With the age of the internet, most legal consumers have some working knowledge of the issues surrounding their case in a trial court or on appeal. While appeals are much rarer than trial court proceedings, there is still good general information available online about appeals. A little research shows that most appeals involve issues of fact or law. With pure questions of fact, the appellant’s position (on appeal) is the trial court did not properly weight the facts or excluded key facts. Questions of law, which make for stronger appeals, argue on appeal the trial court misapplied the law. However, in ...
Tag: trial court judges
January 2, 2018CD
In civil litigation, the trial and any appeals are one-and-done. This means that except for extraordinary circumstances, such as later trying to re-open the case,1 a civil case later brought on the same issues or matter cannot be re-litigated under legal doctrines known as res judicata and/or collateral estoppel.2 This blog post addresses child custody and related matters, such as support, that can always be re-litigated and why an appeal of an unfavorable judgment may be still vital. As noted, custody and child support can be modified at any time upon showing certain facts and meeting a higher modification standard. A ...
June 22, 2017CD
The economic impact of divorce is clear: it costs more to operate two households than one. For this reason, spouses’ standards of living may well decline post-divorce. That said, aside from the relative percentages of gross weekly income for child support, which may differ significantly, there is the issue of uninsured medical expenses and extra-curricular activities. Like most families, these are beyond the regular family budget and hard to manage and pay in an intact family. Therefore, this often becomes a battle ground for divorced parents. The rules are complex, however, when looked at and analyzed closely, the rules are clear. For ...
December 1, 2016Adam Hayes
Children are literally our future. When parties divorce or in paternity actions or subsequent custody modifications, most litigants (Mothers and Fathers) make three key mistakes multiple times. Sometimes this impacts their custody objective and causes negative outcomes when they are avoidable. This blog explores these three key mistakes and how to avoid them. The first is testifying in terms of “absolutes” or without qualification. Everyone has done something they are not proud of or that is illegal or both. In the acidic nature of divorce proceedings, most litigants get asked questions about these events even if they play little or ...
November 17, 2016Adam Hayes
In 2006, the Legislature passed a “relocation statute” to provide guidance to the courts on how the courts should address a parent who wants to relocate, especially since this type of action typically involves creating some distance between at least one of the parents and the minor child/children. The statute mandates that the relocating parent provide advance notice of the intended relocation and that the relocating parent has the burden of proof to demonstrate "good faith and a legitimate reason". A recent case by the Indiana Court of Appeals further clarifies how this balance is to be weighed by trial courts. ...
August 23, 2016Adam Hayes
As a general rule, every litigant from an Indiana trial court has the right to appeal a decision to the Indiana Court of Appeals (in a few exceptions, the appeal may proceed directly to the Indiana Supreme Court). This Court decides its cases in a timely fashion and handles thousands of appeals each year, along with related matters. Some cases are stronger for appeal than are others and this blog post explores the better cases for appeal. The weakest case is worth noting at the outset, which are disputes about facts. The Court of Appeals heavily relies on the trial court ...
May 11, 2016Adam Hayes
Making the Factual Showings in Custody Modification Almost every two people hear about a situation and come up with a different opinion. This is because second hand reporting removes the context and non-verbal communication that may be present, such as grimaces, winces, and other body language. Because of this, the Indiana Court of Appeals and Indiana Supreme Court give great deference to trial court judges in custody modification cases. In cases where there is a pure factual dispute, and no question of the application of the law (such as is this the first custody decision or a modification), it is crucial litigants ...
March 24, 2016Adam Hayes
The Divorce Act and cases that control Indiana divorce law are driven by policies that favor the parties reaching agreements. Particularly where children are involved, agreements avoid the “warfare” that sometimes ensues with contested custody cases. However, all such agreements must be in the children’s best interests. Ultimately, Indiana’s trial court judges stand in loco parentis (act as a parental figure) and review agreements to ensure all such agreements between the parties over their children are, in fact, in their best interests. In most cases, this is the case. Recent Indiana decisions have re-confirmed there are two matters parents cannot agree to. ...
March 22, 2016Adam Hayes
Because every divorce case with children is a little to a lot different from every other case, Indiana’s voters, appellate court’s and General Assembly give domestic trial court judges wide latitude (called “discretion”) to make child custody decisions. Indiana’s judges often agonize over the unfortunate situations they see, hear and must decide. To help judges, there are four key legal presumptions or assumptions trial court judges follow that are important for you to know if you are involved, or will be involved, in a child custody dispute. The first—and by far the most important presumption or legal policy: every child custody ...
January 14, 2016Adam Hayes
Indiana’s few trial court judges, magistrates, commissioners and pro tems hear and decide a staggering number of cases (tens of thousands) each year with speed and accuracy. However, approximately 4,000 are appealed to the Court of Appeals as a matter of right. In consultation with their attorneys, litigants help to decide what issues to raise on appeal. Four common mistakes with litigants in selecting issues. Every “Mistake:” The first is trying to appeal every actual or perceived mistake made a trial. No trial is “perfect.” Ultimately, if the “mistake” will not make a difference in the decision it is generally a ...
December 8, 2015Adam Hayes