It can be unnerving during the course of litigation to turn over to your attorney and even opposing counsel personal information. In a family law case for example, discovery can consist of providing tax returns, bank statements, medical records, and even phone records.

Much of this information is personal to you, and would not even be shared with extended family or the closest of friends. However, now you are handing it over to your attorney and opposing counsel. The reasoning behind this is that your attorney cannot advocate what is best for you without all of the information. Even still, it can seem overwhelming to have so much information out of your possession.

So, what happens with your information after it is turned over? The first thing to be sure of is that your attorney has a duty of confidentiality. Your attorney is charged with keeping your information safe, and should keep your file appropriately to that end.

If information needs to be given to the court, however, there is a safeguard there to keep your information private as well. Indiana Administrative Rule 9 protects personal information and puts forth the process for information safekeeping.¹

The text of Rule 9 itself explains the purpose of the rule, which is generally to allow the public access to records and the court to have access to all of the information it needs while not making your personal information public record for anyone and everyone to see. This allows the litigant to make the best case using the necessary information, without worry that this will be seen outside of the court.

The definition of what information is protected is also found in the text of Rule 9. For example, adoption records created after July 8, 1941 are confidential and excluded from public access. Records relating to drug tests are also confidential, as are records of juvenile proceedings.

Further, records of child abuse or information that relates to a protection from abuse or no contact order are confidential as well. And medical, mental health, and tax records are confidential, unless otherwise determined. There are exceptions, but as a general rule, the policy of Administrative Rule 9 is to keep personal information private and out of the realm of public access.

In order to make sure the information remains private, there are options to ensure confidentiality. The litigant or attorney can redact the information that is confidential such as Social Security Numbers or dates of birth. Also, the litigant or attorney can file on green paper.

The green paper filings go to the court like any other filings or documents, but are kept separately from the records that are open to the public. Essentially, they are part of the file, but still not accessible as that part of the file is not for public access.

As with so many things in life, access to information is a balance. There is certainly a need for people to be able to access public records, and our system is built on the premise that public records are available for review. However, when one’s personal and confidential information is being offered to the court, public access must be restricted.

So, discuss openly with your attorney about your case and what documentation is needed or has been requested. And, know that confidential information that falls under the umbrella of the Rule will remain private.

Ciyou & Dixon, P.C. practices law throughout the state of Indiana. This blog post was written by Bryan Ciyou, Esq. and Jessica Keyes.

1. http://www.in.gov/judiciary/rules/admin/index.html#_Toc313012868

Anyone who has ever watched any television program that references criminal trials has heard of the Fifth Amendment Privilege against self-incrimination. However, the extent and protection of the Fifth Amendment is not quite as simple as television may lead you to believe.

At Ciyou & Dixon, P.C., we often encounter domestic cases (divorce or paternity) where there is also some sort of underlying criminal component. Either a party has been recently arrested for drugs or alcohol, or there is an allegation of abuse and/or neglect against one or both parents. Any pending criminal issues will further complicate the domestic issues.

Particularly on point here are CHINS (Children in Need of Services) cases. In a pending CHINS matter, a claim of abuse or neglect is often at issue. Making a statement or admission in a CHINS proceeding could implicate one in a criminal matter, and that information would be admissible in a subsequent criminal case.

Under the United States Constitution¹, under the Fifth Amendment² “Rights of Persons”, one included right is the right not to be compelled in any criminal case to be a witness against himself (emphasis added).

Similarly, in Indiana, under the Indiana Constitution, Article 1, Section 14 provides similar language.³ The language of the Indiana Constitution refers to “criminal prosecution” as opposed to “criminal case” noted in the United States Constitution.

So, now that the background of the right against self-incrimination is established, how does that apply in a domestic case? As noted above, both the United States and Indiana Constitutional language protect against self-incrimination in a criminal case. Generally, domestic cases are categorized as civil cases (there can be criminal components such as protective orders and the like, but generally, domestic cases are not criminal).

Civil cases do not share the protection against self-incrimination. Therefore, there is no civil Fifth Amendment right against self-incrimination. However, this does not mean one cannot assert same. For example, if it is believed by one party that the other is using drugs, the parent may be asked about drug use, and he or she can assert the Fifth Amendment.

