.

Here are a few key facts to know about this credit:

  1. Qualifying Person. The care must have been for “qualifying persons.” A qualifying person can be a child under age 13. A qualifying person can also be a spouse or dependent who lived with the taxpayer for more than half the year and is physically or mentally incapable of self-care.
  2. Work-Related Expenses. The care must have been necessary so the taxpayer could work or look for work. For those who are married, the care also must have been necessary so a spouse could work or look for work. This rule does not apply if the spouse was disabled or a full-time student.
  3. Earned Income. The taxpayer — and their spouse if married filing jointly — must have earned income for the tax year. Special rules apply to a spouse who is a student or disabled.
  4. Credit Percentage/Expense Limits. The credit is worth between 20 and 35 percent of allowable expenses. The percentage depends on the income amount. Allowable expenses are limited to $3,000 for care of one qualifying person. The limit is $6,000 if the taxpayer paid for the care of two or more.
  5. Care Provider Information. The name, address and taxpayer identification number of the care provider must be included on the return. The childcare provider cannot be the taxpayer’s spouse, dependent or the child’s parent.
  6. IRS Interactive Tax Assistant tool. Use Am I Eligible to Claim the Child and Dependent Care Credit? tool on IRS.gov to help determine if eligible to claim the credit.
  7. Dependent Care Benefits. Special rules apply for people who get dependent care benefits from their employer. See Form 2441, Child and Dependent Care Expenses, has more on these rules. File the form with a tax return.
  8. Special Circumstances. Since every family is different, the IRS has a series of exceptions to the rules in the qualification process. These exceptions allow a greater number of families to take advantage of the credit. For more information, see IRS Publication 503, Child and Dependent Care Expenses.

Even if the childcare provider is a sitter in the home, taxpayers may qualify for the credit. Taxpayers who pay someone to come to their home and care for their dependent or spouse may be a household employer. They may have to withhold and pay Social Security and Medicare tax and pay federal unemployment tax. Find more on that in IRS Publication 926, Household Employer’s Tax Guide.

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Richard A. Mann has been practicing Family Law for more than 37 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, 2015 & 2016.

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

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