Tag Archive | "Divorce"

“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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Court Not in Err in Protective Order Violation, Then Ordering GPS Montoring

Family Law Case Review

Case: P.S. v. T.W.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: In a protective order violation matter, the trial court did not err when it found Husband in violation of the protective order and then ordered the Respondent to wear a GPS monitor as a consequence.

FACTS AND PROCEDURAL HISTORY:  Husband and Wife were in the midst of a divorce when Wife filed a petition for order of protection against Husband. The trial court held a hearing, concluded that Wife had presented adequate evidence in support of her petition, and a standard, comprehensive protective order followed.

Just over two weeks later, Wife filed an emergency motion to show cause alleging various violations of the protective order by Husband, including that Husband had been watching Wife, taking property from her, hacking into her email account, and attempting to communicate with Wife through a third party, all in violation of the underlying protective order. Based upon the evidence presented, the trial court agreed with Wife that Husband had violated the protective order. In response, the trial court ordered Husband to commence GPS monitoring and stay at least one mile away from Wife’s residence. Husband appealed.

Husband’s argument upon appeal included a due process argument that he was never put on prior notice that GPS monitoring might result from the hearing. The Court of Appeals rejected Husband’s due process argument by noting that Indiana’s protective order statute expressly states that GPS monitoring is an appropriate consequence for a protective order violation. And, since knowledge of the rights and remedies prescribed by statute is imputed to all persons, Husband’s argument that he was not on notice of a possible GPS monitoring order was without merit.

Husband also argued that there was insufficient evidence presented to the trial court to support a conclusion that Husband violated the protective order. The Court of Appeals viewed this as a request to reweigh the evidence, which it declined to do.

The trial court’s GPS monitoring order for violating an underlying protective order was affirmed.

To view the text of this opinion in its entirety, click here: P.S. v. T.W.

 

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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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Father’s Child Support Arrearage Still Not Dischargeable after 20 Years

Family Law Case Review

Case: Derek H. Elwood v. Wendy A. Parker
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Father’s child support arrearage of more than $150,000 was not dischargeable (or entitled to any relief at equity) even though Mother made no effort to enforce the support obligation for 20 years, which was approximately two years after the younger child’s emancipation.

FACTS AND PROCEDURAL HISTORY:  Mother and Father were married briefly in the 1990s, they had two children together, and then divorced in 1995. As part of the dissolution, Mother was awarded custody of the children and Father was ordered to pay child support of $169 per week. After making four months of support payments, Father stopped paying child support, moved away, disappeared, and never made another support payment.

Father had no relationship with the children during this period. Mother remarried and Mother’s new husband stepped into the de facto role of the two children’s father.  The children were not aware of Father’s existence until Mother told them as teenagers. Mother made no effort during this period to locate Father or to collect his growing child support arrearage.

In 2015, two years after the younger child’s emancipation and 20 years after the divorce, Mother located Father and filed to determine his support arrearage. After a hearing, Father was ordered to pay an arrearage of $157,555, plus interest of $20,434, plus Mother’s attorney’s fees of $2,800. Father appealed.

On appeal, Father advanced an argument that he was entitled to some type of relief given the amount of time that had passed, and that Mother had made no effort to enforce the arrearage in a more timely manner. Father also argued that Mother’s new husband stepping into a role of a father figure for the children, also warranted some relief on the arrearage.

The Court of Appeals underscored that a retroactive modification of a child support order – which is effectively what Father was requesting – is appropriate in only very limited circumstances, none of which applies here. The Court also noted that Father provided no authority, and the Court found none on its own, to support any argument that step-father assuming a father figure role for the children could have the effect of relieving Father of his child support obligations.

The trial court’s arrearage order was affirmed.

To view the text of this opinion in its entirety, click here: Derek H. Elwood v. Wendy A. Parker

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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 Infringed upon Mother’s Custodial Rights

Family Law Case Review

Case: In the Paternity of J.W. Bailey R. Dailey v. Justin L. Piersimoni
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court’s phase-in parenting time order infringed upon Mother’s custodial rights by delegating decision-making power to a social service provider.

HELD: Trial court erred when it held Mother in contempt for not doing enough to arrange supervised parenting time and therapy sessions with the social service provider, because the order that required same did not place any specific, unambiguous scheduling obligations upon Mother.

FACTS AND PROCEDURAL HISTORY:
Child was born to Mother and Father in 2009. Paternity was established in 2012. At the time, Father was in prison for battering Mother, and Mother was granted sole legal custody of Child.

After his release from prison, Father sought parenting time with Child. After a hearing, the trial court issued a supervised, phase-in parenting time order to be overseen by the “Family Ties” program in Angola.

Father and Child’s initial supervised parenting time sessions were therapeutic in nature, supervised by a Family Ties therapist. However, Mother then requested that the parenting time sessions be supervised by someone else. Mother and Family Ties worked to schedule sessions with a different supervisor, and when that scheduling process was unsuccessful, the director of Family Ties wrote a letter to the trial court stating that Mother was non-compliant. A contempt petition by Father against Mother followed.

Though Mother testified as to the conflicts and other circumstances that made scheduling Family Ties sessions very difficult, the trial court found Mother in contempt “for denying parenting time.”  Mother was sentenced to 30 days in jail, which Mother could purge by paying $750 towards Father’s attorney’s and demonstrating immediate compliance with the trial court’s orders. Mother appealed.

On appeal, the Court concluded that the trial court had improperly delegated to Family Ties. As the sole legal custodian, it was Mother’s decision whether child would receive mental health care and, if so, from whom. When the trial court enforced Family Ties’ assignment of Father’s therapist to also provide therapy to Child, it usurped an authority that belonged to Mother and gave it to Family Ties. This was error.

As to the contempt finding, the Court found that Mother’s apparent conflicts that did not allow her to schedule Family Ties sessions (e.g, Child’s gymnastics) were in good faith. Because the trial court’s parenting time order imposed only broad and ambiguous obligations upon Mother, Mother had not failed to do anything that was specifically required of her. Therefore, the finding of contempt was error.

In a 2-1 decision, the trial court’s order was reversed.

Judge Robb’s concurrence and Chief Judge Vaidik’s dissent discussed that Mother never appealed the original May 2016 parenting time order that allowed Family Ties the discretion in question and, thus, whether Mother should be required to live with its consequences as a result.

To view the text of this opinion in its entirety, click here: n the Paternity of J.W. Bailey R. Dailey v. Justin L. Piersimoni

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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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