When that Fifth Amendment is asserted though, it is unlike the criminal case. In criminal law, if the Fifth Amendment is asserted, the court cannot consider the assertion against the defendant. However, in civil law, if the Fifth Amendment Privilege is asserted and a question is not answered, the court may consider this and use that in evaluating the testimony and position of the party.

In an Indiana Court of Appeals case from 1985⁴, the Court established that one’s refusal to testify in a civil case cannot be used in a subsequent criminal proceeding, but “does not prohibit the trier of fact from drawing adverse inferences from the refusal to testify”.

Therefore, the criminal privilege remains protected while the civil privilege is allowed but can be construed against the party. One is able to assert the Fifth Amendment Privilege in civil cases, but the Court is also free to draw negative inferences due to the privilege asserted.
There are many critical and difficult issues that accompany the Fifth Amendment, and a balance between civil and criminal cases is one. If there is a pending criminal issue in your domestic case, make your counsel aware so that you can discuss the nuances of the Fifth Amendment and how it can best be utilized (or not) in your case.

We hope you find this information useful in your education of the Fifth Amendment Privilege. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana. This blog post was written by Bryan L. Ciyou, Esq., and Jessica Keyes.

1. United States Constitution
2. United States Constitution, Fifth Amendment
3. http://www.in.gov/legislative/ic/code/const/art1.html
4. http://scholar.google.com/scholar_case?case=6986752145652925772&hl=en&as_sdt=2&as_vis=1&oi=scholarr

The American Judicial System is generally based on the premise that each party pays his or her own attorneys fees unless there is a statute or contract that otherwise rules-in fact, this practice is known as the American Rule.

However, there can be instances in lower courts where one party is able to recover attorney fees from the other. For example, in family law, if one parent has denied the other parenting time for no proper reason, it is possible for the denied parent to request and possibly receive attorney fees.
The thought process behind this practice is that had it not been for the one parent denying the other parenting time, the denied parent would not have had to go to court and advance the fees for litigation over an issue caused unilaterally by the other parent.

Therefore, there are several exceptions to the American Rule that would allow parties to recover attorney fees. However, in the Court of Appeals, it is quite difficult to recover attorney fees.

The public policy behind this decision is that it might cause potential appellants to not appeal for fear that if they lose (again-after they have already lost in the trial court), they will be financially responsible for both their own attorney fees and the attorney fees of the prevailing party.

It is not impossible to recover attorney fees on the appellate level, however. In a 2010 case involving probate of a family will, two brothers, one an attorney outside of Indiana, filed an appeal to the probate court’s dismissal of their motion.¹

The Court found that the brothers had waived several of their arguments in the lower court, and lacked the ability to appeal those issues. Further, most issues that were appropriate for appeal were not properly constructed or supported.

The Court found that there were several aggressive claims with no support and the brothers did not cite the record of evidence from the probate court. The Court held the brothers were not in compliance with the appellate rules.

Based on this non-compliance, the Court found that the brothers had engaged in procedural bad faith in the Indiana Court of Appeals in bringing forward their appeal inappropriately. The Court remanded to the probate court to determine appropriate attorneys fees for the estate from this appeal and held that attorneys fees should be assessed against the brothers.

The payment of attorneys fees by the opposing party is fairly uncommon in trial court and very uncommon in the Court of Appeals. However, moving forward on an appeal in bad faith can be a basis for same.

As always, be knowledgeable and discuss proper arguments with your attorney. One may not appreciate a trial court’s ruling, but an appeal may be improper if not made in good faith and executed following the rules and regulations of the Court of Appeals.

Ciyou & Dixon, P.C. practices law throughout the state of Indiana. This blog post was written by Bryan L. Ciyou, Esq. and Jessica Keyes.

1. http://www.ai.org/judiciary/opinions/pdf/12021001lmb.pdf

The dynamics of what constitutes a “family” have been rapidly changing over the past several decades. What used to be considered family with a mother, father, and two children is no longer the norm, in many cases. Often, families now include step-parents, grandparents, half siblings, etc. This changing make-up of the family unit has led to more complex custody and visitation cases.

As advocates at Ciyou & Dixon, P.C., we often see extended family members or sometimes even unrelated parties who have cared for a child, physically and financially, for a lengthy period of time have the child suddenly taken back from them by the biological parents.

