Tag Archive | "child custody"

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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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

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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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Can you or Should you Record Your Children’s Telephone Calls in Indiana?

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

The Indiana Parenting Time Guidelines provide for parents and children to have reasonable phone access to each other. The guidelines also provide that parents and children are entitled to private communications. But what if the other parent has concerns for the child’s well-being related to such communications? Can a recording of these communications be admitted into evidence? And does a parent risk violating state or federal wiretap laws?

The Indiana Court of Appeals addressed these issues in Apter v. Ross, 781 N.E.2d 744 (Ind. Ct. App. 2003). In that case the Father recorded a phone call between Mother and Daughter. The trial court did not allow the recording into evidence, but the Court of Appeals held that the recording should have been admitted as it did not violate the Wiretap Act.

The court in Apter, supra, explained that in a civil case a recording may be admitted if a proper foundation establishes that 1) it is authentic and correct, 2) it does not contain matter otherwise not admissible into evidence, and 3) it is clear enough to be intelligible and enlightening to the jury. In order to meet the second requirement, the recording must not violate the federal or state wire-tapping laws, as those laws exclude from evidence any interception of communications which are in violation.

The Federal Wiretap Act (18 U.S.C. § 2510 et seq.) prohibits a person from intentionally intercepting communication without the consent of one party to the communication. There is an exception for communications intercepted by a subscriber in the ordinary course of business. This exception has been held to apply to parents, who are the subscriber, as raising their children is their “business.” Scheib v. Grant, 22 F.3d 149 (7th Cir. 1994). To fall within this exception, a parent must be acting out of concern for the child’s well-being. This test focuses on the parent’s motivation and not whether or not the child’s well-being was actually at risk. Therefore, so long as the parent establishes that the act of intercepting the communication was motivated by a genuine concern for the child’s well-being, the recording does not violate the Federal Wiretap Act and may be admissible.

Indiana has a Wiretap Act (I.C. 35-33.5) as well that prohibits interception of communications without the consent of either party to the communication. In Apter the Court held that the recording did not violate the Indiana law because Father had the right to consent to the interception on behalf of his minor daughter. Father had joint legal custody of Daughter and pursuant to Indiana Code 29-3-3-3(a), unless otherwise determined by a court, a parent has the power to execute consent on behalf of a minor under any statute. Because Father’s power to consent on Daughter’s behalf had not been limited by any proceeding, under Indiana law he had the authority to consent to the recording on behalf of his daughter and, therefore, did not violate Indiana’s wiretap laws as the consent of one party is all that is required.

While a recording of a phone call between a parent and a child may be admissible if the above requirements are met, parents should not attempt to abuse these limited exceptions. The Parenting Time Guidelines permit phone access between parents and children and they are entitled to private communications without the interference of the other parent. It will be the burden of the parent intercepting the communication to show that they were truly motivated by concern for the child’s well-being as specifically related to the intercepted communication. A court could find a parent interfering with the child’s communications to be violating the guidelines and in contempt. Furthermore, continued egregious interference with the other parent’s relationship with the child could lead to a modification of custody or parenting time. Therefore, parents should not attempt to intercept communications between the child and other parent unless there are exceptional circumstances truly causing the parent to have genuine concerns for the child’s well-being pertaining to that specific communication. This is a fact-sensitive and legally complicated matter that should be discussed with an attorney before recording any such conversations. Many states ban all recording of conversation so you should consult an attorney in your jurisdiction.

Prepared by Megan Gehring of Richard A. Mann, P.C. Attorneys at Law, www.rmannlawoffice.com

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Richard A. Mann has been practicing Family Law for more than 36 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.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Family Case Law Review: Indiana Supreme Court Vacated COA Opinion on Excessive Visitations

Case: Stanley Kahn v. Beverly (Kahn) Baker
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In a grandparent visitation case, the Indiana Supreme Court affirmed the trial court’s order that gave the grandparents a significant visitation schedule: approximately 79 days per year, 24 of which would be overnights. The transfer vacated a Court of Appeals opinion from earlier this year in which the Court of Appeals determined the extent of the visitation schedule was excessive.

In its opinion, the Supreme Court was clear that trial courts should have broad discretion in fashioning a grandparent visitation schedule, that there were no specific statutory limitations on the amount of time the visitation schedule could provide, and that the appropriate amount of visitation will inevitably vary depending upon the circumstances of each case. Here, the trial court’s visitation order was appropriate given the young age of the child, the significant prior involvement the grandparents had in the child’s life, and the fact that much of the visitation was thoughtfully scheduled to occur on the Father’s call weekends.

Chief Justice Rush, joined by Justice Rucker, wrote a separate concurring opinion to suggest a preferred, less deferential analysis for grandparent visitation orders that would give heightened sensitivity to the constitutional considerations set forth in Troxel and elsewhere – specifically, that court-ordered grandparent visitation is necessarily in tension with parents’ constitutional rights to make decisions for their children. “I find it unhelpful to frame this issue as involving our usual ‘substantial deference to the trial court’s determination of family law matters.’” However, under the facts of this case, her less deferential analysis would have reached the same conclusion to affirm the trial court.

To view the text of this opinion in its entirety, click here: In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D.

To read the original digest of the Court of Appeals’ opinion, Click Here.

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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