Indiana also Recognizes Foreign Registered Domestic Partnerships on the Basis of Comity

Family Law Case Review

Case: In re: Kristy Gardenour v. Denise Bondelie
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD:  A foreign Registered Domestic Partnership (“RDP”) can confer upon unmarried parties, who relocate to Indiana, rights and obligations that spouses share, on the theory that the foreign RDP was a contract between the parties’ that incorporated the foreign jurisdiction’s statutory substantive rights and obligations.

HELD: Indiana also recognizes foreign RDPs on the basis of comity.

HELD: A couple with a foreign RDP who knowingly and voluntarily agrees to co-parent a child by artificial insemination will each be a “legal parent” of the child.

FACTS AND PROCEDURAL HISTORY:
In 2003, California enacted its Domestic Partner Act, which afforded an opportunity for two same-sex parties to share in all the same rights and responsibilities as marriage, but by another name. To be declared domestic partners, the parties needed to submit a “Declaration of Domestic Partnership.” The Act included various recitations that the parties would be treated the same as spouses with respect to rights and obligations of property, children, etc.  The Act also afforded the parties an opportunity to enter into a separate contract that deviated from those statutory terms; in effect, a “premarital agreement,” but for a domestic partnership.

In 2006, Kristy and Denise, while living in California, entered into an RDP. They had no separate agreement modifying their statutory rights and obligations. The parties subsequently moved to Indiana.

In 2012, Kristy was artificially inseminated and gave birth to Child the following year. In 2015, the parties separated, Denise moved back to California, and Kristy filed, in Indiana, a petition to terminate the RDP.  As a result of those proceedings, the Indiana trial court terminated the RDP, awarded the parties joint legal custody of Child, provided Denise with a parenting time arrangement, and ordered Denise to pay child support to Kristy. Kristy appealed.

Kristy appealed the trial court’s finding and conclusion of the parties’ “spousal relationship.” The trial court had done so relying upon a contractual theory: Indiana recognizes cohabitation agreements and marital agreements as valid and enforceable. Though Indiana does not have RDPs, Indiana law can view Denise and Kristy’s declaration of RDP as a contract that incorporated the substantive provisions of California law with respect to the parties’ rights and obligations to be just like spouses. The Court of Appeals agreed: “[D]espite the Declaration not detailing statutory language pertaining to the rights and obligations of domestic partners, we conclude Kristy and Denise contractually entered into a RDP – thereby incorporating default terms of California law – and agreed to be treated as spouses.”

The Court of Appeals also noted that the RDP could be honored on an alternative theory of comity. The Court further observed that, as a matter of public policy, not recognizing the terms of the RDP would allow a parent in California to flee his or her obligations as a spouse or parent by crossing state lines.

Kristy also appealed the trial court’s finding that Denise was Child’s “legal parent.” However, the Court of Appeals concluded that Denise was a legal parent of Child both under the same RDP contractual and comity analysis set forth above, but also pursuant to existing Indiana case law that can establish a legal parent relationship for anyone who “knowingly and voluntarily agreed to co-parent a child by artificial insemination,” which was the case here.

The trial court’s legal custody and parenting time order was affirmed.

To view the text of this opinion in its entirety, click here: In re the Marriage of: Kristy Gardenour v. Denise Bondelie

 

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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 Review, News0 Comments

Evidence Supported the Trial Court’s Determination that there was No Repudiation by Son

Family Law Case Review:

Case: : Kevin R. Koontz v. Erin L. (Koontz) Scott
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court properly concluded Son had not repudiated his relationship with Father, for purposes of a college expense order, where Father had essentially abandoned the relationship when Son was 13, and Father later reached out to Son only after Mother began pursuing a contribution for college expenses.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2009, upon which Mother was granted sole legal and primary physical custody of Son. Father exercised regular parenting time for several months, until Father and Son — who was then 13 years old — had an altercation during which Son alleged that Father struck Son in the face.

Thereafter, Father continued to pay child support, but exercised no parenting time and there was no relationship between Father and Son.

In late 2014, Son graduated from high school and was accepted to IU and Ball State. Mother subsequently filed a petition for a post-secondary educational expense order. Father then began reaching out to Son, sending him a Facebook friend request that Son did not accept, and leaving several voicemails that Son did not return.

