FAQ: Family Law

Can my ex-spouse move out-of-state with our child(ren)?

We are a mobile society, and people move for a variety of reasons. When such a move requires the relocation of a child by a parent with primary physical custody, the ramifications to the child and to the other parent can be enormous. That is particularly true if the non-custodial parent has a strong, well-established relationship with the child(ren).

Several years ago, the Indiana legislature addressed the relocation dilemma by creating a specific procedure that must be followed if either parent moves from their residence. The substantive portions of that procedure can be found at I.C. §31-17-2.2.

The purpose of this new relocation procedure is to provide specific requirements for a parent who wants to relocate with a child(ren), and the corresponding rights and responsibilities of the non-custodial parent in that situation. The statute provides a detailed timeline that includes notice requirements for the custodial parent, and a written response deadline if the other parent objects to the relocation. While the notice requirements apply to all relocating parents, it is of special interest to the parent that has primary physical custody. If the relocation of the child(ren) is challenged by the non-custodial parent, the Court must consider the following factors in deciding whether to permit the relocation: the distance of the proposed move; the hardship and expense that would be involved for the non-relocating parent to exercise parenting time after the move; the likelihood of preserving the relationship between the child(ren) and the non-relocating parent after the move; the relocating parent’s pattern of conduct as it concerns promoting or interfering with the other party’s parenting time; the reasons for the move; the reasons the move is opposed; and other facts affecting the best interests of the child(ren).

Relocation cases can be very difficult. That is why a parent should seek legal counsel to understand their rights and responsibilities in that situation. Failing to follow the statute can have a devastating impact on a parent and on the child(ren).

How do I establish paternity?

If you had a child and are not married, parental rights are established by filing a petition to establish paternity. Paternity can also be established at the hospital with a paternity affidavit signed by the mother and the father. This is usually signed immediately after the birth of the child.

Either parent may file a petition to establish paternity in the county where the child resides. Many courts require a DNA test be conducted to establish a reasonable degree of certainty that the father is the biological father. In a paternity proceeding you can establish temporary and final orders relating to parenting time, custody and support of the child. For more information about paternity, please contact one of our family law attorneys and schedule a consultation.

Is there such a thing as “cooperative divorce”?

Yes. Cooperative or “collaborative” divorce is a concept gaining awareness and momentum as more couples discover there is a way to minimize conflict during a divorce and survive the process without destroying each other — or others in the family. Our lawyers have been integral in introducing the concept into the Fort Wayne legal community.

What is a “collaborative divorce”?

A collaborative divorce is a process where you and your spouse, along with your attorneys, work as a team to resolve all issues concerning children and to divide property in a fair and practical way. You and your spouse make decisions regarding what is best for your family, as opposed to a judge.

All of the family law attorneys at Beckman Lawson, LLP have received special training in collaborative divorce, which is a growing alternative to the traditional divorce. More and more couples are choosing to work through their differences and craft a divorce that makes sense for their family and financial situation with the collaborative process, rather than asking a judge to choose a winner and a loser. A traditional high conflict divorce negatively impacts children and is usually very expensive and stressful.

What is the difference between a collaborative or cooperative divorce and a traditional divorce?

The primary difference is the commitment to reach an agreement before going to court. You and your spouse keep control of the decisions yourself, rather than giving it up to a judge. All of the parties consent in writing to be part of a respectful process that leads to an out-of-court resolution. With Collaborative, the goal is to develop effective relationships, solve problems jointly, and prevent a court battle. When necessary, both parties select trained mental health professionals, financial professionals, child psychologists, or accountants to act as neutral experts.

What is a legal separation?

In a legal separation, a couple is still married and the marriage will remain intact, even though the couple is physically separated and living apart. In a legal separation, courts may enter a temporary order for maintenance, child custody, parenting time, or child support. However, Indiana limits the period in which a couple may be legally separated to one year and therefore, it is important to discuss with a lawyer whether a legal separation is the best course and what to do when that year comes to an end.

What are my rights to holidays with my children?

It is always important to refer to your settlement agreement or Final Decree to see what holiday schedule was adopted. For specific language in the 2013 Indiana Parenting Time Guidelines please click here. (Please note that the attached link is the most recent Guidelines effective March 1, 2013. If you have an Order entered prior to 2013, you should consult a lawyer for an older version of the Guidelines.) If your agreement is silent or follows the current Indiana Parenting Time Guidelines applicable for Orders after March 1, 2013, then the following would apply:

The following holidays shall be exercised by the non-custodial parent in even numbered years:

Martin Luther King Day. If observed by the child’s school, from Friday at 6:00 p.m. until Monday at 7:00 p.m.;
Presidents’ Day. If observed by the child’s school, from Friday at 6:00 p.m. until Monday at 7:00 p.m.;
Memorial Day from Friday at 6:00 p.m. to Monday at 7:00 p.m.;
Labor Day from Friday at 6:00 p.m. until Monday at 7:00 p.m.; and,
Thanksgiving from 6:00 p.m. on Wednesday until Sunday at 7:00 p.m.

In odd numbered years, the non-custodial parent has parenting time:

Spring Break. From two hours after the child is released from school on the child’s last day of school before Spring Break, and ending 7:00 p.m. on the last day before school begins again.;
Easter. From Friday at 6:00 p.m. until Sunday at 7:00 p.m.;
Fourth of July. From 6:00 p.m. on July 3rd until 10:00 a.m. on July 5th;
Fall Break. From two hours after the child is released from school on the child’s last day of school before Fall Break and ending 7:00 p.m. of the last day before school begins again.;
Halloween. On Halloween evening from 6:00 p.m. until 9:00 p.m. or at such time as coincides with the scheduled time for trick or treating in the community where the non-custodial parent resides.

