Grandparents, Parents, Brothers and Sisters: Guardians What are You Risking Because of Child, Part 2

BULLIES AND PARENTS OF BULLIES BEWARE
Prepared By Richard A. Mann

In my previous article, I addressed the liability you incur by signing for a child’s driver’s license in my article GRANDPARENTS, PARENTS, BROTHERS AND SISTERS HAVE YOU JUST UNKNOWINGLY SIGNED FOR LIABILITY? Part I. As previously noted, we in the family law field of practice are seeing custody or guardianship of children going to people other than their parents. Many children in Indiana are in the custody of one (1) parent or family member either because of divorce, the children are born out of wedlock, or the parent not being able to care for the child and leave the child with a relative. If your child is engaged in an activity such as bullying, vandalism, shoplifting, fights etc. you could be liable. If you or your child are a victim of any of these activities, you may have options you have not considered.

STRICT LIABILITY STATUTE FOR PARENTS
At common law people were generally not responsible for the acts of their children. Indiana has a law that changes that as it applies to the parent of a child. Pursuant to I.C. 34-31-4-1 “…, a parent is liable for not more than five thousand dollars ($5,000) in actual damages arising from harm to a person or damage to property knowingly, intentionally, or recklessly caused by the parent’s child if: (1) the parent has custody of the child; and (2) the child is living with the parent.” This means that if the child lives with a parent and that child knowingly, intentionally, or recklessly harms property of a person you can be strictly liable for up to $5,000 in damages. By strict liability this means even if you are not at fault you can still be sued.

LIABILITY FOR PARENTS AND GUARDIANS
 Where the guardian or custodian may be at risk or the parent for more than $5,000 is set forth in the Wells decision. In that case the Court of Appeals found a parent liable but the reasoning could be applied to a guardian and there is no limit in such cases. Furthermore, it is likely that there is no insurance coverage available so you could be made to pay the entire judgment yourself.

“In addition to Indiana Code § 34–4–31–1, there are four common law exceptions to the general rule that a parent is not liable for the tortious acts of her child.

(1) where the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible.

K.C. v. A.P. (1991), Fla.App., 577 So.2d 669, 671.2 Wells’ claim is based on the fourth common law exception. She alleges that Hickman was negligent because Hickman failed to control her minor son when she knew or should have known that L.H. would injure D.E.”

Wells v. Hickman, 657 N.E.2d 172, 176 (Ind. Ct. App. 1995)

Some examples of such cases are Hyman v. Davies, 453 N.E.2d 336, where the child broke into a neighbor’s home and stole their car; Wells v. Hickman, 657 N.e.2d 172, where the child beat a person to death; State Farm Fire & Casualty Company v. T.B., 858 F. Supp.2d 971, where the son struck another minor in the mouth and the insurance company refused to defend the suit against the parents and the child; Stewart v. Swartz, 57 Ind. App. 249, 106 N.E. 719, in which the court found that the parent would be liable when he knew his children had stretched a rope across a road (the case was remanded for other reasons); Johnson v. Toth, 516 E.E.2d 85, where a child struck another child with a pop bottle; Shepard v. Porter, 679 N.E.2d 1383, in which a 13-year-old accidently burned when lighter fluid was ignited (the parents were not held liable based solely on facts of the case); and Economy Premier Assurance Company v. Wernke, 521 F. Supp.2d 852, where the son struck someone in the face causing damage. In Wernke, the insurance company was successful in having the court declare that the insurance company did not have to defend or pay for the injuries when their son struck someone which resulted in the victim having a broken jaw.

LIABLITY FOR CRIMINAL ACTIVITY
Another source of liability is if the child is involved in a criminal organization commonly known as a gang.

A parent of a child who is a member of a criminal organization (as defined in IC 35-45-9-1), who actively encourages or knowingly benefits from the child’s involvement in the criminal organization, is liable for actual damages arising from harm to a person or property intentionally caused by the child while participating in a criminal organization activity if: (1) the parent has custody of the child; (2) the child is living with the parent or guardian; and (3) the parent failed to use reasonable efforts to prevent the child’s involvement in the criminal organization.

Ind. Code Ann. § 34-31-4-2.