This is often traumatic for the caregivers and children, and they wish to gain court-ordered custody of the child they have raised. This blog post addresses legal authority that might apply to establish custody in the de factos or extended time by Indiana Parenting Time Guidelines.

One way to achieve this is to file for de facto custodian status. Indiana Code defines “de facto custodians” as parties who have been the primary caregiver and financial supporter of a child for a prescribed period of time.¹ There are limitations to how and when the time can be calculated, and the potential de facto custodians must prove by clear and convincing evidence that they have been the primary caregivers and financial supporters of the child; such may be made by evidence of receipts, photos, and testimony regarding same.

However, within the term “de facto custodian”, lays one major component of the title: custody. One who has been the primary caregiver and financial supporter of a child for the prescribed period of time does not simply request visitation if the biological or other caregivers have taken over. Visitation falls under other statutes, including statutes for post-adoption visitation for biological parents and grandparent visitation. These are separate and can be more limited and do not apply.

For example, in a recent case involving Mother’s former boyfriend whom Mother’s child called “daddy” and whom he helped raise for three (3) years, the Court of Appeals reversed the trial court’s decision that former boyfriend be granted visitation.

Had former boyfriend sought and attained a de facto custodian status, Parenting Time may have been examined and found appropriate, but the granting of visitation was not in line with Indiana law.² That is a de facto custodian may be awarded custody or more parenting time with the child. Parenting time is far more expansive than visitation.

In another case involving a biological father who consented to the child’s maternal grandparents adopting his child due to medical expenses and Father being of a young age and later seeking visitation, the Court held that the Father should seek visitation under the post-adoption visitation statute. The concurrence discussed the potential de facto legal custodian issue, and how Father could have asserted it, but did not.³

Often, legal language is strict and unforgiving, and having an attorney who is knowledgeable in a specific subject matter is often immensely helpful. Knowing that de facto custodian status is not a visitation issue is an important distinction when looking to regain custody or parenting time with a child you formerly provided physical and financial care for.

If visitation is truly what is desired, there are other, separate statutes that may apply and be a means to attain visitation. De facto custodian status is the way to go to obtain custody and or expended parenting time. Discuss with your attorney the desired outcome and the prior and current relationship with the child to act in both the best interests of the child and you.

Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou and Jessica Keyes.

1. Ind. Code § 31-9-2-35.5
2. K.S. v. B.W. 954 N.E.2d 1050 (Ind.Ct.App.2011)
3. J.S. et. al. v. J.D. 941 NE2d 1107

How Missteps Can Cost You Your Case

Appeals are difficult and time consuming for both clients and attorneys–and the Indiana appellate courts who decide them in a very efficient manner (the Indiana Court of Appeals is one of the fastest appellate courts in the United States).

Clients with a final order from the lower court looking for a reconsideration by an alleged error of fact and/or law sometimes appeal. However, the appellate process is much more rigid and rule-driven than the trial court process, which is inherently disjointed because the problems of life are messy and Indiana’s trial courts get these cases when every other means of resolution has failed.

As such, attorneys and litigants who handle the cases themselves are tasked with following a strict set of rules and regulations, including the proper color of the cover and word count and/or page limit, and specific time deadline.

If the rules and procedures for an appellate brief are not followed exactly and/or in a material way and properly, a brief can be rejected and an appeal dismissed, ending any chance for appeal. So, it is possible that if the brief writer does not adhere to the proper rules and procedures and, for example, turns in a brief one day late, the client’s ability to appeal may be dismissed as untimely.

Therefore, it is important that an appellate litigant or his attorney have a working knowledge of the appellate rules and procedures--and be especially aware of timing. Often, extensions in the Court of Appeals are more difficult to procure and must be sought in advance of the due date. In fact, certain cases have very strict prohibitions on time enlargements.

In a case within the last few years, Galvan v. State of Indiana¹, the Plaintiff was charged with criminal acts and pled guilty to same. She waived her right to appeal in her plea; however, she attained the aid of an attorney and filed an appellate brief. Belated appeals are sometimes allowed in criminal cases (after a deadline passes). The reason for this is the loss of the liberty and freedom by incarceration–usually more severe punishment potential than civil remedies.

Back to Galvan. The attorney Galvan retained did not follow the strict appellate rules, and, the Court noted, had been warned before on at least three (3) occasions that his briefs were not up to appellate standards. Each appellate brief requires a statement of facts, and in the case at hand, the Court found Galvan’s was inadequate. The brief did not provide the relevant facts, citing to the record from the lower court. Rather, the statement of facts simply recited the charges against Galvan.