CHRISTMAS VACATION

Christmas break is divided in half between the parties based on the school district in which the children attend or if it’s a preschool age child in a school district in which the custodial parent resides. Absent agreement of the parties, the first half of the period will begin two hours after the child is released from school. The second half of the period will end at 6:00 p.m. on the day before school begins again.

Each party will receive one half (1/2) of the total days of the Christmas vacation, on an alternating basis as follows:

In even numbered years, the custodial parent shall have the first one half (1/2) of the Christmas vacation and non-custodial parent shall have the second one half (1/2) of the Christmas vacation.
In odd numbered years, the non-custodial parent shall have the first one half (1/2) of the Christmas vacation and custodial parent shall have the second one half (1/2) of the Christmas vacation.
In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 p.m. on Christmas Day.
No exchanges under this portion of the rule shall occur after 9:00 p.m. and before 8:00 a.m., absent agreement of the parties.
New Year’s Eve and New Year’s Day shall not be considered separate holidays under the Parenting Time Guidelines.

SPECIAL DAYS Mother gets the child on Mother’s Day from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Father gets the child on Father’s Day from Friday at 6:00 p.m. until Sunday at 6:00 p.m.

The parent’s birthday is treated like a holiday, and the child will be with the parent whose birthday is taking place from 9:00 a.m. to 9:00 p.m. In the event the child is in school during the parent’s birthday then it is from 5:00 p.m. to 8:00 p.m.

In addition, on a child’s birthday in even numbered years, the non-custodial parent shall have all of the children from 9:00 a.m. to 9:00 p.m. However, if the children are in school then it is from 5:00 p.m. to 8:00 p.m. In odd numbered years, the non-custodial parent shall have all the children the day before a child’s birthday from 9:00 a.m. to 9:00 p.m. However, if the children are in school then it is from 5:00 p.m. to 8:00 p.m.

In the event you have other religious holidays that you recognize, it may be important to add additional holidays to your parenting time schedule. Parenting time can be modified by filing a petition to modify parenting time in the court in which the original parenting time order was issued and scheduling your petition for trial. For further information, please see the Indiana Parenting Timeline Guideline, or contact one of our family law attorneys and schedule a consultation.

EXTENDED PARENTING TIME/SUMMER VACATION

Depending on the age of your child(ren) and subject to any agreement to the contrary, the Indiana Parenting Time Guidelines contemplate additional or extended parenting time for the non-custodial parent during summer vacation up to one half (1/2) of the summer. When that time can be selected and how it impacts any holidays, special days, or child activities must be carefully considered. Contact one of our family law attorneys to help you interpret the Guidelines.

What is joint legal custody?

Joint legal custody is a term used in the legal profession to describe parental authority. When parents share decision making power it’s called joint legal custody. Under a joint legal custody model, mother and father must decide together all issues pertaining to the major life decisions of the child. Specifically, this includes a child’s medical treatment, religious upbringing, and educational issues. Joint legal custody has nothing to do with the amount of time a parent spends with the child. Joint legal custody only deals with the decision making ability of the parent.

Joint legal custody is distinguished from sole legal custody. The sole legal custody model provides one parent the ability to unilaterally make the decisions relating to the education, medical and religious upbringing of the child. Joint legal custody is the ideal model if parents are able to communicate on issues relating to the child.

What is the marital pot?

The marital pot includes your assets, such as cars, houses, boats, stocks, bonds and bank accounts, and your debts, like the mortgage, the car loan, and credit card balances. All of those items are combined into one giant marital pot. The martial pot is established on the date the petition for dissolution is filed. So everything that exists on that date, the date of filing, is included in the marital pot. Indiana has a presumption that the marital pot will be split 50/50 between the spouses. There are certain factors that allow for a deviation of that 50/50 split. For further information about the marital pot and how it can be divided in the event of a divorce, please contact one of our family law attorneys and schedule a consultation.

When can I modify child support?

Indiana law allows for child support to be modified under two separate tests. The first test allows for a change in support when there’s “a substantial and continuing change in the circumstances.” A substantial and continuing change in circumstances could occur when a parent has lost their job or becomes disabled and is no longer able to work. When there has been a substantial increase or decrease in the parents’ income, then modifying support may be necessary.

Child support can also be modified if it has been one year since the last modification of support, and there is a 20% change in the support amount. For example, if a support order was issued on January 1, 2015 for $100.00 a week, support could be modified on January 1, 2016 provided there was an increase or decrease in the support of $20.00 (20%).

Either parent can file a petition to modify child support with the court in which the original support order was issued. That petition must then be scheduled for a trial. Negotiated agreements to modify support are also an option. For further information, you can contact one of our family law attorneys to discuss your specific situation.

When does child support stop under Indiana Law?

Currently, under Indiana law, child support ends when a child turns 19 years old, unless that child is incapacitated. In some cases, a child may become emancipated earlier based on certain conditions, such as:

The child is married;
The child joins the armed forces;
The child is over the age of 18, not enrolled in a post-secondary school, and has not attended a post-secondary school for the prior 4 months, and is or is capable of supporting himself/herself, or;
The child is no longer under the care or control of either parent.

Depending on the date on which your child support order was issued, a petition for education needs may be filed until the child becomes age 19 or, in limited cases, until the child turns 21. Please contact one of our family law lawyers to discuss terminating child support or securing an order for educational expenses.

Does support automatically stop at age 19?

No. If your support payments are being deducted automatically from your paycheck pursuant to an Income Withholding Order, a petition to terminate support and emancipate the child must be filed.

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