Ciyou & Dixon, P.C. Solving the complex problems of life. 2018-04-19T00:10:27Z https://www.ciyoudixonlaw.com/feed/atom/ WordPress CD http://www.ciyoudixonlaw.com <![CDATA[What You Need to Know About The Three Most Common Types of Appeals On Child Custody]]> https://www.ciyoudixonlaw.com/?p=9955 2018-04-19T00:10:27Z 2018-04-19T00:09:47Z What You Need to Know About The Three Most Common Types of Appeals On Child Custody
A significant number appeals taken to the Indiana Court of Appeals stem from paternity and divorce cases. In most cases, the appeal involves some form of disagreement regarding child custody orders issued by the trial court. This blog explores the three most common types of appeals, what you need to know to make an informed […]
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What You Need to Know About The Three Most Common Types of Appeals On Child Custody

A significant number appeals taken to the Indiana Court of Appeals stem from paternity and divorce cases. In most cases, the appeal involves some form of disagreement regarding child custody orders issued by the trial court. This blog explores the three most common types of appeals, what you need to know to make an informed choice to appeal, and what kinds of issues are stronger for a “win” on appeal.1

The first type of appeal is the original custody determination. In paternity cases, this is generally litigation brought shortly after the birth of the child. In divorce cases, this what occurs after a final hearing. In each circumstance, the trial court weighs all the factors, including some set forth by statutes, that impacts the child’s life to make a determination as to which parent to award custody in the child’s overall best interests. These are stronger cases for appeal because there is no presumption for either parent and both are on equal ground. In these appeals, assuming the trial court did not make an error of law, the appeal focuses on the facts presented in the evidence (testimony and exhibits) to show the trial court abused its discretion. This means the trial court’s decision, looking at these factors, was not in the child’s best interests. The Court of Appeals defers to the trial court’s weighing of the evidence—judgment of the people—because the judge observed all the verbal and non-verbal communications. However, if all the evidence on appeal leaves the Court of Appeals with a “firm conviction” the trial court made a mistake it may reverse a trial court’s custody order.

The second type of common child-custody appeal is where a parent has filed a petition to modify custody alleging a substantial change has occurred in the current custody situation and maintaining custody is no longer in the child’s best interests. This is a harder and higher burden in the trial court. Therefore, the initial custody litigation is so important. However, there are three common scenarios where custody is modified and leads to a viable appeal. The first is where a string of “little” events in the current custody situation, considered together, demonstrates a substantial change in circumstances where keeping custody in the parent is not in the child’s best interests. This is generally reflected by a drop in the child’s grades, absences from school, and getting into trouble or acting out. The second is where there is some catastrophic event, such as a custodial parent’s arrest. The third is when a child gets older (14) by statute and wants to live with the other parent. The parent seeking custody modification must prove a substantial change, and if the trial court judge does not modify custody and maintains custody that is not in the child’s best interests, the Court of Appeals may reverse. The key to a successful appeal in these cases is keenly tied to presenting the evidence to support the substantial change at trial.

The third appeal stems from relocation. The reality in today’s world is that jobs move and new relationships form for parents, but parents are tied together forever by a child. Assuming a court denies relocation or modifies custody, there may be errors of law that may be raised on appeal that are given no deference by the Court of Appeals. These are typically the burdens of proof. The parent seeking to relocate with the child must establish the move is made in good faith and for a legitimate reason. If it is, the burden shifts to the other parent. Woven into these burdens is the overarching best interest’s standard. Thus, it may be a question of law is the issue for appeal relative to the burden on each parent. Also, a key point on relocation that may result in a strong appellate case is often lost on parents who do not want the change—relocation itself and by itself is not a basis to deny relocation with the child or modify custody. This would punish the relocating parent and interfere with his or her constitutional right to travel.

All in all, these reflect the most common types of custody appeals and potential challenges and arguments to present on appeal. Appeals are highly technical both in the appellate rules and type of argument that is best to result in a reversal if you seek an appeal. Ciyou & Dixon, P.C. attorneys handle appeals from all Indiana counties to the Indiana Court of Appeals and, as necessary, to request the Indiana Supreme Court to accept the case and consider it on appeal. This blog is written for general informational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.

The term “custody” for purposes of this blog covers physical custody.
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CD http://www.ciyoudixonlaw.com <![CDATA[Considering A Prenuptial? Three “Red Flags” You Need to Know and Avoid!]]> https://www.ciyoudixonlaw.com/?p=9945 2018-04-06T02:17:36Z 2018-04-06T02:17:36Z Three “Red Flags” You Need to Know and Avoid with Prenuptial Agreements
A prenuptial agreement is nothing more than a contract that specifies how certain matters will be handled and decided if the parties’ marriage later fails (or a spouse dies). The most common scenario where prenups are used occurs when one spouse has significantly more assets. The prenup typically protects these assets brought into the marriage […]
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Three “Red Flags” You Need to Know and Avoid with Prenuptial Agreements

A prenuptial agreement is nothing more than a contract that specifies how certain matters will be handled and decided if the parties’ marriage later fails (or a spouse dies). The most common scenario where prenups are used occurs when one spouse has significantly more assets. The prenup typically protects these assets brought into the marriage from being divided with the other spouse in the event of a divorce (or death). These agreements are allowed under by statute in Indiana and are generally enforceable unless they try to specify terms related to children that may be born between the parties. However, because prenups are contracts, and there is the constitutional right to contract, some parties often contract for far more than may realize and cause an unaware spouse significant hardship in the future in divorce or on death. This blog covers the three biggest “no-no’s” for prenups.

A somewhat common provision in a prenup is that in the event of a divorce, neither party may seek an award of attorney’s fees from the other by the trial court. The Indiana Divorce Act (and Paternity Act) allows for a court to award a party legal fees and expenses to further cases for several reasons. The most common reason is a disparity or difference in incomes. The spouse who earns significantly more may be ordered to pay fees. If there is a prenup that contracts away the right to seek fees from the court, it can create a great hardship for the financially inferior spouse to fund divorce litigation, such as a dispute over child custody or other matters not covered by the prenup. This creates a scenario where the more financially able spouse can outspend and potentially out lawyer the other spouse. This is not fair or right, but just the way it is. The several attorney’s fee provisions of the Divorce Act are there for a reason and you should think long and hard about entering into a prenup that contracts this right away. Ask yourself if you could afford such litigation? If not, you have your answer. Don’t do it.