The statute uses the terms parent and guardian and as such an argument could certainly could be made that a grandparent with custody of a grandchild could be liable. A criminal organization or gang does not have to be a major gang as the law only requires that it be made up of 3 or more people that (1) either: (A) promotes, sponsors, or assists in; (B) participates in; or (C) has as one (1) of its goals; or (2) requires as a condition of membership or continued membership; the commission of a felony, an act that would be a felony if committed by an adult, or a battery offense included in IC 35-42-2. Ind. Code Ann. § 35-45-9-1.   In Cole v. State, 967 N.E.2d 1044, the defendant was convicted of criminal gang activity (now criminal organization activity) when he and 2 others committed felonies. Shop lifting can be a felony; joy riding can be a felony; hitting someone with your fist or pop bottle can be a felony if it causes moderate bodily injury or is committed against a person under 14 years of age by someone 18 years old or over. You could be liable, for example, if your child and 2 others decide to go do vandalism if the damage they cause is $750 or more. It does not take much damage to cost $750.

CONCLUSION

If you have a child or are contemplating taking the custody of a child of another person, you should consider the above issues. You should consult your attorney about the possibilities raised in this article. You should also speak to your insurance agent and if you do not have one you should get one. You need to look at what your automobile, homeowners, renters, and umbrella coverages are and, even as important, what they do not cover. I once read a case where the appellate court judge said after reading the insurance policy what the coverage gave the exclusions took away. You should also consider if your child is a bully or a victim of bullying how these laws can affect your liability or your options to stop such activity.

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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, 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.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Grandparents, Parents, Brothers & Sisters Have You Just Unknowingly Signed for Liability, Part 1

Prepared By Richard A. Mann

More and more we in the family law field of practice are seeing custody or guardianship of children going to people other than their parents. Many children in Indiana are in the custody of one (1) parent or family member either as a result of divorce, being born out of wedlock, or the parent not being able to care for the child and leaving the child with a relative. This article is only meant to address one issue. Under Indiana Law, a child under 18 years of age must have an adult 18 years of age or older to sign for financial responsibility of that child in the case they are held liable for the operation of a motor vehicle. See IC 9-24-9-4 which says “(a) An individual who signs an application for a permit or driver’s license under this chapter agrees to be responsible jointly and severally with the minor applicant for any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damages.”

This statute could result in liability you had not considered. For example, you take guardianship or third-party custody of your grandson, nephew, sister, cousin, etc. When that child applies for their driver’s license you take them to the Indiana Bureau of Motor Vehicles and sign for him or her to get their driver’s license. At that point, you are liable for “…any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damage.” You might then say well I have car insurance. Unfortunately, that is not where the discussion ends. Many times, as occurred in Motorists Mut. Ins. Co. v. Wroblewski, 898 N.E.2d 1272 (2009), insurance agents recommend that you cover the young driver on a separate policy as many companies will not cover high risk drivers or the adding of a new driver increases everyone’s insurance costs. In the Wroblewski case, the grandparents had guardianship of their grandson. When the grandson turned 16 years of age, grandmother took him to the BMV to sign for his driver’s license. The grandparents then gave him a car which was put in his name alone. The grandparents purchased him car insurance with an insurance company different that the one that covered their vehicles. That same month grandson was involved in an automobile accident. Unfortunately, grandson was found at fault and the insurance that the grandson carried was not enough to pay the judgment. The injured party then filed to have grandmother pay the judgment based solely upon her signing for financial responsibility upon him getting his license. The trial court entered a judgment against grandmother for $99,422.19 plus court costs. The injured party then sued grandmother’s insurance to pay the claim. The Indiana Court of Appeals held that based upon the policy terms the grandson was excluded from coverage as he owned the vehicle and he had his own insurance. In plain terms, this means that grandmother would have to pay the entire $99,422.19 out of her pocket and her insurance did not cover her since her grandson and his car were not on her insurance.

The various ways you can be held liable are numerous. Another case to consider is what if the person you sign for liability loans their vehicle to an unlicensed or intoxicated driver? The court in Cedars, infra, ruled that when a daughter allowed an unlicensed driver to drive her vehicle and then there was a car accident injuring others the injured parties could sue the parent who had signed for financial liability of the daughter who was not driving. The court held that the accident arose out of the daughter’s negligence in allowing an inexperienced driver which resulted in a wreck. The court stated, “Accordingly, the trial court properly found that Linda Waldon can be jointly and severally liable if the jury finds Cherish liable to the Cedars on the theory of negligent entrustment.” Cedars ex rel. Cedars v. Waldon, 706 N.E.2d 219, 225 (Ind. Ct. App. 1999)

So, if you are or have obtained custody of a child, guardianship of a child, or just are asked to sign for a child’s driver’s license, you need to make sure you have the child and their vehicle insured and in an amount to cover your risk. If you have a change of custody, even if it is not approved by the court, and you have a driver, whether you signed for financial responsibility or not, you should consult your automobile and homeowner insurance agent. You should get your agent’s opinion in writing. You should also know for most policies if you have a relative who lives with you and they are not named on your automobile or homeowner’s policy they are not covered.