The Court also noted that the brief did not cite properly to the record. With appeals, no new evidence can be offered that was not presented below. All arguments and evidence must come from the prior proceedings in the trial court (typically contained in the trial testimony and exhibits). Therefore, essentially every fact (or inference) in the appellate record comes directly from the trial court record, and same must be cited. This brief did not properly cite, again incongruous with the appellate rules.

The Court also found the Table of Contents lacking and the cited cases to support the brief position inadequate as well. For all of these reasons and because the attorney had been forewarned, the appeal was dismissed. The appeal sought by Galvan failed, and there was no other means to pursue an appeal.

Court processes are full of rules and regulations, but especially in the context of appeals. Consulting with and retaining an appellate attorney who is well-versed on the rules and also well-organized is paramount for even a chance for a successful appeal. Thus, as with every other aspect of your life as it relates to law, educate yourself and make a meaningful and reasoned choice about your counsel. If your appeal is not properly perfected and handled, it will increase the chances it will fail.

This blog has hopefully provided you an insight into the appellate process and how it differs from the trial process. If it has, then this blog has met it educational goal. Ciyou & Dixon, P.C. practices law throughout the state of Indiana. This blog post was written by Bryan Ciyou, Esq. and Jessica Keyes.

1. http://www.ai.org/judiciary/opinions/pdf/12030706ehf.pdf

Starting in July 1st of this year, the age children are emancipated for the purpose of child support will change from 21 to 19. With the enactment of this new law, there will be a transition time where attorneys advocate it meanings, and the trial court and ultimately Indiana’s appellate courts agree or disagree to give it legal meaning. The scope and limits of this new statute are undetermined at this time.

One of the main topics addressed in the new statute is education. There is a specific exception for educational expenses to be allowed to continue–after age 19-- by order of the court. However, the definition of educational expenses can be unclear, and may include more than simply tuition. At least, that is the argument attorneys will make for the parent who seeks some type of financial support to facilitate education.

This blog will explore potential arguments regarding what might be included in education expenses, as it pertains to the new emancipation law. As this law is not yet in effect and, as noted, it is unknown how it will be interpreted, this blog simply creates potential ideas and arguments regarding “educational expenses”, and the potential for costs included under that umbrella term.

One potential expense that may be included as an educational expense for children over 19 in school is support for a college student living at the home of one parent or the other. The child is still enrolled and attending school, and therefore, educational expenses are appropriate. The argument is similar for living on-campus or near, but off-campus, those expenses of housing the child may fall under the educational expenses.

Often, educational expenses include not only tuition, but room and board, fees, books and supplies, and other incidentals covered by the monthly bill from the educational institution to the student and his or her family.

A student who chooses to live at home while attending school often saves money, as dorm fees or off-campus apartments are often quite expensive. However, if the child is living at home and there is no bill from the university for housing, it may seem unfair that the parent housing the child is not somehow compensated by the other for housing the child.

Although it seems very similar to child support, the non-custodial parent paying the parent housing the college student may be an educational expense, paid to the parent instead of the university or off-campus apartment complex.

Another grey issue involving educational expenses are school breaks. Often college students have extended breaks from college, and many spend that time at home. For instance, Christmas break is often 3-4 weeks, along with Spring break, Thanksgiving break, Fall break, and Summer vacation. All of these together can add up to several months.

Even if a college student lives on-campus or in an apartment off-campus, they may be at one parent’s home for many months out of the year. Could this time for school breaks spent at home entitle a parent to support as an educational expense? Again, this is unclear, but it is something to think about as your child embarks on his or her college education, particularly since child support in the strictest sense will be no more.

If this blog has you thinking about what is fair or unfair or included or not included in your situation, as it relates to the new emancipation law, then it will help you help your lawyer frame the best argument for or against inclusion of certain costs under the umbrella term of “educational expenses.” Ciyou & Dixon, P.C. practices law throughout the state of Indiana. This blog post was written by Bryan Ciyou, Esq. and Jessica Keyes.

Change is a Constant

The Indiana Parenting Time Guidelines (“IPTGs” or “Guidelines”) offer a baseline for parents in this midst of a divorce or paternity action a guide for parenting time (previously called visitation). The IPTGs continue application after the initial action and custody order.