A second, but not as common provision in prenups, is one that contracts away the right to spousal maintenance. Indiana is not an alimony state where one divorcing spouse can be ordered to pay the other “alimony” for a long duration. Under Indiana’s divorce law, a court can order a spouse to pay the other “rehab” maintenance to get a vocational certificate or work skills to be self-supporting. This type of maintenance can only be ordered for up to three years. The other type of maintenance is for a disability. Thus, a spouse who becomes disabled during the marriage can be awarded disability maintenance for the duration of the disability, even for his or her life. Contracting this away by a prenup removes (or potentially removes, as there are arguments these provisions are not enforceable because they violate public policy) the very safety net the legislature enacted for you in passing divorce laws. In most cases, unless each party is wealthy, this provision of a prenup is dubious at best and should be avoided.

The third provision sometimes found in prenups is one that wipes out Indiana estate law and a spouse’s right to obtain money from a spouse upon his or her death. Normally, a spouse, even one who does not have children with her or her partner, can “take against the will” and received monies from property solely owned by the other through Indiana’s estate law where there is a will. This right also exists where the party dies intestate (without a will) This is a complex area, but it is nevertheless possible to contract away this right too by a prenup with such provisions. Ironically, at least in the case of divorce and custody dispute or need to seek maintenance, the provision against an award of attorney’s fees make any potential challenge that much more difficult. Who would pay the attorney’s fees to make the challenge you need or want to make—you!

The takeaway from this blog is that prenups can be simple tools to protect assets a spouse brings into marriage, or, much more with far-reaching implications in the event the marriage ends, for the lesser-empowered spouse, by his or her partner’s divorce or death. Clearly, prenups are good tools to be considered and used in some cases to pre-decide the future and minimize costs and conflict on death or divorce. However, they can be much, much more, and, frankly, train-wreck your future. Know this and contemplate and enter a prenup after consultation with experienced counsel. Or you may pay the price, literally. This blog was written by attorneys at Ciyou & Dixon, P.C. who handle domestic cases of all types, including prenuptial agreements, throughout the State of Indiana. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.

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CD http://www.ciyoudixonlaw.com <![CDATA[But It’s Not Our Money!]]> https://www.ciyoudixonlaw.com/?p=9939 2018-04-04T02:57:21Z 2018-04-04T02:57:21Z Three Ways to Protect “Loans” From Family and Friends in Divorce Proceedings
Three Ways to Protect “Loans” From Family and Friends in Divorce Proceedings How can I protect money my parents or friends loaned me (actually “us” legally speaking) from being divided with my spouse in the divorce? A common scenario that unfolds in a divorce is a claim by the husband or wife that certain money […]
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Three Ways to Protect “Loans” From Family and Friends in Divorce Proceedings
Three Ways to Protect “Loans” From Family and Friends in Divorce Proceedings

How can I protect money my parents or friends loaned me (actually “us” legally speaking) from being divided with my spouse in the divorce?

A common scenario that unfolds in a divorce is a claim by the husband or wife that certain money in the marital estate and asset was loaned the divorcing couple and should be repaid. In most cases, there is not a perfected loan (document) recognized under Indiana law that is automatically given protection in divorce proceedings because the divorce court cannot undo a proper, binding loan (or real estate mortgage).

Where the amount of this informal loan is significant, such as for the down payment for a house for the now-divorcing couple), a heated dispute may arise about whether the money was a gift to the parties (and the divorce court should divide it between them as is normally the case) or a loan to be accounted for in the division of assets on divorce. This blog explores three legal options for protecting an informal loan--that was really intended as a loan—in divorce proceedings.

The first option--the most practical and cost-effective in most cases--is to provide the loan document in trial evidence or have the family member, friend or person who loaned the money testify at the divorce trial about their loan, as they can be subpoenaed as a witness. While this “loan” is in the marital pot subject to the court’s ability to divide, the trial court can deviate from the presumptive equal division to allow the party to obtain a bigger share of the marital pot to repay the loan. The key here is this must be presented in the evidence by admissible documents or testimony. Your testimony alone is likely to be viewed as slanted to your position and this money viewed as a gift by the divorce court and divided equally.

Where larger sums of money are involved, your right to a divorce trial (known as a final hearing) and testimony and admission of documents about a loan may not be sufficient to protect you or the third party. In these cases, the trial rules, which are the rules that facilitate civil litigation in Indiana, provide a second potential option that may allow you to seek this person (or entity) joined as a party to the divorce case to advocate their position about the loan with you.

These rules are somewhat technical in nature, but in simple terms, they allow some third parties to be joined in a discretionary way (the court decides) and others allow joined to a case as a matter of right to protect the interests attributable to them—their loan to you. The key takeaway is the person to whom you owe money to, may be able to become a party to the litigation to further protect their interests (and yours as well so you are not “stuck” with at least a moral obligation to repay the loaned sum after divorce). This person, now a party, is listed on your caption and attends the divorce final to advocate to protect their interests.

The third option is rare, but still an option in the wide array of tools available to do justice. This is intervention. In these cases, the third party, typically a parent, has loaned the parties a substantial amount of money or placed one of their assets in the names of their child, now the divorcing husband or wife. In these cases, the third-party acts on their own and seeks to get into (e.g., intervene) in the divorce case to assert their claim against the marital estate.

Normally, the third-party (such as a parent or friend) files a petition to intervene in the divorce proceedings; the court then conducts an evidentiary hearing to determine if they should be allowed to intervene. During this hearing, the court receives evidence about any loan and if their financial position can be protected without intervention. This third party may be “hostile” to both parties, believing they were taken advantage of by loaning money that will now be divvied up between the divorcing parties without their own intervention to protect their loan.

