Archive for September, 2009
September 30th, 2009 | Posted by Leah | Posted in Adoption
Bill & Christine are an amazing, professional couple who are successful, adventurous and very much in love. They have a beautiful home and loving, supportive family just waiting to welcome a child. Please read more about them in their profile. If you’re interested in learning more about them, please contact our office at 317-569-0770 or via email: .(JavaScript must be enabled to view this email address)
Bill__Christine-Parent_Profile.pdf
September 30th, 2009 | Posted by Leah | Posted in Adoption
The Indiana Supreme Court won’t reconsider its reversal of an adoption order granted to a New Jersey man of twin girls born by a surrogate in Indiana. In April, the high court ruled New Jersey resident S.M. failed to comply with the Interstate Compact on the Placement of Children In the matter of adoption of infants H., Marion County Division of Children’s Services v. S.M., No. 29S02-0904-CV-140.
The justices remanded with direction to comply with the compact and thereafter issue a further judgment accordingly. The order granting S.M. preliminary custody remained in effect pending compliance and any other orders the trial court may enter. The case centered around S.M. who had filed a petition in Hamilton County to adopt twin girls born in Indianapolis to a South Carolina woman. Initially, S.M. had indicated he had provided the sperm to fertilize the eggs, but it was later determined that the woman had used donor eggs and sperm. Further, it was discovered that S.M. wasn’t an Indiana resident. The Department of Child Services became involved following the birth of the children when S.M. appeared at the hospital and exhibited odd behavior. When nurses noted his clothing was covered by bird feces, it was discovered that S.M. had brought a live pet bird into the maternity ward. Despite the multiple issues involved, the concerns about S.M. raised by DCS and the apparent discrepancies in his pleadings, the trial court eventually entered a final decree of adoption and dismissed the CHINS case, indicating that consent by DCS to the adoption wasn’t required (see our blog dated 4-9-09 for additional information about this unusual case).
In the order denying rehearing released last Tuesday, the justices noted that S.M.‘s petition for rehearing asks for directives on multiple motions, requests, and objections recently filed in the trial courts by both parties. His request seems to have been prompted partly by the Supreme Court’s ruling but also because New Jersey’s child protection authorities have initiated a CHINS proceeding and removed the children from S.M.‘s care. Justices Shepard, Dickson, Sullivan and Boehn concurred with the reasoning of the order to deny rehearing as indicated in their decision:
“While pendency of an appeal generally moves jurisdiction over a case from the trial court to the appellate court until a decision on appeal is certified, Petitioner’s supplemental appendix reflecting the trial court’s recent activity demonstrates that the court amply appreciates that its authority during such a period runs only to emergency matters” It is obvious the Supreme Court feels there is no compelling reason to rehear the case and would not alter its prior findings.
September 24th, 2009 | Posted by Leah | Posted in Family Law
Three judges for the Indiana Court of Appeals agreed that the trial court should revisit its order granting custody of a child to her abusive father, but they disagreed as to how the lower court should deal with the case. In Anita (Handy) Oberlander v. Kevin Handy, No. 08A04-0903-CV-121, the parties’ violent and tumultuous relationship ended after a short term marriage of a few months. Oberlander had filed for divorce and sought an order of protection due to Handy’s violent behavior. Handy repeatedly violated the protective order, contacting and following Oberlander. Handy’s behavior continued to escalate and in April of 2007, Oberlander found him hiding in her home and he subsequently assaulted her with her own stun gun. When police arrived, Handy fled and led them on a high speed chase before crashing his vehicle and being airlifted to a hospital. He was subsequently convicted of felony counts of domestic battery. Following his discharge from the hospital and a suicide attempt, Handy began taking medication which seemed to help control his anger. He also began actively engaging in anger management classes and counseling. Oberlander participated in the counseling and Handy’s behavior improved so much so that the protective order was modified in July 2007 to allow Handy to resume restricted visitation. While the couples’ divorce proceedings were still pending in August 2007, Handy’s visitation with a daughter he had from a prior marriage was halted as a result of the violent incidents and criminal convictions.
By September 2007, Handy moved back into the marital home despite Oberlander’s objections. When Oberlander called the police to have him removed, the police claimed the modified protective order was too vague and they refused to force Handy to leave the residence. In February, 2008, Oberlander was contacted by her youngest son who was home with Handy. When she came home, she found her son locked out of the home and Handy became verbally and physically abusive. He destroyed several items of personal property and threw the couple’s daughter out of the computer chair, causing the child’s head to hit the coffee table. Police were called and remained while Oberlander packed her and the children’s belongings so she could leave the residence. Oberlander abruptly moved to South Carolina to reside with her father, claiming she feared Handy would hunt her down.
Leading up to the final divorce hearing, Oberlander’s prior attorney withdrew and she had been unable to find another attorney through legal aid. She failed to attend the final hearing in Indiana because she could not afford the travel expenses and contended she feared for her and her children’s safety. The trial court held the final hearing in her absence and concluded that Oberlander had abandoned Handy and hindered visitation, even going so far as to call her conduct “unconscionable.” The Carroll Circuit Court sided with Handy and granted him full custody of their daughter, despite his history of violence.
