Parents and Children's Equality = Equal Parenting of Children
January 2002 Newsletter
Dear Friends of Indiana Families:
Three PACE members attended the Domestic Relations Committee meeting todayat Indiana Judicial Administration. This was the first meeting that we'd been able to attend for a few months since the December meeting was a part of the Judicial Conference and was not in Indianapolis.
Much of today's meeting was on the topic of the mediation project. At thispoint, it appears that the mediators will come from a pool of "senior judges" who are available to the courts for various needs. A senior judge is, basically, a retired judge who has been approved for ongoing duties as assigned by the courts. They may conduct trials or hearings, or do other approved work. They are paid only $50/day for their work, however, but achieving a minimum number of hours per year results in ongoing benefits (health insurance, etc.) paid by the state. As a result, and for very little additional money, the court can train and use these experienced people to act as mediators. Since mediation has been identified as a revenue opportunity for members of the Bar and others, care has to be taken that the senior judges do not appear to be performing work at a subsidized rate. As such, it is probable that access to these low-cost mediators will be primarily reserved for Legal Aid/Legal Services, indigent, IV-D cases and some pro se litigants. Nominal charges may still apply, with such charges reimbursing the state for a portion of the expense. This program will not be a "mediation entitlement" program, which would not be popular at a statehouse already struggling to address a serious budget shortfall. All things considered, I believe that this program is still at least a year away, probably more (16-18 months?).
Several bills of interest to the Committee (and us!) are before the GeneralAssembly. These include:
HB1335 - Allen County (Ft. Wayne) has had a successful mediation/alternativedispute resolution program going for a few years now. The funding on the program comes primarily from a $20 surcharge for divorce filing fees. There is a bill before the legislature to permit other counties to enact similar programs. The bill's author thought that the Domestic Relations Committee would review the various court plans for similar programs and approve/disapprove them. The committee has no time or funding for such, but is interested in knowing what the various courts are doing in this regard.
It is likely that the bill will pass the legislature in a revised form topermit the counties to begin such programs of their own volition, and obtain funding from filing fees.
SB178 - In its brief description to the Committee, it appeared to be arequirement for placing a social security number on hunting or fishing licenses. Ostensibly, this would be so that the SSNs could be run against a database of obligors having child support arrearages. (Apparently, those who don't pay child support are likely to hunt and fish with their extra time.. or more likely because they need the food!) The bill sponsors said that on bills of this type, there always seemed to be organized opposition, and were afraid that the bill would not even get a hearing. The "real concern" (call to action) is that some $30,000,000 in Title IV-D funding to the state is at risk due to federal guidelines (requirements). The committee was ready to recommend legislative committee action (hearing, passage) on the bill "as is" until we pointed out that there was a lot more to the bill than the overview clearly stated. For one thing, the proposed revisions to the Indiana Code would mean that notice to someone whose license(s) were being revoked was no longer required. With the additional changes the bill suggests, the person who then has no notice would also no longer be assured a hearing to address the allegations against them. This caused the Committee great concern, and what was originally a "sure thing" for recommendation became the subject of suggested revisions. I believe that some of the concepts will pass in some form so as to not jeopardize the $30,000,000, but believe it will be a substantially stripped-down version: only the minimums required to retain the funding. The bill is being pushed by FSSA and IV-D folks as the only way to retain federal funding, but in its present form, it would also substantially lower their administrative requirements (costs).
HB1336 - This bill sponsored by Pond and Hasler "..establishes a rebuttablepresumption that joint legal parenting is in the best interest of the child..". Note the new language: "parenting" rather than "custody". It removes all the issues the court would have considered in IC 31-9-2-67 (such as the wishes of the child, close/beneficial relationship between the child and person seeding custody, living in proximity with the other parent, etc.) and leaves ONLY "..whether the persons who would be jointly parenting are able to communicate and cooperate in advancing the child's welfare." Note that the new language removes the requirement that they be "willing". "Ability" is required, not "willingness". That could result in some interesting courtroom questioning! "Oh, you're are ABLE but just not WILLING to communicate? That meets the test for joint parenting!" <G> Unfortunately, the Committee remains split on their recommendation of this bill, so it is unlikely to even see a committee hearing. New member Judge Scopelitis (St. Joseph County) argued strongly and passionately for the committee to recommend the bill's passage. Judge Donahue (Clark Co.), the committee chair, was also in favor of it, though not as outspoken. Judge Cynthia Ayres (Marion Co.) was the most outspoken AGAINST it. In the end, the Committee remains with "no recommendation". Each year, though, we are getting more people in power who are in favor of the change. It is likely that the bill will pass the House, and it is just as likely that Senator Bray (a practicing Morgan Co. atty and chairman of the Senate Judiciary Committee) will fail to even give it a hearing in his committee... meaning it will die there... again.
