Amateur Life Coach Season 2 Preview

Amateur Life Coach Season 2 Preview

James J. Bell, ICLEF's Amateur Life Coach

Amateur Life Coach Returns for Season 2 on April 29th

The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) will once again provide you insights to both law and life in his own, unique way starting April 29th..

As we get ready to roll out another season of the Life Coach, take a sneak peek at what and who he has in store for you:

Now, you can also “like” the Amateur Life Coach at Facebook!  Visit his facebook account today and catch up on his day-to-day activities.

Questions for the Amateur Life Coach?  Email them to scottking@iclef.org or iclef@iclef.org

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum.
This video is for informational purposes only and should not be used as a substitute for professional advice.

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James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Fathers Consent for Adoption Not Required…

Case: In re Adoption of T.L. and T.L.; M.G. v. R.J. and E.J. 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Indiana Supreme Court holds that Father’s consent to adoption was not required where Father had an extended history of not paying any support for the children.

HELD: Even though Father’s pro se “notice of appeal” was defective and did not comply with Appellate Rule 9, Father’s appeal should have been afforded greater accommodation and not dismissed by the Court of Appeals due to the significance of the right to parent.

FACTS AND PROCEDURAL HISTORY:
Mother and Father had two children together. In 2002, a child support order of $30 per week was issued against Father. In 2004, the support order was increased to $106/wk. Since then, Father has spent most of the time incarcerated, except for a brief period when Father was unemployed, and Father has paid a grand total of $390 towards the support order — with no payments whatsoever since 2005.

In 2011, Mother remarried and her new Husband petitioned to adopt the children. Father opposed the adoption, but the trial court granted it anyway, citing the statute that a parent’s consent to adoption is not required if that parent “knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.”

Thirty days after the adoption decree issued, Father filed a pro se response that the trial court treated as a Notice of Appeal. However, the Court of Appeals dismissed Father’s appeal, upon the motion of Mother and Husband that Father’s appeal was not filed timely.

Father sought and was granted transfer by the Indiana Supreme Court. “Because of the importance surrounding an individual’s right to parent his children, we deny the Appellee’s Motion to Dismiss and proceed to the merits of Father’s claim.”

Reviewing the merits, the Supreme Court agreed that the record supported the trial court’s finding that Father had failed to support the children in a manner that removed the need for Father’s consent to the adoption. The Court was mindful of Father’s extended period of incarceration, but because Father did not make any payments of support whatsoever, coupled with the fact that extended periods when Father was out of prison also went without any support being paid, justified the trial court’s findings.

The trial court’s order granting Husband’s petition for adoption was affirmed.

To view the text of this opinion in its entirety, click here: In re Adoption of T.L. and T.L.; M.G. v. R.J. and E.J.

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Relocating Without Filing Statutory NOI: Promptly Initiate Custody Mod?

Case: Dustin Lee Jarrell v. Billie Jo Jarrell 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In a procedurally subtle custody modification case, the Court of Appeals held that the trial court properly applied the traditional “best interests” custody modification factors — rather than the factors promulgated under the relocation statute — even though the modification matter substantially arose from the Mother’s relocation. In effect, the Court held that if a parent fails to litigate relocation timely, then a subsequent litigation custody modification does not apply the relocation statute factors, even if the parent’s relocation plays heavily in the custody determination.

NOTE: This case underscores that, when one parent relocates without filing a statutory notice of intent to relocate, the other parent should analyze whether it makes sense to promptly initiate a custody modification based upon the other parent’s relocation.

FACTS AND PROCEDURAL HISTORY:
Father and Mother married in 2003, and resided in Vincennes. In 2008, they had their only Child. In 2010, Mother filed for divorce, and the resulting agreed-upon Decree provided for joint legal custody, and equal parenting time with an alternating seven-day schedule.