Oberlander filed a request for relief from judgment alleging fraud. A subsequent investigation by the Department of Child Services, which was ordered by the trial court, recommended Oberlander have custody of the daughter and Handy have supervised visitation for the time being. Despite that recommendation, the Carroll Circuit Court judge denied Oberlander’s request, finding she didn’t prove fraud. Oberlander appealed. In their decision, the Court of Appeals upheld the trial court’s decision to not grant relief pursuant to Indiana Trial Rule 59 or 60. Chief Judge John Baker and Judge Ezra Friedlander wrote that Oberlander’s failure to appear precludes her from seeking relief from judgment and precludes her from making a valid argument the trial court actually committed an “error” that must be rectified. Judge Patricia Riley dissented with the other judges, writing that she would grant Oberlander’s motion to correct error and remand for a new hearing based on Walker v. Kelley, 819 N.E.2d 832, 837 (Ind. Ct. App. 2004). Judge Riley also wrote in a footnote she is troubled by the trial judge’s judgment in her award of custody to Handy because she was the same judge who stopped Handy’s visitation with his other daughter from the prior marriage. (emphasis added).
Despite upholding the trial court’s decision not to grant relief due to “error,” the Indiana Court of Appeals believed the Carroll Circuit Court had the option to treat Oberlander’s motion as a motion to modify the custody arrangement it had ordered in the final hearing. The ICA remanded the matter for the trial court to revisit the case and weigh all the evidence to determine whether a modification of the current custody arrangement is warranted. In the written opinion authored by Chief Judge Baker, the Court of Appeals stated, “We urge the trial court to look to the factors set forth in Indiana Code section 31-17-2-8 and apply those factors explicitly in its final custody order.” (emphasis added).
It is obvious that although the Court of Appeals did not reverse the Carroll Circuit Court’s order regarding the relief of judgment, the ICA found the custody order issued by the lower court quite troubling as evidenced by their remand of the case to have the custody issues revisited and the strongly worded dissent and footnote issued by Judge Riley. To read the full case, please select the link:
Oberlander_v._Handy-ICA_.pdf
September 16th, 2009 | Posted by Leah | Posted in Family Law
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.
Previously, the statute only required filing of a relocation notice when a move was greater than 100 miles or out of state. Now, notice applies to every move and must be filed 90 days before the proposed relocation. The non-relocating parent then has 60 days to object to the move or request modifications in custody or parenting time from the court relevant to the relocation. The court considers numerous factors in determining whether any such modification should be granted, including the distance involved, and whether the relocating parent is making the move in good faith and has a legitimate reason for the move. The priority of the court is to confirm that the move is in the best interests of the children. If distance is a factor, other matters must be addressed, including how the move will affect parenting time and impact the non-relocating parent’s relationship with the children. This can be a volatile subject for many parents, and the financial and emotional stresses can exacerbate the situation. However, communication and cooperation can minimize the conflict and parents may be able to negotiate an agreement and alleviate many relocation hurdles and concerns. Consulting with an experienced family law attorney can help either the relocating or non-relocating parent understand how the statute applies to their particular situation and develop a plan of action to address their concerns.
The above is for informational purposes only should not be considered legal advice. Each case is unique and you should consult an attorney for advice regarding your particular situation.
September 15th, 2009 | Posted by Leah | Posted in Family Law
The Indiana Supreme Court’s decision regarding the amended guidelines included dissent by two justices who are concerned that the amendments would alter precedent established in Grant v. Hager, 868 N.E. 2nd 801.
Justices Frank Sullivan and Robert Rucker believed the amendments, set to take effect January 1, 2010, will create a rebuttable presumption in cases where a custodial parent must make child support payments to the noncustodial parent equal to the negative amount of the calculation amount on the Child Support Obligation Worksheet when the Parenting Time Credit is applied. This would be in opposition to the Court’s prior findings in Grant. In their dissent, Justices Sullivan and Rucker wrote “We believe that the Guidelines’ presumption in such circumstances should continue to be that neither parent owes the other support.” They did note that the trial court has the authority to deviate from the Guidelines and order neither parent to pay the other based on respective incomes and parenting time arrangements provided that the court enters its justification for the deviation in writing as mandated by Child Support Rule 3.
The Supreme Court’s ruling did caution about utilizing potential incomes to create unrealistic child support obligations leading to excessive arrearage. The Court focused on the research that reasonable child support levels, especially for low-income parents, “may improve non-custodial parent-child contact, and in turn, the outcomes for their children.”
Other amendments create separate guidelines for Health Care and Medical Support as well as Extraordinary Expenses and expands on the definition for both. The revisions also include a low-income adjustment to set the child support amount to $12.00 for one child in cases where the combined weekly income is $100.00 The current Guideline amount is $25.00 per week. Other changes to income calculations now allow for a formula for combined weekly incomes between $4,000-$10,000 and a new formula for those above $10,000.
