Articles Posted in Custody

Baby at Doctor's Checkup.jpgDivision of medical expenses is always a big issue for our clients. Generally, the issue of coverage and insurance premiums is included in child support calculations because the party who provides insurance coverage is entitled to credit for the weekly amount paid. Therefore, the biggest remaining issue between parents is how to divide uninsured medical expenses for the children. When parties can agree, they have the ability to be flexible about how they want to divide these expenses, and there are many good reasons why parties would want to tailor the way they divide these expenses to their specific situation. In some cases, one party has supplemental coverage, a Health Savings Account, Flex Spending account, or other employer benefits that make sense to exhaust before dividing expenses between parties. Parents of children with specific medical issues may also need to specifically plan how uninsured expenses will be divided throughout the year.

When parents cannot agree or do not believe their case requires special accommodations, we advise clients of the 6% Rule, which is how the Indiana Child Support Guidelines ICSG suggest dividing uninsured medical expenses. While there is no guarantee that a judge would order parties to divide uninsured expenses pursuant to the 6% Rule, it is a generally accepted method and endorsed by the ICSG. Therefore, there is a good chance that a party’s judge is familiar with the rule and frequently implements it in his/her child support orders. Per the 6% Rule, the parent who is assigned to pay controlled expenses, usually the custodial parent and the one receiving child support, is required to pay an initial portion of ordinary uninsured health care expenses. The theory behind this is that the parent who is receiving child support can use a percentage of the support toward ordinary uninsured health care expenses. Therefore, the parent who is assigned to pay controlled expenses is expected to pay uninsured medical expenses up to 6% of the annual basic child support obligation, which can be calculated from the parties’ completed child support worksheet. Beyond that, the parties divide any additional uninsured medical expenses pursuant to their pro rata shares of the parties’ total gross income, which is also listed on the parties’ completed worksheet.

One major caution we always have for clients who follow the 6% Rule is the importance of good record-keeping. As with any other co-parenting issue, parties have to exchange information, billing statements, and receipts in order to determine if one parent has met his/her 6% threshold and how bills should be divided. Without a proper exchange of information and accurate record keeping, it can be difficult for an attorney to help resolve a payment dispute under this rule.

child dad.jpgRecently, NPR ran a story about the push to change custody laws in many states. The new measures favor equally shared custody for most parents after divorce. Supporters argue that if the parents are deemed fit and there is no domestic violence or abuse issues, joint custody should be favored in divorce cases. There are studies that indicate that children do better when they regularly see both parents. Why not mandate joint custody?

It is always true that when there is conflict between parents, there is a negative impact on the child(ren). Perhaps implementing state-mandated joint parenting plans for parents going through a divorce would reduce conflict in some divorce cases. As family law attorneys, we stand behind measures that focus on the best needs of the child. We consistently coach clients on how to keep their children’s needs first when going through a divorce. It is critical for each parent to be positive about the other parent, at least in front of the children, and encourage that child to have a relationship with the other parent. Obviously, there are exceptions in cases where abuse is involved.

The application of this theory is a little more complicated and must be designed to focus on what is best for the child(ren) NOT the parents. What if the parents don’t live near each other? What if the parents just cannot get along? What if the children have chaotic after school schedules? There are so many scenarios that it would be hard for a sweeping mandate to address every situation.

Thumbnail image for suitcases.jpgYou’ve decided to separate. Your spouse is moving out of the home. But now, he or she claims that they are taking the kids with them when they leave. Are they permitted to take the children with them when they leave?

Maybe. Unless the courts have already determined a custody agreement, one parent is not required permission to leave with the children. If you plan to pursue custody of the children, it is advised not to leave the house. Even if you take the children with you, it may impact custody decisions because the courts can decide to keep the children at the house to reduce the disruption in their lives.

The first thing you should do is contact an experienced family law attorney. Here is more information on how to find an attorney for you and questions you should ask your attorney. Your attorney should file for a temporary custody order. Temporary custody may be decided as soon as the parents are separated.

1205419_little_fisher.jpgYou may be wondering what the role of a Guardian Ad Litem is in family law cases. Frequently abbreviated “GAL”, the Guardian Ad Litem is a volunteer appointed by the court to represent the best interests of a child involved in litigation. Indiana law requires the appointment of either a guardian ad litem or a trained court appointed special advocate in abuse and neglect cases. The purpose of the GAL is NOT to directly “represent” the child, a distinction which some find confusing, especially as many GALs are attorneys. However, it is not necessary to be an attorney to be a GAL, but Indiana does required that GAL or CASA (Court Appointed Special Advocates) volunteers complete special training.

Traditionally, GAL/CASA volunteers have been appointed in abuse or neglect cases or when a child becomes subject of proceedings to terminate a parent/child relationship. However, Indiana law allows for appointments of these special volunteers in divorce or paternity cases, which is becoming more frequent, especially when custody is contested or allegations arise regarding the health and safety of the child in the family law proceeding.

The GAL will perform a number of functions in a case to help determine the best interests of a child. The volunteer may conduct home visits and interview the parent(s), stepparents, significant others, or extended family who are involved in the child’s home life. They may also interview any child care providers as well as teachers and may review medical or education records. The GAL is tasked with investigating the child’s situation and ultimately filing a report with the court regarding the GAL’s recommendation about custody of the child. For more information about the role of GAL/CASA volunteers in Indiana, please visit the Kids’ Voice of Indiana link below.