Ultimately, divorcing parties, as well as third parties who have informally loaned money now intertwined with the divorce proceedings, have several remedies. These “loans” are otherwise presumed gifts and divided up between the divorcing parties, normally equally under the Divorce Act. Thus, the law is responsive to the unique needs of any case if the litigants and their counsel consider and properly use the tools available to them.

This is how you protect informal loans made to the parties on divorce. This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle divorce cases of all types and complexities throughout all Indiana counties. This blog is written to provide general educational information. It is not intended as legal advice, nor a solicitation for services. It is an advertisement.

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CD http://www.ciyoudixonlaw.com <![CDATA[What Types of Remedies Can the Court of Appeals Order in Deciding the Cases Before It?]]> https://www.ciyoudixonlaw.com/?p=9934 2018-03-26T21:51:38Z 2018-03-26T21:51:38Z Types of Remedies Can the Court of Appeals Order in Deciding the Cases Before It
Every litigant in Indiana administrative proceedings or trial courts has the ultimate right to appeal to the Indiana Court of Appeals. Trial courts make many orders, but typically it is the last one deciding the issues that is the final order that is subject to appeal. Usually. However, life and law are complex and sometimes […]
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Types of Remedies Can the Court of Appeals Order in Deciding the Cases Before It

Every litigant in Indiana administrative proceedings or trial courts has the ultimate right to appeal to the Indiana Court of Appeals. Trial courts make many orders, but typically it is the last one deciding the issues that is the final order that is subject to appeal. Usually. However, life and law are complex and sometimes an appealed order is not final as to all of the issues or not a final order at all. A recent case, Severance v. Pleasant View, demonstrates that even where a case before the Court of Appeals does not present a final appealable order, it may consider the case instead of dismissing the appeal; it also highlights the different ways the Court of Appeals may decide cases.

In deciding the Severance case, and issuing a written opinion, the Court of Appeals overturned the trial court’s (interlocutory) order that was not final and remanded it (sent it back to the trial court) for an evidentiary hearing on the merits of the permanent injunction sought. Further, in a key tool used by the Court of Appeals, it placed a footnote in this decision guiding the trial court to the proper and controlling statute to consider, aiding it when the case was retried to reach a final order that would be subject to a proper appeal.

Thus, as is obvious, every case—even those that do not present final orders--may be decided by the Court of Appeals and reversed on appeal with an instruction to the trial court to hold an evidentiary hearing, which would then, again, lead to a final appealable order and perhaps another appeal. The Court of Appeals may also decide a case—typically one with a final order---and issue decisions with many other remedies.

For instance, where the case is properly tried, and the evidence exists in the record, but the trial court applies the wrong law, the Court of Appeals may reverse the case and remand the case to the trial court to apply a different legal standard than it did in the first instance. This means the parties do not put on any new evidence, but the trial court decides the case on the facts (the record) already before it, which may then be appealed based on the application of the proper law to the evidence. In many such cases, a trial court may allow the parties to submit proposals as to how the case should be decided under correct law.

Because many cases involved multiple legal issues, the Court of Appeals may reverse the trial court’s decision on a particular issue and remand it to the trial court to re-decide the case on the evidence before it or receive new evidence. This too would then lead to the possibility of an appeal. Where new evidence is to be received, there may be a right to change of judge. Thus, no matter the type of case it confronts, the Court of Appeals is equipped with the authority to issues remedies that can meet the legal needs of our society. The Court of Appeals may affirm other issues and that final order of the case stands. In these cases, the Court of Appeals affirms the trial court’s decision in part and reverses it in part.

However, with all final orders decided by the Court of Appeals, there is the right to ask the Indiana Supreme Court to “accept transfer” and decide the case differently. There are very specific reasons this occurs and these are set forth in the appellate rules, such as the decision of the Court of Appeals in the particular case conflicts with its prior decisions or the case raises an important question of law that should be reconsidered. Law is not stale and sometimes needs to be changed, and the Supreme Court can grant transfer and make that change.

Lastly, the Court of Appeals may affirm the decision of the trial court on all issues. This means the decision of the trial court stands and this is the end of the case unless a transfer is granted.

In some cases of significant importance, the Court of Appeals may hear an oral argument where the parties argue the merits of the appellate case orally before a panel of the Court of Appeals.

The takeaways from this blog are the appellate process is, by nature, technical to be able to fully address the needs of a modern, complex society and there are many tools litigants and appellate attorneys use to advocate a case in the Court of Appeals. Further, the Court of Appeals has wide discretion in how it decides the merits of cases before and what it may require of litigants, attorneys, and trial courts when a case is remanded in some form. Indeed, the Court of Appeals may even elect to decide cases that are not final orders as it did in Severance where it is subject to its dismissal. Thus, chose appellate counsel wisely and understand the ways a case may be decided on appeal.

This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle criminal and civil appeals of all types and from all Indiana counties in the Court of Appeals and Indiana Supreme Court. This blog post is written for general educational purposes only and is not intended to be legal advice or a solicitation for legal services. It is an advertisement.

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CD http://www.ciyoudixonlaw.com <![CDATA[Dealing with the “Opioid Crisis” In Child Custody Proceedings]]> https://www.ciyoudixonlaw.com/?p=9928 2018-03-22T22:00:24Z 2018-03-22T22:00:24Z Dealing with the “Opioid Crisis” In Child Custody Proceedings
In child custody proceedings, Indiana trial court judges award or modify custody by considering all1 of the evidence in order to determine a custody arrangement in the child’s best interests. There are several statutory considerations for the court to weigh, including the physical and mental health of the parents, as well as any other facts […]
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Dealing with the “Opioid Crisis” In Child Custody Proceedings

In child custody proceedings, Indiana trial court judges award or modify custody by considering all1 of the evidence in order to determine a custody arrangement in the child’s best interests. There are several statutory considerations for the court to weigh, including the physical and mental health of the parents, as well as any other facts or circumstances that may factor into a child’s best interests as it relates to custody.2 For years, “soft” drug use, such as smoking marijuana, has been considered in awarding or modifying custody in Indiana.3 Further, serious drug addiction/abuse issues sometimes came before trial courts and were relatively easily handled where the impairment of the parent put the child in harm’s way—an award or modification of custody to the other parent.