Parenting time issues, disputes, and misunderstanding are common problems Ciyou & Dixon, P.C. advocates encounter. With revised IPTGs on the table, we provide this blog to help readers to perhaps anticipate the future and eliminate misunderstandings and some disputes.

Because the IPTGs impact parent-child time, they examine holidays, children’s basic needs, parenting conflicts, and more to get to the ultimate needs and best interests of the child. However, like any law or guideline, there is a need to update and revise as society changes.

Currently, the IPTGs are under revision, and the comment period has closed, ultimately allowing a new version to be ordered by the Indiana Supreme Court.¹

Some proposed changes involve just moving sections of the Guidelines around–for readability and to make the IPTGs more useful. For example, “A Child’s Basic Needs” was moved to the beginning of the IPTGs in the proposed changes, and often the addition of wording about the “best interest of the child” has been added elsewhere throughout the IPTGs.

Among other reasons, this is to reinforce the notion that a child’s best interests, among all of the laws and dynamics in a case, are paramount.

The proposed changes also notes, more than once, that parents (and attorneys) should cooperate, and parents should attempt to create their own parenting time schedule based on the individual needs of the family and the best interests of the children. When this does not work, the IPTGs can be useful in creating a template/minimum standard for families.

On the other hand, parenting time arrangements can contain a provision that if the parties are unable to agree on a particular matter, at least until they can get into court, the provisions of the IPTGs control.

In the spirit of cooperation and parents creating their own plans, the IPTGs suggest creating a Parenting Time Calendar and offer websites to act as a starting point. Further, the Guidelines note that parents share the responsibility for parenting time, and children are not responsible for same.

This means the parents should not put the child in the middle to fight for more time. The Guidelines go further to list Unacceptable Excuses for Denying Parenting Time, including the weather is bad or the child has no clothes to wear.

The proposed changes also make two major additions to the IPTGs: the addition of sections regarding Parenting Coordinators and Parallel Parenting. As noted earlier in this blog, there are a number of more specific changes and additions in the proposed changes; but these are two entirely new sections and the focus of the rest of this blog.

To review all of the proposed changes including overnight parenting time and phase in for non-custodial parents and responsibility for and access to medical and school records, review the proposed changes in full.

The first new section covers Parenting Coordinators. Essentially, a Parenting Coordinator acts as a type of referee between parents who are high conflict (defined as parties who demonstrate a pattern of ongoing litigation, chronic anger and distrust, inability to communicate, etc.). For these parents, a Parenting Coordinator can aid in resolving conflicts without the need to go to court for each and every parenting dispute.

As importantly, a PC can address issues as they arise, mitigating lingering hostility from issue upon issue lumping together, leading to a contested trial weeks later. At this time, the issue itself and fighting often becomes more important and bigger than the dispute. Dealing with issues as they arise sometimes diffuses this situation.

You may be asking, what is a PC: Parenting Coordinators are not mediators or judges. They listen to each side and remain impartial, but often side with one parent or another regarding an issue of contention, considering the child’s best interests.

For example, if Mother wants to take child out of state for a wedding and Father does not, the parties, and possibly the child, would meet with the Parenting Coordinator to discuss the issue. The Parenting Coordinator cannot create an order, but they can submit a proposal to the Court, that can order same.

Under the proposed changes, a Parenting Coordinator can be appointed without the consent of the parties, for an initial period no longer than two years. The court can divide the cost between the parties, and absent egregious action, neither party can request termination of the Parenting Coordinator for the first six months of appointment to allow proper time to see if Parenting Coordination will work.

Parenting Coordinators are to keep information in confidence, but what parents tell the Parenting Coordinator is not confidential. The purpose is to promote communication between parties with communication issues. Further, the Parenting Coordinator can speak to third parties regarding the family situation, including teachers.

Another resource added by the proposed changes for high conflict parents is Parallel Parenting. This concept is a way for parents who cannot communicate to not have to. During each parent’s parenting time, that parent makes the day-to-day decisions. Communication is strictly limited between parents to avoid conflict, and often only includes communication regarding emergencies and communication in writing.