Attorney Lanae Harden discusses best practices in Indiana in regards handling child custody and parenting time for the holidays.

The Indiana Parenting Time Guidelines specifically set out the holiday schedule for divorced parents. However, most court orders provide that the holiday schedule shall be as agreed upon by the parties, and in the event of disagreement, the Guidelines control. For example, the custodial parent receives Thanksgiving on odd years with the non-custodial parent receiving Thanksgiving on even years. Often, parents voluntarily agree that instead of having the child entirely one year and not the next, that each parent will have the opportunity to see the child over the Thanksgiving holiday.

It can be very difficult for kids the first major holiday after a divorce. Parents should do their best to split up the holidays in a manner which will be as least disruptive as possible for the child. Unfortunately, sometimes this is not possible because both extended families may celebrate the particular holiday at the same time. Hopefully, grandparents will understand that they, too, need to be flexible so that arrangements can be made for the child to enjoy celebrations with each side of the family.

The recent media coverage regarding the divorce of Tom Cruise and Katie Holmes has brought to light custody issues that many parents may not be aware of: Spiritual Custody.  Spiritual custody comes into play when divorcing parents cannot come to an agreement about the religious upbringing of their children.  Typically, these disputes come from interfaith marriages that have ended up as interfaith divorces.

This creates a difficult situation for the courts and legal professionals, not to mention the children that are caught in the middle of such disputes.  In our system of government it is required to separate church and state. The courts cannot determine the one true path to God or even godlessness.  The courts are then left with determining what is “in the best interest of the children”.

Carmel divorce attorney, Clarissa Finnell, explains more about case law in Indiana concerning spiritual custody.  “Typically, a judge will look at the parent’s spiritual/religious practices in regards to their children prior to the divorce and keep the agreement similar to their previous arrangements.”  For example, if one parent was Catholic and the other Jewish, and the children had been attending a synagogue while the parents were married, a judge would usually rule for the children to continue that practice.  Finnell goes on to say, “Most interfaith parents have already decided how they are going to raise their children, in regards to theology, such as which holidays they will celebrate and where they will worship.  A judge wouldn’t rule to change those practices just because the couple is divorcing.”

Are you aware of the upcoming changes in Indiana child support statutes that may affect child support payments and your child’s eligibility for educational support?  Effective July 1, 2012, Indiana Parenting Guidelines (Public Law 111-2012) will change a child’s presumptive age for termination of child support from twenty-one to nineteen.  The law also amends the time frame in which a child may seek educational support, affecting children in the 18-21 age range who may need educational support or may soon lose their eligibility for support.  Parents with previous support orders may want to revisit the issue if the order does not explicitly refer to “educational support.”

All parents should consider seeking legal advice prior to terminating their support obligations when their child turns nineteen.  Although many parents’ duties to pay child support will end when their child turns nineteen, a parent who fails to pay support that is owed risks a finding of contempt and possible criminal sanctions.  Also, if you have additional children subject to a child support order, you will likely need to modify your child support obligation upon the emancipation of your nineteen year old.

Our firm is committed to providing clients with personalized service and updating parents on changes in Indiana law that may affect their interests and their children.  We encourage parents who believe that their child may be affected to contact counsel and assess whether action is necessary before Public Law 111-2012 becomes effective July 1, 2012.

As the school year comes to an end, parents are scheduling camps, vacations and other activities for their children.  Of course, this also means that the summer visitation requirements must be addressed for divorced families.  Family law attorney, Lanae Harden, gives tips on how to ensure a smooth summer for both the parents and children involved.

  1. If you don’t have a detailed parenting visitation schedule, create one.  This may be difficult for former spouses to come to an agreement.  If you are unable to come up with a mutually agreeable schedule, consult a professional to aid with this.  The more detailed your agreement is, the less room for interpretation, therefore less conflict.
  2. Recognize the emotional impact this may have on the children.   A significant change in schedule can bring up emotions for the children.  This could be positive or negative emotions, but usually a mixture of both.  Children thrive on routine, and summer visitation schedules usually vary significantly from the routines that the children became accustomed to during the school year.  Depending on the ages of the children, explain to them the exact schedule and where they will be at any given time.  Create a calendar with color coded days signifying when they will be at mom’s house and when they will be at dad’s house.

Attorney Lanae Harden, who chairs Harden Jackson’s Family Law Practice Group, advises those parents who are considering relocating and how to ensure you are abiding by the state statute.

Job losses and the housing market decline during this economic recession have forced many people to relocate in order to downsize their residences or to pursue new job opportunities. A move may also occur following a divorce, especially if one of the former spouses had temporary living arrangements while the sale of the marital home was pending, or subsequently as the result of remarriage.

Divorce and relocation are two of the most stressful changes in an adult’s life. Numerous details and tasks must be managed and completed. When children are involved, the focus is usually whether the change will affect their friends or which school they attend. What many parents do not realize is that their move may violate a state statute. Pursuant to Indiana law, a relocating individual must file detailed written notice of their intent to move with the clerk of the court that issued a custody or parenting time order. The notice is required well in advance of a move, and applies regardless of whether the move is across the street, across town or to a different state. Many parents have been caught by surprise by the relatively new relocation statute (particularly those who divorced prior to its adoption), and have found themselves unwittingly in violation of such.