So, drug use and/or abuse is not new to the Indiana courts, judiciary, or attorneys. However, in the last several years, “hardcore” illicit drug use, once limited to “crack babies” in the big inner-cities, became mainstream legal issues facing Indiana domestic courts. The first was the illicit manufacture and use of methamphetamines. Limits on pseudoephedrine purchases substantially pushed back this trend. Now a new, profound threat exists that knows no socio-economic boundaries—the opioid crises—and is the subject of national attention and problematic in every state. Parents that are addicted to opioids may be so impaired he or she presents an immediate, on-going serious risk to a child’s physical or mental health well beyond the general risk associated with somewhat common recreational marijuana use. This blog covers tools available to litigants and judges to identify and address the opioid drug4 use and abuse in child custody litigation to protect the child and meet his or her best interests.

For the most part, a parent seeking to be awarded or modify custody due to another parent’s opioid addiction and abuse must recognize and identify the problem and bring it to the attention of the court by filing a child custody (modification) proceeding. In extreme cases, an arrest for illegal opioid-related activity or DCS’ investigation may also provide some protection to the children and assist the non-addicted parent and start de facto custody (or modification) proceedings. This brings the question that is a central point of this blog post, “How does a parent who suspects his or her child is in harms’ way due to the other’s opioid abuse obtain this evidence?” Fortunately, once the parent brings this issue before the court in a custody proceeding, the rules of trial procedure and trial court’s inherent authority provide a vast array of tools to gather evidence for the case to present to the court, and thereby, protect children from a parent’s impairment by drug abuse.

For example, where opioid addiction leads to a divorce filing, there may be a police arrest and/or conviction records or medical records from rehabilitation that may be used to establish the abuse and make for a custody award (or modification where it has already been established in a divorce or paternity case). These are obtained by the discovery rules5 which allow a party to obtain records from third parties, take depositions, or ask questions of the other parent. There are technical rules that must be followed to obtain this information as well as have it prepared in a format to be admissible at trial. In addition, there are confidentiality rules that apply as well so the impaired parent’s medical records are not made public.

In practice, a parent who knows or suspects the other parent is abusing opioids works with his or her counsel to explore how the parent is obtaining and abusing the drug to determine what of such tools or mechanisms to deploy to obtain the necessary evidence, as there is way to obtain most of this information in child custody litigation. For instance, and as another example, a parent may hire a private investigator to follow the parent to obtain video evidence of the purchase of drugs or obtain other background information relevant to the issue. This is how the evidence of drug use and abuse is obtained to present to the court to factually establish why the non-addicted parent should have custody awarded to him/her or modified in the child’s best interests. Lastly, a child custody evaluation may be used to address addiction and the total issues within the family dynamic to make recommendations to the court as to what is in the children’s best interests, accounting for the addiction issues confronting the family.

During the process of gathering this evidence, but before the custody trial, there are several legal tools a litigant may use to protect the children from harm if the other parent is using and abusing drugs. One of the most common is for a party to seek, and a court to order no drug abuse, which may be monitored as to compliance by court-ordered drug screens. Depending on the nature and circumstances of what is alleged, a court may suspend parenting time or “temporarily” modify custody to protect the children while the case is being worked up for trial on the request for custody or a modification of custody. Thus, protecting the children during the litigation is also a consideration to work with your counsel, if you are enmeshed in a protracted child custody litigation. Ultimately, the bottom line is a trial court judge has the discretion to protect the children and meet their best interests so long as they are minors and subject to its jurisdiction while assisting, as necessary, the attorneys with gathering the necessary evidence for the coming custody trial.

Ultimately, after the presentation of evidence a court may award or modify custody to a parent if the other parent is drug addicted and it is in the child’s best interests. Further, the court may order supervised visits for the parent who is suffering with addiction issues, as well as drug testing. There are numerous such legal remedies that can be requested, such as drug counseling, and can be ordered by the court in deciding custody proceedings. The take away from this blog is the Indiana legal system can handle the opioid crises and effectively respond to the allegation, provide for obtaining the necessary information to decide the issue, as well as provide mechanisms for the addicted parent to have a safe relationship with the children.

Ciyou & Dixon, P.C. advocates handle domestic cases of all types throughout the state. This blog is written for general educational purposes. It is not legal advice or intended to be relied upon in specific cases. It is an advertisement.

This is directly relevant to addiction. Indiana Code 31-17-2-8. Owensby v. Lepper, 666 N.E.2d 1251 (Ind.Ct.App. 1996) (decision to award father custody was supported by the trial court’s findings that mother used marijuana during the marriage). Heroine is also at epidemic proportions, as it is often sought by those who are addicted to opioids who cannot obtain these prescriptions drugs. Indiana Rules of Trial Procedure 26 through 37.
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CD http://www.ciyoudixonlaw.com <![CDATA[Three Tips for A “Good” Divorce]]> https://www.ciyoudixonlaw.com/?p=9921 2018-03-14T02:56:17Z 2018-03-14T02:50:09Z Three Tips for A “Good” Divorce
Divorce is often the best of times and the worst of times - all at the same time. The decision to move on in life from a worn-out relationship is hard-to-impossible to make, particularly where there are children involved. The “unknowns” and “uncertainty” are what hold many people back. On the other hand, life is […]
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Three Tips for A “Good” Divorce

Divorce is often the best of times and the worst of times - all at the same time. The decision to move on in life from a worn-out relationship is hard-to-impossible to make, particularly where there are children involved. The “unknowns” and “uncertainty” are what hold many people back. On the other hand, life is short and taking steps to move to a new future when a marriage cannot be repaired is at the same time, liberating to exciting for many litigants. This blog post provides three practical, common-sense tips most litigants never think of in this context, but which can make the divorce process much less stressful and expedient. Think about them.