Parallel parenting is not intended as a permanent solution, but can allow a transition to shared parenting time. However, Parallel Parenting time often is not compatible with joint legal custody, mid week parenting time, make up time, and opportunities for additional parenting time. Parallel parenting can be used as a tool to transition from supervised parenting time to unsupervised, and can benefit from the aid of Parenting Coordinators or family therapists.

The proposed changes have not yet passed and been made official, and agreements under previous versions of the IPTGs remain unchanged. However, if you have an upcoming matter to which the IPTGs with proposed changes may apply, review the proposals and be knowledgeable about the process.

At Ciyou & Dixon, P.C., we hope our education commitment allows you to be familiar with the terms and processes - allowing you to better understand potential agreements and orders and to act in the best interests of your child and family. In other words, we hope for the best interests of your children, and that this blog in some way aids in less conflict.

Ciyou & Dixon, P.C. practices law throughout the state of Indiana. The firm has a large focus on domestic relations issues of all types. This blog post was written by Bryan Ciyou, Esq. and Jessica Keyes.

1. http://www.in.gov/judiciary/3763.htm- website with proposed 2012 IPTG changes

Ciyou & Dixon, P.C. recently posted a blog on depositions and technology and what happens after a deposition is given. This blog focuses on some universals of the actual experience of a deposition–the general rules that are given by the deposing attorney to each deponent. They vary slightly from case to case.

However, if you face a deposition and understand these rules, it will go a long way to minimize the unknown and fear associated with it. And as always, having sufficient knowledge of the process and general rules, allows litigants to have less stress and better answers to the questions.

A deposition is one type of discovery. Discovery is the process attorneys use to gather information from the opposing side, and third parties, who are not actually named in the case. There are multiple ways to gather information, but one method is a deposition on oral questions in which the deponent goes to the deposition location, is sworn in, and is asked a series of questions,¹ usually beginning with opposing counsel.

An important note on depositions is that they are under oath. You must swear to tell the truth, and a court reporter is often there, recording your answers. So, to begin, the attorney asking the questions will often introduce themselves and generally explain the deposition process.

After the deposition is over, the deponent will have a chance to review the deposition and make any changes for errors, such as the word “for” inserted instead of “four”. These are made on an errata sheet. These sheets are to correct true errors, not provide a better answer to the question.

This background noted, now back to the five rules:

Rule 1: Understand the Question Being Asked.

It may seem like a simple proposition, but is critical if you are being deposed, that you understand the question precisely. This is a statement under oath that is being recorded, if you are confused about a question, or unsure of what is being asked, and you respond anyway, that mistaken answer could later be used against you.

For this reason, if you are unsure or confused about a question, stop and speak up. The attorney will rephrase until you understand exactly what they are asking, allowing both the attorney and the deponent to be on the same page. Or the attorney may ask the question in several parts.

Rule 2: Give Oral/Verbal Answers.

Another important aspect to understand in a deposition is that because it is being recorded by a court reporter, oral answers must be given. Because the process is more informal than a courtroom, it is often just the parties sitting around a desk or table, deponents often shake their heads or use “uh-huh” or “nuh-huh” in their responses. Those types of responses are not captured in a deposition or are not well reduced to writing. Make a clear and understandable answer.

Stated differently, these non-verbal answers are not helpful because they do not create a clear answer for the record. The deponent should verbalize “yes” or “no”, or otherwise, leaving no confusion in the typewritten record that will follow. It is often a hard habit to break, as this is a normal understood part of our communication.

However, court reporting instruments are not people and do not determine the precise answer or validate it through other non-verbal ques. The deponent should speak clearly and verbalize all answers to ensure what they are intending to say is recorded. And even a verbal “uh-huh” and “nuh-huh” sound too similar to decode.

Rule 3: You Will be Asked about Medications.

Because a deposition is under oath, the attorney will likely ask if you are on any medications, drugs, substances, or have any mental (or physical) health conditions that would impede your ability to answer questions. Be aware of this.

If you are suffering any impairment, discuss this with your attorney beforehand. The last thing you want to do in high-stakes litigation is give an inaccurate answer because of a migraine, physical pain or the like. If this is your situation, the deposition may have to be rescheduled.

Rule 4: Breaks.

Depositions are often long processes, and breaks are often required. However, the timing of breaks may be important. If you, as the deponent, are unsure of how to answer a question and you begin to panic and ask for a break before you answer, the other side will likely ask you to answer the question before the break. Ask your attorney before the deposition how to handle questions that you are unsure about and breaks to avoid panicking.