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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, 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.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Blogs0 Comments

“Unfit” Father’s Consent Not Required in Adoption Proceeding

Family Law Case Review

Case: In re Adoption of D.M. Michael Mendez v. Brent L. Weaver
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In an adoption proceeding, the trial court’s determination that Father’s consent to the adoption was not required was affirmed based upon a finding that Father was an “unfit” parent. Father was previously convicted of molesting Child’s half-sister and served several years in prison prior to the initiation of the adoption proceedings.

FACTS AND PROCEDURAL HISTORY:  Child was born to Father and Mother in 2010. Mother’s daughter from a previous relationship also lived part-time with them. In 2012, Father was arrested for molesting Child’s half-sister. He later pled guilty to a class C felony and was sentenced to sixteen years with eight suspended. Mother divorced Father concurrent with the criminal proceedings.

Mother began dating Step-Father in 2013, and they married in 2016. Step-Father filed a petition for adoption, and Father filed an objection. After a hearing, the trial court determined that this matter involved one of the exceptions for the requirement that a parent consent to adoption. Specifically, consent is not needed where it is proven by clear and convincing evidence that the natural parent is “unfit to be a parent” and the best interests of the child would be served by dispensing with the parent’s consent.

On appeal, much of the discussion focused on the meaning of “unfit.” A primary argument of Father was that he was convicted of a class C felony, and that another subpart of the consent statute states that only class A or class B convictions trigger a potentially automatic dispensing of the need for consent. The Court of Appeals found this argument unpersuasive, in that rendering a class A or a class B conviction a potentially automatic waiver of consent, it does not follow that the circumstances underlying a class C conviction cannot lead a determination of unfitness.

Determining that the evidence most favorable to the trial court’s decision did not contradict its conclusion, the trial court’s decree of adoption was affirmed.

To view the text of this opinion in its entirety, click here: In re Adoption of D.M. Michael Mendez v. Brent L. Weaver

 

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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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Subsequent Death of a Party Will Not Cause the Court to Lose Jurisdiction to Implement the Terms of the Decree

Family Law Case Review

Case: Judith M. Edwards (n/k/a Judith Klemos) v. Allen O. Edwards, Deceased, and D. Juatrice Edwards, as Personal Representative of the Estate of Allen O. Edwards
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: While it is generally true that a dissolution court loses jurisdiction over a matter upon the death of one of the parties, once a dissolution court has issued a final decree dividing the parties’ property, a subsequent death of a party will not cause the court to lose jurisdiction to implement the terms of the Decree thereafter.

FACTS AND PROCEDURAL HISTORY:  Husband and Wife were married for 20 years before their dissolution was entered by agreement in 2012. The Decree included provisions that allocated some of Husband’s retirement interests to Wife. QDROs or similar orders were not implemented thereafter to effect the division of Husband’s retirement accounts.

In 2016, Wife apparently learned that Husband was terminally ill with cancer and filed a motion seeking assistance from the Court in effectuating the division of Husband’s retirement accounts. Before Wife’s requested relief could be implemented, Husband died.

Litigation ensued between Wife and Husband’s surviving subsequent spouse. The dispositive issue was whether the dissolution court, as a matter of law, lost jurisdiction over the disbursement of Husband’s retirement accounts with Husband’s death. The trial court concluded that it lost jurisdiction, from which order Wife appealed.

The Court of Appeals stated that general rule that “dissolution proceedings terminate entirely with the death of one of the parties to the dissolution.” The Court reviewed applicable case law, but took particular interest in the 2001 Beard case. In Beard, the trial court had bifurcated dissolution proceedings, first granting the divorce but then deferring for subsequent resolution the division of the parties’ property. The husband in Beard died after the divorce was entered but prior to the division of property. The Court of Appeals ruled in that case that the death of a party after the dissolution was granted, but before property division was adjudicated, did not deprive the dissolution court of jurisdiction.

In the instant case, because Husband died after the Decree was entered, the trial court did not lose jurisdiction to follow through with its implementation, even after Husband’s death.

The trial court’s order was reversed and remanded for further proceedings.

To view the text of this opinion in its entirety, click here: Judith M. Edwards (n/k/a Judith Klemos) v. Allen O. Edwards, Deceased, and D. Juatrice Edwards, as Personal Representative of the Estate of Allen O. Edwards

 

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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