SB223 - Requires a court to order DNA testing if a party challenges theaccuracy of a non-DNA test in a paternity action. The Committee felt that most contested paternity actions were now using DNA testing anyway. The cost has dropped from $800 to about $200 (less than 1 month's child support, by my observation!). There was actually more discussion of the hospital paternity form which (presumed) fathers are encouraged to sign at birth. This form acknowledges that they are the father, and have the rights and obligations of such, simply by signing it. No test. If there are second-thoughts, they'd better come within a VERY short period of time... 30 days by my recollection... or there is no recourse. The IV-D folks would rather have a name to go after than confirming that the man really is the father. There have been several court cases challenging the form when a DNA test later confirms no biological relationship. Even if fraud is present, the "father" only has a limited amount of time to figure it out! If the legislature has time to deal with the bill, I'd expect it to pass.
HB1077/HB1245 - Provides that a child support arrearage order can beenforced through the same alternatives as a child support decree: contempt, wage assignment, other remedies. The committee would not go so far, however, to recommend HB1245 which would allow recovery from certain retirement plan funds, such as TERF (teachers retirement fund) and PERF (public employees).
Again, these bills are being primarily driven by the child supportenforcement office.
HB1192 - Provides that an unemancipated child of 18 who is not attendingschool, but may only be partially-supporting themselves, might have a modification of their child support order rather than termination of it. There would be no modification or termination, however, if the child was not attending school or employed because they were caring for a physically disabled custodial parent. While the judges said that they often reduce child support in such "partial emancipation" cases, the committee had no opinion on a recommendation, and thought the bill looked like it's introduction probably satisfied someone's constituent. It appears to me to be a heart-wrenching way to get the obligor to continue to support the custodial parent. It all ends eventually... plan ahead!
Finally, there was a fair amount of discussion on the problem of expeditedchild support modification hearings for reservists being called to active duty. Reservists called to active duty could have a substantial decrease in income, possibly for an expended period of time! Income withholding would be shifted from the employer to the military, which could result in the accumulation of a substantial arrearage and/or the inability of the reservist to support themselves. The "bottom line" to this discussion was that when the reservist-parent is notified to "get his things in order", one of those things should be to file a motion for child support modification with the court. Without that, the Indiana court CANNOT retroactively modify the support obligation! National action to include language in the "Soldiers and Sailors Relief Act" (which prevents foreclosure of active duty military homes and other things) could address this problem for all states, but as yet, that hasn't happened. The courts will be requested to expedite hearings, but most courts would be hard-pressed to even get an emergency hearing scheduled within 30 days. The Soldiers and Sailors Relief Act does (supposedly) prevent any hearings in the reservist's absence, so the matter would be continued until their return. Of course, there is a matter of "recovery" if support is retroactively reduced. Judge Ayres thought that the feds should be required to make up the support deprived from children. I'd agree, but extend it to say that they should also make up the self-support deprived for the reservist at the same time! When the family suffers economic hardship, it should NOT just be the noncustodial parent who does all the suffering.
Again, thanks to Jerry Jarman for bringing this last item to the attentionof the Committee and our state senators. I encourage others of you to speak up when you find these issues which need attention!
One such issue is the matter of Indiana child support guidelines. Four yearshave passed since the last changes were determined and adopted (1998). The feds require that CS Guidelines be reviewed every 4 years to make sure that they continue to be economically justifiable and applied equitably. That review will happen over the course of the spring and summer, possibly culminating in a presentation to the statewide Judicial Conference in December. I will let you know where email can be sent to the Committee, as well as the time/place for a public hearing (probably July 19th in the Supreme Court chambers). As indicated above, the Committee DOES listen to individuals! Items of concern which have been brought to their attention already include the 10% credit (one Committee member said that noncustodials "..should not be paid to see their kids..", which is now she sees the 10%! Your observations may differ!!!), treatment of Subchapter S income for minority business owners, abatement during extended visitation (how much, what constitutes "extended visitation"?), abatement of support while incarcerated ("..ain't gonna happen..!"), and others. If you have identified your concerns, get your thoughts together in preparation for your upcoming opportunity to make a difference! You may not even have to take a day off work to do it!
I apologize for the length of this email, but without the regular productionof a PACE newsletter, still wanted you to know that things continue to happen... more good than bad... for non-intact Indiana families. As usual, there is always more need than the existing manpower can address. If you have the time and interest, but don't know where you can be effective, please let me know: I have some suggestions! There are things which may not take more than a few hours a month, and there are things which could take several hours a week. You determine how big a difference you want to make, and how much time you have to do it. There's no lack of opportunity!
I wish you and your children well.
President, Parents & Children's Equality
CRC of Indiana