After a hearing, the trial court concluded that Father and Son clearly had a strained relationship, but it did not constitute “repudiation” by Son. The trial court then issued a college expense order allocating 1/3 of expenses to Father, Mother, and Son. Father appealed.

The Court of Appeals reviewed the McKay case and its repudiation-related progeny. The Court essentially found little to fault in Son’s reactions to a difficult situation. The Court considered Father’s outreach to Son to be “meager” and of questionable sincerity, since it occurred only after Mother filed a petition for a college expense order. Finding that the evidence supported the trial court’s determination that there was no repudiation by Son, the trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: Kevin R. Koontz v. Erin L. (Koontz) Scott

 

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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 Review, News0 Comments

Stepfather’s Behavior Supports Changing Custody to Father

Family Law Case Review:

Case: Jessica Robertson v. Brian Robertson
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Evidence supported trial court’s modification of custody from Mother to Father in light of Mother’s remarriage to Stepfather, and Stepfather’s attendant drug use, criminal history, and behavioral problems.

FACTS AND PROCEDURAL HISTORY:
In 2010, the marriage of Mother and Father was dissolved. Mother was awarded custody of the parties’ then 3- and 4-year-old children.

In 2014, Mother remarried Stepfather. Out of concern for Stepfather’s relationship with and its impact on the children, Father filed a petition to modify custody.

At a hearing, which included GAL testimony, there was substantial evidence regarding Stepfather, including his criminal history, unemployment, prescription drug use and misuse, passing out while eating dinner, being overly physical with the children, falling asleep while smoking a cigarette, and driving with a suspended license while the children were in the car with him. After the hearing, the trial court modified custody from Mother to Father, from which Mother appealed.

Noting the considerable latitude that is extended to a trial court considering child custody issues, the Court of Appeals concluded that sufficient evidence had been presented to demonstrate that Stepfather’s presence in the children’s lives supported the trial court’s conclusion that there had been a substantial and continuing change in circumstances, and that the children’s best interests would be served by changing custody to Father.

The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: Jessica Robertson v. Brian Robertson

_________________________________________________________________________________

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, News0 Comments

Parenting Time Order “Difficult”, but Enforceable

Case: Paternity of P.B., M.L.B. v. D.L.B.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court’s order that Mother was not in contempt of parenting time orders was reversed, where the trial court had put together a reunification plan for Father and Son, and Mother had plainly and admittedly failed to cooperate with it. The trial court’s reasoning — attempting to enforce a parenting time order on a 14-year-old child is extremely difficult — was unpersuasive.

FACTS AND PROCEDURAL HISTORY:
Son was born to Mother and Father in 2001. Paternity and related orders were later established. An extensive history of litigation at the trial court and appellate levels followed.

In 2009, Mother sought to terminate Father’s parenting time based upon assorted allegations that the trial court concluded were unsubstantiated. Nevertheless, and despite a parenting time order being in place, no parenting time occurred — over Father’s strenuous objection. Mother continued to refuse parenting time, a situation that would fester for years.

In 2012, after numerous petitions and hearings, the trial court put in place a professionally managed reunification process for Father and Son. Mother subsequently refused to cooperate with the reunification process, not taking Son to the related counseling sessions. Father filed another contempt citation against Mother.

Following a hearing in June 2015, the trial court issued an order that acknowledged that Father had no parenting time in five years and noted Mother’s complete and admitted failure to abide by the trial court’s parenting time orders. However, the trial court then discussed the dilemma of many parenting time cases where, unlike an infant, it is difficult to force parenting time to occur when a teenage child is involved. After that discussion, the trial court noted that it “declined to force parenting time upon a fourteen year old young man adamant about having no contact or relationship with his Father.” The trial court then denied Father’s contempt against Mother. Father appealed.

The Court of Appeals sympathized with the difficulty of the trial court’s situation, but underscored the importance of enforcing parenting time orders that were clearly being disregarded and ignored. The Court also noted that, while Son’s actions played a role in the situation, Mother was to blame as well. Mother had very candidly admitted that she was disregarding the parenting time and reconciliation orders. As such, the trial court’s order was reversed and remanded “with instructions that the trial court enter a contempt sanction against Mother that will be sufficient to enforce its parenting time order.”

To view the text of this opinion in its entirety, click here: In re the Paternity of P.B., M.L.B. v. D.L.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

Posted in Family Law Case Review, News0 Comments

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