In 2011, Mother quit her nursing job in Vincennes to move to Carterville, Illinois – an approximate three-hour drive from Vincennes — to be with her new fiancé. Despite the move, for nearly two years the parties continued their alternating week parenting time schedule set forth in the decree, meeting halfway each week to exchange Child. Importantly, at the time of Mother’s relocation, Mother did not file a notice of intent to relocate, nor did Father file any objection to Mother’s relocation despite being well aware of it.

In 2013, as Child was nearing the start of kindergarten, Father filed a petition to modify, noting Mother’s relocation and arguing that the alternating weeks parenting time schedule would be impractical once Child started school. After a hearing that included an in camera interview with Child, the trial court modified custody, granting primary physical custody to Mother, and giving Father parenting time of three weekends per month and nearly all of the summer.

Father appealed.

At the heart of Father’s appeal, the factors a trial court should consider when modifying custody in a relocation case are different than in a traditional custody modification. In a traditional custody modification, the focus is on the “best interests factors”; the relocation statute adds to the best interests of the child various “relocation factors,” such as the relocating parent’s reasons for the relocation, the hardship relocation would create, etc. (The 2008 Baxendale case discusses the difference between the statutes in greater detail.)

Here, Mother provided Father with written notice of her intended relocation, but never filed a formal notice of intent to relocate with the divorce court. At the crux of this case is whether Father’s obligation to file an objection to the relocation was triggered since Father was well aware of the relocation, even though Mother never filed a notice of intent. The Court of Appeals resolved the question as follows: “[B]ecause we find that Father acquiesced to Mother’s relocation, the Modification Statute — not the relocation statute — supplies the factors that the trial court should have considered in determining whether to modify custody.”

Reviewing the merits of the custody determination, the Court noted that there was detailed evidence presented to support a conclusion that Child’s educational interests were much better served by being with Mother, that Mother and her fiancé provided a good living environment for Child, and that Mother had made better daycare arrangements for Child during Mother’s working hours than Father had for Father’s working hours. As such, it was within the trial court’s discretion to award custody to Mother.

To view the text of this opinion in its entirety, click here: Dustin Lee Jarrell v. Billie Jo Jarrell

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Electronic Spying & Your Cell Phone: Protecting Your Family Law Clients

Welcome back to Law Tips. I’m pleased to continue the discussion of digital evidence with valuable commentary on electronic surveillance by Tim Wilcox, of International Investigators, Inc. In last week’s Law Tips our family law panel offered interesting information on current trends in digital evidence and a few pointers for keeping your clients private activities private. If you missed it, you’ll find that post at the conclusion of this article.

Have you had experiences with clients, or perhaps on your own, that made you suspicious that activities may have been surveilled through a cell phone? Would you recognize the signs of spyware? Tim Wilcox assures you  that illegal surveillance through a cell phone is a definite possibility. The following are facts and examples he offers to assist you in providing counsel and making a decision on how to proceed in this digital age.

Cell Phone Spyware Facts:

  • The manner in which spyware is installed on the phone is dependent upon the capabilities of the phone itself.
  • Smart phones can have spyware downloaded from websites, Bluetooth connection, mms messages, and pc connection.
  • There is no single spyware program that can be installed on all phones since there are many different OS’s and each one must have code written for the specific OS.
  • Symbian OS is the most common OS but has hundreds if not thousands of different versions depending on the software development intended on the device. Many spyware programs cannot work for more than a few versions, if even more than one version.
  • Spyware programs that can be installed via Bluetooth connection claim to be able to install software remotely but as with all Bluetooth devices it must have been paired with the target phone first.
  • It is possible for the remote installation of spyware onto a target phone, but this involves “tricking” the user into downloading and installing the malware.
  • Sending bogus mms messages with the intent to install malware is the easiest way to trick a target user. By sending messages with fake links could get the user to unknowingly download spyware programs. Most of these attacks involve making the user think the messages came from the carrier and posing as upgrades to the firmware on the phone especially through email. Some techniques use photos embedded with third party stegnography hiding the spyware.
  • Some spyware claims that it can extract data and voice from a target phone without installing any spyware on the target phone. We are still researching a specific software with this claim but at this time we can neither confirm nor deny this possibility.
  • Spyware programs can collect the following information and possibly more: contact data, mms, sms, phone call history, email history, webpage history, pictures, video, GPS location, cell tower triangulation history (less accurate), file system information.
  • Spyware programs can remotely become a covert third party to conversations as well as use the phone as a bug so that room audio is available whenever the bad guy chooses. The spyware can alert the bad guy when a call is made as well as texts and emails so they can call the phone and listen in. No call history for the bad guys phone is saved on the phone although it will show up in the service providers records.
  • As far as prevention of spyware installation is concerned, Blackberry’s have the best protection by far. The security code can only be guessed a certain number of times before it completely erases all information from the phone and has no obvious “backdoor” to circumvent this issue. Other phones can be protected more or less by passwords but the password must not be too easy to guess and some phones can allow a reset of the password, which is not that hard to accomplish in the wrong hands.
  • There is no known blanket spyware protections that will protect all cell phones.

What Are Some Indicators That My Cell Phone Might Have Malware/Spyware?

Top 10 suspicious indicators that your cell phone might have illegally installed spyware:

  1. Battery is warm when not in use
  2. Battery life is noticeably diminished each day.
  3. Some Blackberry’s; communication icon on right screen is flashing.
  4. Small pauses of audible communication while talking.
  5. Light audible tones, beeps or clicks throughout conversation.
  6. Flashing or flickering on display or change of brightness.
  7. Some spyware programs require the spy to manually mute their phone, therefore you might hear them in the background at the beginning of conversation or when they tap in.
  8. Slower internet access.
  9. Suspicious 3rd parties have detailed knowledge of your private conversations and locations. (GPS)
  10. You have opened a suspicious email or one from a potential spy. (Allowing Trojan horse to install spyware remotely)

The smarter the cell phones the easier it is to hide spyware. If the eavesdropping perpetrator has effectively installed spyware on your phone, then that perpetrator has total control, i.e. obtain all text messages, emails, internet sites visited GPS location, photos and videos obtained, etc.

Can I Examine the Cell Phone Myself to Obtain Evidence?

It is nearly impossible on most phones to detect malware without the use of sophisticated software. Not only is forensic spyware detection software expensive, it is also highly complex and difficult to master. Furthermore, the software is only as good as the examiner who utilizes it. The examiner must not only know how to operate the software to its full potential but also be able to manually search through the data (lines of code) to find the spyware. This is particularly useful if any evidence obtained is to be introduced into a court of law.Credibility is very important in technical evidence.

Making the right decisions on acquiring and protecting digital evidence is becoming more important every day in the family law practice. I thank Tim Wilcox for providing an introduction to the cell phone spyware facts that could be effecting clients as we speak. Find more digital surveillance information at: www.iiiweb.net.   And keep an eye on this blog for more advice.

If you are interested in viewing the comprehensive On Demand or Video Replay presentation of “Electronic Spying and Tracking Spouses in Divorces:  What’s Available? What’s Appropriate?” from ICLEF’s Annual Family Law Institute, Click Here.

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About our Law Tips faculty participants:
Tim Wilcox, International Investigators, Inc, CEO, Indianapolis, is a skilled and well-known Indiana investigator.  He specializes in security consultation, internal theft investigations, protection of proprietary information and communications, computer and cellular forensics, and litigation support.  He has been instrumental in reducing corporate shrinkage and eliminating vulnerabilities for companies worldwide. Mr. Wilcox is a member of the World Association of Detectives, the National Assn. Of Legal Investgators, the Society for Competitive Intelligence Professionals, the American Society for Industrial Security and the Indiana Association of Professional Investigators.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

 

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