First, the breakdown of the marriage is often wrought with emotion and finger-pointing of who did what wrong and when. This focus, or the blame game, misdirects what you should be considering instead: What you need and why to move on. Most people focus on the actual or perceived wrongs and justify or rationalize what they want—everyone “wants” everything in the divorce. By instead focusing on what you need, you will leave space for what your spouse needs and provide a clearer path on how to operate two independent lifestyles within each of your means, resources, education, and social desires. So “what do you need to move on?” is the question you should ask yourself, not what do I want? By viewing the divorce in “what I want terms” it is sure to create impossible scenarios that will be decided—eventually—by costly litigation and maybe a trial. The bottom line is to give to the point it “hurts” as you cannot recapture the time or litigation costs on “winning”. Seek what you need, not what you want.

Second, much of what litigants expect and create their expectations on for divorce come from urban myth, a friend-of-a-friend’s bad divorce advice, or a google search. Relying on this to inform what you want or what you need is a recipe for disaster—the divorce that goes on forever and costs a fortune; everyone has heard that story or knows someone who has lived it. Instead, know the law has certain, and these should frame your expectations, and, when considered, help you get to the core of what you need. Centrally, the law presumes the parties divide the marital assets (what you have minus what you owe) equally. The law presumes one parent will have physical custody but the other parent will have very liberal parenting time. While a party might get a slightly different deviation of the marital assets and/or custody/parenting time more near equal, wild deviations from these presumptions rarely occur outside of unique situations. However, they are rare and are usually associated with protracted litigation.

Third, every divorce has a story or a theme or sticking points that led to the erosion of the marriage and divorce filing in the first place. These range from growing apart as the children have aged and each parent lives a different life outside their involvement with the children to an affair to addiction. You name it, and it has probably led to a divorce. However, most litigants never stop to think about this or seriously discuss it with their attorney. Without carefully identifying the dynamics that led to the breakdown in the marriage and the divorce filing, the divorce process itself often becomes the mechanism to punish or try to correct the past. . . . What is lost is at the same time it is punishing the punisher in terms of lost time in moving on in life, the stress of living under litigation, and the money. Identifying the divorce dynamic(s) and navigating around it(them) to the extent possible is the key to a smoother, faster and less costly divorce.

Again, and although obvious, these common-sense matters are often completely overshadowed or downright lost by the divorce process. It is substituted with the mindset of “I want him (or her) to pay”. Make no mistake, this means both litigants pay. Forget or fail to consider these tips at your peril--and pay the price. This blog is written by attorneys at Ciyou & Dixon, P.C. who handle divorce and paternity cases of all types in all Indiana counties. This blog is written for general educational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.

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CD http://www.ciyoudixonlaw.com <![CDATA[Three Key Points Regarding "Allegations" of Child Abuse or Molestation]]> https://www.ciyoudixonlaw.com/?p=9910 2018-03-06T04:45:02Z 2018-03-06T04:43:28Z Contacted by CPS or the Police for
Have You Been Contacted by CPS or the Police for "Alleged" Child Abuse or Molestation? Consider These Three Key Points You Need To “Know” And What “To Do” (Or Not Do). There is a somewhat shared knowledge in our society that some children in ordinary—to—high-risk families are physically or sexually abused. Statistics are hard to […]
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Contacted by CPS or the Police for
Have You Been Contacted by CPS or the Police for "Alleged" Child Abuse or Molestation? Consider These Three Key Points You Need To “Know” And What “To Do” (Or Not Do).

There is a somewhat shared knowledge in our society that some children in ordinary—to—high-risk families are physically or sexually abused. Statistics are hard to come by but generally indicate, on average, that one in four children is subject to physical or sexual abuse, not factoring in the significant problem of human sex-trafficking of children.

However, everyone identifies with an innocent child and sometimes what gets lost in the emotional response to the mere allegation made by a child (or for a child by someone else) is a significant percentage of allegations are false. It is a taboo topic to even question a child’s veracity or that someone would incorrectly or intentionally report child abuse or molestation—and as a result, the lives of innocent adults destroyed by rumors, and unfortunate ones, wind up (wrongfully) criminally charged and convicted of abuse or neglect or have a “True” CHINS fact-finding.

Think not, what is your first thought if you hear someone has been accused of child molesting? Here is what runs through the minds of most people: “Those things are not said and investigated unless they are true”. There is an adage that the only thing worse than being convicted of being a child abuser or molester is being acquitted. The latter leaves the open questions: “Did he or she do it and just get off on a technicality?” or “They must have had the right lawyer”.

This may not seem important to you, but it should be—what happens if you find yourself in that situation today? Precisely, what would you do if you get the call from DCS or the police to be questioned about allegations of harms against a child. . . .

You should know everyday adults who do not even have children—or are even around kids with any frequency---are sometimes alleged to have abused or neglected a child. Would you know what to do (or not) if you get that call or the police and/or DCS show up at your front door today? Your reputation, career, and freedom may well depend on your answer ensuing choices. This blog covers three key points surrounding what you need to know about why false allegations occur and what you should do if you, a loved one, or a trusted friend finds themselves in this situation.

The first point you need to understand is how you became ensnared in this surreal situation in the first place and to then accept that fact and make good choices moving forward. This starts with some basic understanding of the psychology and psychiatry of childhood development, which is extraordinarily complex but factors into false allegations in various ways.

In rudimentary terms, very young children are still developing the cognitive ability to differentiate right from wrong and reality from fiction. This makes them susceptible to making statements that may be more, or less, accurate or based on how they fill in missing pieces of information in situations they are confronted with. This with how adults close them to whom they make such statements react, whether they believe them and, what they do in response may lead to false allegations. To make this developmental point, by comparison, consider the color of stove burner that is “red” that means it is hot; this is far different from the “red” paint on a car.