Rule 5: Objections.

In the courtroom, objections are fairly common, with attorneys piping up often with claims of hearsay and other objections. The trial court then either allows the questions (overrules the objection) or sustains it (meaning the person testifying cannot answer the question). However, in a deposition, the rules for objections are much more lax.

Attorneys can object for the record and sometimes do, but the objection is essentially just to preserve for the record, as there is no judge to rule on the objection. So, do not get discouraged if your attorney is allowing hearsay and not frequently objecting. On the other hand, attorneys may object frequently and still allow you to use the question. This preserves the right to object in the event the deposition would be used in the courtroom at a later date.

In a few cases, such as if the question asks if you committed a crime or what your attorney advised you, the attorney may not only object, but instruct you not to answer the question. This is a technical area that will ultimately be addressed by a trial court. Follow your counsel’s objection.

Knowing the universal rules of depositions will not prepare you for every scenario in your deposition, but it will allow you to focus on your answers, rather than the process. Be sure to discuss your pending deposition with your attorney, and ask if they can help prepare you for the questions. Depositions are another way to discover information, and knowing the rules can allow you to quickly and effectively complete your deposition.

Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou and Jessica Keyes, law clerk. We hope you find this blog post useful. If so, it has met its goal.

1. Ind. Trial Rule 30.

During a divorce or separation proceeding the issues of custody, parenting time and child support are determined, if not by an agreement approved by the court, than after a hearing. Child support is the duty of both parents.

In practice, child support is generally paid by the parent who does not have physical custody (non-custodial) to the parent who was awarded physical custody. This occurs because the noncustodial parent is typically awarded parenting time and given a credit against his or her child support obligation.

In addition, there is a presumption against “negative” child support, meaning the custodial parent pays the non-custodial parent.

These complex legal considerations are frequently encountered and addressed by Ciyou & Dixon, P.C. advocates.

In determining either parent’s child support the court considers the goal of child support: to provide the children with the same financial resources and standard of living they would have enjoyed had the marriage continued. As such, Indiana’s child support guidelines take into consideration the financial resources of both parents, the number of children, the standard of living the child(ren) have enjoyed and would enjoy if the marriage had not been dissolved, and any physical, mental, or special educational needs of the child(ren).¹

A parent’s actual child support obligation is computed using the Indiana Child Support Guidelines and the mathematical formula it contains. The court will consider the paying parent’s income and living expenses so that the amount of support ordered is reasonable so as to also not deny the paying parent the means to self-support.²

Initial child support obligations are often determined at the time of the dissolution of the marriage, or determination of paternity, however due to significant changes in circumstances which make the current support order unreasonable parents may find it necessary to ask the court to modify the child support obligation.

Modifications may occur within one year if amount of supported to be paid is unreasonable, which typically occurs because the paying parent has his or her income drastically reduced, or has lost his or her income altogether. Sometimes situations arise where the parent who is ordered to pay child support has reduced or eliminated his or her income.

After the passage of one year, the trial court may modify child support if there is a twenty percent change in the amount to be paid.

In support determinations, a court may find that a parent is voluntarily unemployed or underemployed. This sometimes occurs when a party remarries and does not have to work due to the subsequent spouse’s higher income. When a court determines that the paying parent has a potential to earn income, but volunteers not to do so, the court may impute income. In other words, the court will attribute income to that parent where no income is actually earned, but the ability and potential to earn exists, typically commensurate with earning ability and the economic circumstances in play at the time of the determination.

In calculating the imputed income, the court will consider factors such as employment potential, probable earnings based on work/earning history, special occupational or educational qualifications, job opportunities, and earnings levels in the community. Where none of these factors exist, a court may impute income of at least the federal minimum wage level.

The purpose of imputing income is to discourage a parent from choosing not to work, or take a low paying job to avoid significant child support payments. The court has wide discretion in imputing income, with the goal of assuring that the paying spouse does not evade his or her child support obligations.

Imputing income to determine child support obligations is often very fact specific for each case. The goal to keep in mind is the benefit and welfare of the child(ren). Imputing income is not a means of punishment to the obligor spouse for being out of work, but rather the court’s attempt to create a fair financial obligation situation for the parents relative to the goal of child support–which is for the child and not an obligation that should be evaded by not working or working below one’s skill set.

