Trial Court Properly Recognized & Enforced a Foreign Court’s Custody Order

Family Law Case Review

Case: Maimouna Coulibaly v. Eric Stevance
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Indiana trial court properly recognized and enforced a Malian court’s custody order, over Mother’s objection that the order was unenforceable under the UCCJEA because Mali’s child custody laws violate fundamental humanrights.

FACTS AND PROCEDURAL HISTORY: Mother and Father are both dual citizens of France and Mali. In 2001, they married in Mali and later had two children together.  Father filed for divorce in Mali in 2008. At a hearing there, Mother testified that she wished to move away from Mali, and that Father had been abusive to her. Father denied the abuse claim, and expressed concern that Mother might kidnap the children. Both parties requested custody. Before the Malian court could rule, Mother took the children and moved to France. The Malian court subsequently issued an order granting custody of the children to Father.

Mother never returned the children to Father, and after unsuccessfully contesting the custody order in Mali and France, Mother moved to Indiana, where she continued to challenge the order. At a trial in Indiana, Mother presented evidence of corruption in Mali and of widespread female genital mutilation (“FGM”), which Mother feared the daughter would be subjected to. The Indiana trial court ultimately concluded that that Malian child custody order was entitled to enforcement and that the Indiana court lacked jurisdiction to modify it. Further, Mother was ordered to return the children to Father. That order was stayed pending Mother’s appeal.

Indiana’s adoption of the UCCJEA includes a provision that essentially allows an Indiana court to disregard a foreign custody order, “if the child custody law of a foreign country violates the fundamental principles of human rights.” The interpretation of this so-called “escape clause” was a matter of first impression in this case.  Mother’s arguments that Malian law violated principles of human rights included that its laws favor men over women. The Court of Appeals acknowledged that Malian law treats men and women in different ways, but their custody laws ultimately provide for a “best interests of the children” standard. As to the application of gender differences, “we simply cannot say that they are so utterly shocking to the conscience or egregious as to rise to the level of a violation of fundamental principles of human rights.”

The Court of Appeals also rejected Mother’s arguments based upon the FGM issue: Under the UCCJEA “our scrutiny is limited to Mali’s child custody law and not on other aspects of its legal system, including the law (or absence of law) concerning FGM.” Failing to prove that Mali’s custody laws violate fundamental principles of human law, the trial court properly ordered that the Malian custody decree should not be disturbed by the Indiana court.

The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: Maimouna Coulibaly v. Eric Stevance

 

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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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Trial Court Erred When It “Quasi-emancipated” a 17-year-old Child

Family Law Case Review

Case: Ginger Moell v. Stephen R. Moell
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it “quasi-emancipated” a 17-year-old child who was a subject of a pending petition to modify parenting time between his divorced parents.

FACTS & PROCEDURAL HISTORY: Mother and Father divorced in 2012, with two children. The parties reached a settlement agreement on all children’s issues.

The following year, Father remarried and moved 45 minutes away. The relocation, especially the new amount of travel time required to follow the parenting time schedule, caused significant stresses and disagreement. In 2015, Father filed a petition to modify parenting time.

At the time of the hearing, the parties’ children were 17 and 14 years of age.  As to the 17-year-old, the trial court ordered that he would have discretion to determine his own parenting times schedule, health care decisions, participation in school and extracurricular activities, as well as his religious participation. Mother appealed.

The Court of Appeals noted that the trial court’s order did not formally emancipate the 17-year-old, as could occur pursuant to Ind. Code 31-16-6-6.  The Court observed that the trial court took this step of “quasi-emancipation,” yet made no changes to the parents’ obligations to support the child, though it is unclear that would have changed the outcome of the case.  The Court of Appeals also noted the constitutional implications of the right to parent a child. While the Court was sympathetic to the judicial economy that may have been served by accelerating a process that would occur soon on its own as the child aged, and that the child appeared to be very mature, the orders regarding the older child were reversed and remanded.

To view the text of this opinion in its entirety, click here: Ginger Moell v. Stephen R. Moell

 

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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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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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Court Erred Placing Father’s 529 Funds into Joint Title with Mother

Family Law Case Review

Case: David K. Miller v. Joy A. (Miller) Brown
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court erred when it required Father to take 529 college savings account funds that Father had contributed after the parties’ divorce and place them into joint title with Mother.

FACTS AND PROCEDURAL HISTORY: During Father and Mother’s marriage, the parties contributed to 529 accounts, titled in Father’s name, for the benefit of their two children. The parties divorced in 2010. Their Decree did not address the 529 accounts, which at the time of divorce held a total of about $10,000. After the divorce, Father continued contributing to the accounts. Mother then separately opened her own 529 accounts for the benefit of their children and made contributions to them.

By the time the parties’ second child was starting his post-secondary education, the 529 accounts maintained by Father had a combined balance of about $46,000. Mother’s 529 accounts had a combined balance of about $11,000. Mother filed a petition for a college expense order. After a hearing, the trial court issued a post-secondary educational expense order, one portion of which required that all of the 529 accounts be consolidated into a single account, with Father and Mother as “equal co-owners.” Father appealed.

Father had no objection to other, fairly standard components of the trial court’s post-secondary educational expense order – other than the required consolidation of the 529 accounts. Father argued that, by requiring the consolidation, if the 529 funds went unused, Father would end up dividing with Mother funds that Father had contributed post-divorce. Mother argued that, per statute and case law, the trial court had authority to order funds set aside for the benefit of the children’s support. However, the Court of Appeals founds Mother’s argument unpersuasive, since the instant order required Father not to set aside funds in trust for the children, but to place them irrevocably into joint title with Mother. The Court of Appeals concluded that the problem could have been avoided had Mother raised the issue of the 529 accounts at the time of the divorce, but she failed to do so.

To view the text of this opinion in its entirety, click here: David K. Miller v. Joy A. (Miller) Brown

 

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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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