The red on a stove “red” signals a dangerous situation and the other a stylistic preference of car owners. At first, young children do not understand this difference and are as likely to put their hand on a red car as a hot stove burner. The same plays out for “good” touch and “bad” touch. A child may not know the difference, and then make a statement to a parent, teacher or caregiver viewed as physical abuse or sexual assault. There are many other ways this plays out—a young (or older) child may be harmed or sexually abused and associate it (project onto) with some adult with a similar demeanor, characteristic and believe he or she is identifying the abuser.

All adults are required to report such suspected abuse and neglect, and commit a criminal act if they do not. The report is (normally) made to the CPS’ toll-free hotline. A case starts. By law, DCS and/or law enforcement must investigate every report.

The psychological dynamic plays out in different scenarios with older children. For example, a parent may “brainwash” or coach the child into believing and/or reporting abuse or neglect for a variety of reasons, from the underlying mental illness of the adult or to gain a tactical/strategic advantage in high-conflict custody cases. These are common cases where false allegations of abuse and neglect are made and reported. In addition, certain pre-teen and teenagers make a false report of abuse or molest in response having privileges taken away, such as access to electronics, in a misguided attempt to get out of such punishment.

While you may think cases with older children would be easier to investigate, assess, and close by showing the fabrication, this is often not the case: How do you prove something did not happen, given a credible report by a child or third-party adult? Further, once the false allegation is made and acted upon by the authorities, it is sometimes hard for a child to “put this genie (the allegation) back in the bottle”, particularly given the attention they are given by the investigation process itself. Most of us—adults and children--like attention.

Whatever the psychological trigger, a falsely accused parent, parents, or third party has at risk his/her job, family and freedom when facing a false allegation; and he/she pays tremendous emotional and financial costs by this time the case closes on the false allegation. You simply cannot afford to make the wrong choices if you are accused. Unfortunately, false allegations of abuse and neglect are made and will continue to be made against adults in all walks of life—and those who are not parents or frequently around children--even with the advancement of psychology and technology.

These are grossly simplified explanations of the psychological dynamics underlying false allegations of child abuse or molest and how the cases may spiral out of control—even if they are false. This is the rudimentary psychological framework such allegations arise in and the place to begin is understanding the situation you face to make good decisions about how you move forward.

Driving the psychology underpinning false allegations is the second and equally powerful dynamic you must understand--the social pressure on DCS, law enforcement, and prosecutors to take swift and harsh action against any adult abusing or molesting a child. While all these professionals have some general awareness of this psychology and this social dynamic, there is confirmation bias in all of us driven by this social pressure. Confirmation bias is how we, including those investigating (false) allegations of abuse or neglect, fill in missing pieces.

For example, a police officer investigating a situation he or she is called into may perceive a person fidgeting with and pulling something out of a pocket, at least initially, to be a gun, whereas a passerby may view the situation and what emerges as a medication bottle for an acute medical need. We all fill in missing information based on our life experiences and training. Seeing hardened abusers obviously has an impact on investigators. This helps them cope with the stressors of their job, and makes them effective. However, their tendencies should be clear; an allegation of potential abuse or neglect is probably viewed more as occurring and true than an innocent misunderstanding.

In most cases, there is only one significant protection for the accused used in the investigatory system. This is the forensic interview. In its most basic form, a forensic interview is a single recorded interview with the child with a trained forensic interviewer. The techniques vary with age, but are designed to show the veracity of the child’s situation or inconsistencies in the allegations. This is done by addressing the “incident” with the child in a non-leading way. Generically, the questions posed by a forensic interviewer are framed “what happened?” not “did this happen?”.

Forensic interviews are normally observed by representatives of the agency charged with protecting children, such as DCS and/or law enforcement. You have no input into the forensic process and how the representatives of the government act on assessing the credibility of the child’s story from the forensic interview. Correctly performed, a forensic interview may significantly aid in the allegation being “unsubstantiated” or result in a short criminal investigation with the case closed. However, forensic interviews have many limitations that may not detect false allegations.

When the forensic interview fails to sort out a false allegation, a prosecutor may just let the jury decide your fate. What you do before you get to a jury (or bench) trial may end the case or seal your fate. The same is true for a CHINS filing. How you respond may determine if there is a “true” fact-finding. A “true” finding and disposition may result in you being forced to participate in services or have your parental rights terminated.

Your only other protections are a skilled lawyer to navigate this legal landscape using your constitutional and other legal protections and rights. Make no mistake, you do not get a “do over” if you do not engage these rights to protect yourself. The take away is that innocent people are still forced through the DCS process of CHINS and/or criminally charged (and have a “true” CHINS fact-finding and/or be criminally convicted); this is the legal system we have all created and agree to abide by.

This third piece to addressing false allegations of abuse or neglect against you is your complete use of, and engagement in, the legal system by knowing and exercising all your legal rights. This is where you need and a skilled and experienced lawyer, and why you need one from the beginning. This discussion itself could be an entire blog post. However, here are the basics. The most important is you have the constitutional right to counsel in all civil or criminal inquiries that may have criminal implications before you talk with any DCS investigator and law enforcement. No matter what you are told otherwise, this is your absolute right. Most people do not get a skilled lawyer involved early on because they do not understand the social and psychological dynamics you now do and investigatory process—or they would.

In fact, most people who are falsely accused do what you do in the rest of life—tell the story to explain the situation. There is an innate desire to explain built into us all. Making any statement, without an express reason to do, is always a mistake. Furthermore, from a scientific standpoint, the brain under stress does not accurately (completely) reveal key details in making statements. Failures are not deception, but brain chemistry at work; but failing to reveal a key fact that exonerates you, only to later disclose it, begs the question for the investigator: “If it was so important then, why not say it in your statement?”. The investigator’s thought process then ranges from you are lying to cover the crime or act you have been (falsely) accused of committing to “What else is he/she lying about?”. This just fuels the investigator to believe there is merit to the (false) allegation and the investigation to continue.