Child support can be a complex matter to compute at times. This is especially so with an unemployed or underemployed parent. As a domestic litigant, it is crucial you relay such suspicions to your attorney in order to put on market and job earning evidence for imputation of income. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana. This blog post was written by Bryan L. Ciyou, esq. and Lori Schmeltzer, law clerk.

1. Ind. Code §31-16-6-1
2. Ind. Child Support Guideline 2
3. Ind. Code §31-16-8-1, Ind. Child Support Guideline 4
4. Ind. Child Support Guideline 3A
5. Ind. Child Support Guideline 3A
6. Ind. Child Support Guideline 3A – Commentary 3c
7. Sexton v. Sedlak, 946 N.E.2d 1177, 1187 (2011)

Relocation is a legal issue the custodial parent (although it does apply to non-custodial parents) often present Ciyou & Dixon, P.C. attorneys. Relocation is sometimes a financial necessity for work. Most adults no longer have a job for life, and custody relocation is often necessary to maintain or advance employment opportunities.

Usually, there are other reasons associated with the desire to move, such as one parent has family in another state or a significant other. However, relocation is not a simple task in divorce and paternity matters, and these latter factors can obscure the case. There is the child and his/her best interests, and the other parent, who often opposes a relocation where the child is moved further away.

Relocating can be in a child’s best interests.

For the most part, litigants should focus on how a move may benefit the child and/or not materially impair the non-relocating parent’s relationship with the child(ren). That still presents a difficult balancing of the evidence by the trial court, and for the most part, the Court of Appeals gives great deference to the lower court’s decision.

When a relocation case is reversed on appeal, it provides an excellent learning tool for attorneys and potential relocating parents about the outer boundaries of the relocation and a trial court’s discretion. The Court of Appeals recently considered a case where it found the trial court had originally denied Mother relocation.¹

In this case, the mother filed her intent to relocate to Tennessee from Indiana and a request to temporarily relocate. Mother relocated while the motion was pending, until the trial court ultimately denied her motion, whereupon mother returned the child to Indiana.

At the hearing on relocation, the father prevailed. Mother then appealed. The Court of Appeals found that the trial court had relied heavily on the fact that mother would be moving to the city of her boyfriend. However, the trial court overlooked that the mother also would be making over $30,000 per year more in a highly distinguished job, with less work hours.

The relocation statute notes there is a burden shifting between parties. The parent wanting to relocate has the burden of proof to show the relocation is made in good faith and for a legitimate reason. Mother made her showing. If this burden is satisfied, the non-moving parent has the burden to show the proposed relocation is not in the best interest of the child.²

Here, however, the trial court relied too heavily on the fact Father and child enjoyed a close relationship and that moving would disrupt that. However, the Court of Appeals found controlling and countered that this would be true in any relocation of distance, and would not allow most parents to relocate. Therefore, this argument is non-persuasive here to indicate it is not in the child’s best interests.

Further, and again, the Court of Appeals held that mother’s legitimate purpose for moving was a better paying and distinguished employment opportunity, the benefits of which the child would enjoy. While mother may have had a boyfriend there as well, it did not take away from the legitimate reason and good faith decision the Mother made to relocate.

Relocation is difficult on all parties involved in a divorce or paternity. Understanding that the relocating parent should have a legitimate reason and move in good faith, provides a safety net that one parent will not move away just to leave the other parent behind. The court will always look to the best interests of the child, and use this variable heavily in their determination.

If relocation is a potential to you or your co-parent, work to communicate each parties’ concerns and reasoning. This may allow an understanding of the move, and hopefully, a plan to keep parenting time with the other parent as frequent as possible. Perhaps even an agreement. If this fails, it is important to demonstrate at trial that a litigant’s (relocating) benefit in moving also benefits the child.

We hope this blog post gives you some insights into custody relocation and the required intent or reasoning necessary to make a strong showing, and how to set forth the reasons for relocation, where while personally beneficially, also is in the context of the child’s best interests. Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou, esq. and Jessica Keyes.

1. D.C. v. J.A.C; http://www.in.gov/judiciary/opinions/pdf/03301202jgb.pdf and ___ N.E.2d ___ (Ind.Ct.App. March 30, 2012) (2012 WL 1066097)
2. Ind. Code § 31-17-2.2-5.