There may be a time and place to make a statement in context of an investigation into your actions and circumstances over alleged abuse or molest, but that should be determined and timed by counsel; you have the absolute right to make no statements in a civil or criminal matter that may be incriminating, if that is the legal course that makes strategic sense in your case. This decision should be made after you and your counsel consider many options and courses that are different in every case, such as you conduct your own investigation into the known facts. This may also include a variety of other steps from creating timelines to consulting with various experts.

Ultimately, if you ever receive the call or knock at the door, your first step should be to obtain counsel and make your only statement that you will respond only after you have an attorney. This may not be fair or right, but it is the constitutional system we follow within the legal system that we are bound by and is the envy of the world.

This blog is written by attorneys at Ciyou & Dixon, P.C. who handle a wide array of defenses for child abuse and neglect cases in criminal and DCS’ courts throughout the State. This blog is intended for general informational purposes only. It is not legal advice or a solicitation for services. It is an advertisement.

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CD http://www.ciyoudixonlaw.com <![CDATA[The Top Three Things You Must Know About “Child Custody” Evaluations]]> https://www.ciyoudixonlaw.com/?p=9904 2018-03-01T22:56:16Z 2018-03-01T22:56:16Z The Top Three Things You Must Know About
In divorce or paternity cases, custody evaluations are common. They are provided for in the paternity and divorce statutes, as well as local court rules and discovery rules. A trial court judge has the inherent discretion and power to order a custody evaluation. In simple terms, a custody evaluation is nothing more than a trained […]
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The Top Three Things You Must Know About

In divorce or paternity cases, custody evaluations are common. They are provided for in the paternity and divorce statutes, as well as local court rules and discovery rules. A trial court judge has the inherent discretion and power to order a custody evaluation. In simple terms, a custody evaluation is nothing more than a trained professional interviewing the adults and children and reviewing materials they provide to make a written report to the trial court of what is in the children’s best interests. However, there are three things you must know to make the most of a custody evaluation. These are the topic of this blog post.

The scope or purpose of a child custody evaluation are somewhat misleading terms. These evaluations can be very broad and cover who should have legal and physical custody and what parenting time schedule would work best for the children. This is common in simple to complex divorces. More often than not, a custody evaluation is used for much narrower purposes. For instance, where parents cannot agree on legal custody matters (health care decisions, religious upbringing, or school choices) a custody evaluator may render an opinion on what is in the children’s best interests. Sometimes this is split between parents with one making religious decisions with the other making health care choices and the schooling divided, with both parents jointly making the decision. The takeaway is the parties should be very specific in what they ask the court to order the custody evaluation to address. If not, significant issues may be left with just minimal attention by the evaluator.

Perhaps the most misunderstood aspect of child custody evaluations is who performs them. Everyone from attorneys to Ph.D. forensic clinical psychologists conducts custody evaluations. This is a key decision—who you select or agree to with opposing counsel. In a “normal” case where the parents disagree, a specific skill set may not be necessary and any of these evaluators may do a good job as a neutral to make an evaluation and recommendations to the court of what is in the children’s best interests. However, many cases have very clear dynamics that are hard to decipher and create high conflict. The reasons for this may range from underlying mental illness of a parent to the desire to merely “hurt” the other parent for perceived wrongs in the relationship. In these cases, a more skilled evaluator is normally prudent. For instance, only forensic clinical psychologists may legally perform certain psychological testing that may be the key to making a best interests recommendation to the court. An example would be testing for underlying anger issues that impact the relationship and parenting. Thus, it is key to determine the right evaluator for the issues operational in the case.

Lastly, no matter how thorough the evaluation and some take months to complete and result in a lengthy report, the judge has the final say. Under the constitution, a judge is the ultimate arbitrator of a child’s best interests. What this means is a judge cannot delegate this power to an evaluator as this is an unlawful delegation of judicial power. The judge is the one who ultimately determines what is in a child’s best interests. Therefore, a report may be challenged by any party and rejected by the court. It is just a tool to aid the court. Normally, courts follow some or all recommendations of the evaluator, but if the evidence dictates something else is in the child’s best interests, he or she can make a different order. This is decided law by the Indiana appellate courts.

Now you know the most important aspects of child custody evaluations. This blog is written by attorneys at Ciyou & Dixon, P.C. who handle domestic relations cases of all types and practice in all Indiana counties. This blog is written for general educational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.

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CD http://www.ciyoudixonlaw.com <![CDATA[So, A Violation of Probation Has Been Filed: Now What?]]> https://www.ciyoudixonlaw.com/?p=9900 2018-02-28T05:51:26Z 2018-02-28T05:51:26Z So, A Violation of Probation Has Been Filed: Now What?
Probation is often a tool used by trial courts and is normally within their discretion to order in most cases. It is obviously a desirous outcome for judges, the community, and defendant. Most of the time it keeps the defendant out of jail, at home and work, and the taxpayers from paying for criminal incarceration. […]
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So, A Violation of Probation Has Been Filed: Now What?

Probation is often a tool used by trial courts and is normally within their discretion to order in most cases. It is obviously a desirous outcome for judges, the community, and defendant. Most of the time it keeps the defendant out of jail, at home and work, and the taxpayers from paying for criminal incarceration. However, violations of the terms of probation, such as drug use determined by a positive drug screen, may result in a violation of probation (VOP) being filed by probation and the defendant’s probation revoked and he or she sent to prison for the balance of the sentence. This blog covers four key points every defendant should know and consider if faced with a VOP filing.

First, unlike a criminal conviction, where the State has made its case against you (the one you are most likely on probation for) beyond a reasonable doubt, the State must show by a preponderance of the evidence the basis for the VOP. What this means is it is much easier for a defendant to be violated than convicted in the first place. For this reason, it is imperative to prepare a defense to the alleged violation, or if possible, have an agreement to an admission and terms. Unfortunately, many defendants do not consider this and just show up and admit to the violation, limiting any ability to minimize the implications of the alleged VOP or show it is untrue. An admission means legally it occurred as a matter of law.

Second, to prepare a defense, it takes time and must begin before the day of the VOP hearing. This preparation may require subpoenaing witnesses for testimony or having certified documents—all evidence--to present in your defense. Both of these types of evidence take time to procure. In addition, and related, it is important to fully work through the facts of your alleged VOP with your defense counsel to distill defenses. An alleged VOP is just that—an allegation—not a de facto determination by a court that you violated probation. However, to prepare a defense, as necessary, depending on the allegation, the facts must be developed and evidence determined; this, again, takes time and planning. The last-minute preparation the day of trial is likely too late and may erroneously lead to being violated.

Third, alternatively, skilled defense counsel may negotiate an admission to the VOP with the prosecution in advance for an agreement to a certain “plea” or outcome, such as admission to the violation where you stay on probation or only serve a short time in jail. In this case, assuming it is approved and ordered by the judge, the outcome is more certain than admission with no plan of defense or agreement. These steps minimize the risk of your worst day in court and outcome, namely revocation of your probation and serving your full back up time.

Fourth, a determination that a probationer is in violation of probation is a final appealable order. Therefore, it is key—if defending against the alleged VOP—to make the record at the trial court. In other words, the defense and the relevant evidence that is known to you to support your defense must be put into an admissible format and admitted into the evidence during the hearing for the trial court to consider in deciding on the VOP. Without this, it reduces the chances for relief (such as reversal) on appeal. Further, determination of a violation after a trial must be appealed within thirty days or the right to appeal is forfeited.

This blog is written by attorneys at Ciyou & Dixon, P.C. who handle a wide array of criminal cases, including violations of probation, throughout the State of Indiana. This blog is written for general informational purposes. It is not specific or general legal advice or a solicitation for services. It is an advertisement.

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CD http://www.ciyoudixonlaw.com <![CDATA[When You Can Appeal A Criminal Conviction or Civil Case…]]> https://www.ciyoudixonlaw.com/?p=9894 2018-02-23T01:15:20Z 2018-02-23T01:15:20Z When You Can Appeal A Criminal Conviction or Civil Case
And What Happens If You Miss the Deadline? In most criminal and civil cases, there are many court orders issued. These are “interlocutory” (temporary) orders to move a case to a final order and are not normally appealed. There are provisions to appeal certain “interlocutory” orders1 as a matter of right (during trial court proceeding) […]
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When You Can Appeal A Criminal Conviction or Civil Case
And What Happens If You Miss the Deadline?

In most criminal and civil cases, there are many court orders issued. These are “interlocutory” (temporary) orders to move a case to a final order and are not normally appealed. There are provisions to appeal certain “interlocutory” orders1 as a matter of right (during trial court proceeding) and by the discretion of the trial court (an order trial court must certify the interlocutory order for appeal and the Court of Appeals has to then accept the appeal). This blog addresses and identifies what constitutes a final order and what happens if you “blow” the deadline to appeal a final order.

In felony criminal cases, the conviction by a judge or jury is not normally a final appealable order. This is because the sentencing has not yet occurred, and the sentence itself can be appealed. In fact, the Court of Appeals has a special rule of appellate procedure to allow review of sentences and may reverse a sentence if it finds to be too harsh or lenient, namely “the sentence is inappropriate in light of the nature of the offense and the character of the offender.”2 In fact, the sentencing may be well after the conviction because courts often order presentence investigations to assist them in crafting an appropriate sentence. The take away from this blog commentary is the time to file a Notice of Appeal begins at sentencing.

With civil cases, the final appealable order sometimes may be hard to determine, particularly if there are multiple legal issues and the trial court does not decide them all at the same time in the same order. Normally, this is not a final appealable order because the right to appeal occurs when an order “disposes of all claims as to all parties.” Does the order dispose of all issues as to all parties? If not, an appeal may not be ripe—it’s premature.

Also, certain civil cases routinely issue what appear to be final orders, such as CHINS cases. For instance, with a CHINS filing there is an initial hearing and ultimately what is akin to a trial, which is a fact-finding. However, the determination from the fact-finding is not normally the final order. Instead, it is the disposition where the court determines the next steps in the child’s placement, care, treatment or rehabilitation and the nature and extent of the parent’s, custodian’s, or guardian’s role in fulfilling those steps.3 This is like a sentencing in a criminal case, but there have been conflicting cases with the Appellate rules on when this right begins. A premature or untimely appeal forfeits the right to appeal. For this reason, a person seeking a civil appeal must exercise great care in determining when to timely file the Notice of Appeal.

This may leave you asking the question, “What happens if I miss the appellate deadline?” The answer is—it depends. It is important to know that “blowing” a deadline does not deprive the Indiana Appellate Courts of jurisdiction, but rather, forfeits the party’s right to appeal. The Appellate Courts still have jurisdiction to entertain a premature or belated appeal.

With criminal cases, there is a mechanism to request a trial court to approve a belated appeal. The reason is that a criminal felony conviction strips a party of core civil liberties and may result in the deprivation of freedom through incarceration. In addition to belated appeals, there may be other ways to challenge a criminal conviction at a later time.

Civil cases are a different story; generally, missing the appellate deadline forfeits the case. The Indiana Appellate Courts may deviate from their rules in civil cases as well4 and take jurisdiction of such a civil, but rarely do so to take a premature or late filing for an appeal. This sometimes occurs when fundamental rights are at issue, such as a parent’s right to raise his or her child.5 Thus, it is critical to properly determine a final order and timely file a Notice of Appeal. There is little to no relief otherwise in the civil realm.

Ciyou & Dixon, P.C. advocates handle civil and criminal appeals from all Indiana trial courts. We hope this blog helps you understand your appellate rights. This blog is written for general informational purposes. It is not intended as legal advice, nor is it a solicitation for services. It is an advertisement.

Indiana Rule of Appellate Procedure 14. Indiana Rule of Appellate Procedure 7. Matter of D.J. and G.J., 68 N.E.3d 574 (Ind.2017). Indiana Rule of Appellate Procedure 1. Adoption of O.R., 16 N.E.3d 965 (Ind.2014).
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