Another significant change is recognizing Social Security Disability benefits paid for a child as income of the disabled parent who earned the benefits, requiring that amount to be included in the Weekly Gross Income of that parent. Excess SSD benefits will be applied as payments to any existing arrearage, and if no arrearage or it has been satisfied, the excess amount is considered gratuity. This revision supersedes the current case law regarding application of SSD benefits.
With these pending changes, it is certain that strategy will be even more crucial for divorce and paternity cases and those involving child support modifications as family law attorneys help clients determine when and if it is most advantageous to proceed with a child support modification.
September 14th, 2009 | Posted by Leah | Posted in Civic, Professional
September 14th, 2009 | Posted by Leah | Posted in Adoption, Business Litigation, Family Law
FOR IMMEDIATE RELEASE:
Press Contact:
Amber Burton Small
JOCHAM HARDEN DIMICK JACKSON, PC
11450 N. Meridian
Carmel, IN 46032
Phone: 317.569.0770
Email Address: .(JavaScript must be enabled to view this email address)
Web site address: http://www.jhdj-law.com
CARMEL, IN – September 14, 2009 –As part of its ongoing commitment to community causes and charitable activities, JOCHAM HARDEN DIMICK JACKSON, PC (“JHDJ Law”), is sponsoring two different golf tournaments on September 14, 2009. Founding attorneys Stephenie Jocham and Jill Dimick will be participating in the first event, coordinated by the Indiana State Bar Association, benefiting Riley Children’s Hospital. The ISBA Golf Classic is a sold out event which has already raised more than $30,000 and comes on the heels of the popular 2009 U.S. Senior Open held at the Crooked Stick Golf Course this summer. Attorney Michele Jackson and Development Director Amber Burton Small will be attending another tournament at Eagle Creek Golf Club to benefit Adoptions of Indiana, a non-profit adoption agency located in Carmel. This is the second annual event hoping to match the success of the inaugural 2008 tournament which raised more than $20,000 for adoption programs. JHDJ Law is proud to participate as hole sponsors for both worthwhile charities.
JHDJ Law’s Adoption Practice Group offers domestic and international adoption services including private infant adoptions, step-parent adoptions, second parent (same sex) adoptions, and various international family law services, including contract reviews and orphan visa appeals. The firm provides representation to birth or adoptive parents, and provides resources and adoption education.
JOCHAM HARDEN DIMICK JACKSON, PC, is a Carmel law firm providing personalized service with a responsive and compassionate approach. Experienced attorneys offer assertive advocacy for clients complemented by a philosophy focused on minimizing conflict and negotiating resolution. The practice assists clients in all areas of divorce and family law, collaborative law, mediation and arbitration as well as business litigation and adoption. For more information, please contact Jocham Harden Dimick Jackson, PC at 317.569.0770, or visit http://www.jhdj-law.com.
Tags: Amber Burton Small, Michele Jackson, Stephenie Jocham
September 9th, 2009 | Posted by Leah | Posted in General Law
September 3rd, 2009 | Posted by Leah | Posted in Family Law
The Indiana Supreme Court affirmed a decision by Hamilton Superior Court to relinquish its jurisdiction over child support matters to a California trial court. In its opinion, the high court addressed differences between the Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) and the Uniform Interstate Family Support Act (“UIFSA”).
In Mahmoud M. Basileh v. Arwa G. Alghusain, No. 29S02-0810-CV-584, father Mahmoud Basileh appealed the trial court’s transfer of visitation, custody, and child support matters to Superior Court of Monterey County, California. The mother, Arwa Alghusain, had relocated with the parties’ children shortly after the couple divorced in 2002, with father’s knowledge and consent, as it the parenting time scheduled was adjusted for the relocation. Basileh himself also subsequently relocated, having moved overseas to take care of his mother and no longer lived in Hamilton County, Indiana. Despite prior cooperation between the parties, communication apparently broke down and Alghusain filed a petition for modification and requested jurisdiction be transferred to California. In February 2005, Alghusain registered the parties’ Indiana decree and the agreements concerning child custody, parenting time, and child support with the Monterey County, California trial court. She also filed with the California court an “Application for Order and Support Declaration.” The California trial court entered a temporary order pertaining to visitation and custody, but not child support. In the meantime Basileh filed with the Hamilton Superior Court objecting to Alghusain’s petition to transfer jurisdiction to California. However, on May 6, 2005, the Indiana court granted Alghusain’s motion and relinquished jurisdiction over “all matters” to the Monterey County, California court. Apparently there was some confusion as the California court accepted jurisdiction over child custody and visitation matters, but indicated that child support matters had not been transferred from Indiana. In August 2007, the Monterey County court sent a “Memorandum” to Hamilton County inquiring ‘“whether Hamilton County [Indiana] will cede jurisdiction to Monterey County [California].”’ Id. The judge of the Hamilton Superior Court issued an order ceding jurisdiction ‘“in all matters pertaining to visitation, custody, and child support matters”’ noting that this is what he intended to do in the 2005 order.
Basileh appealed the transfer of jurisdiction and the Court of Appeals affirmed the judgment of the Hamilton Superior Court in 2008. The Court of Appeals specifically reviewed Indiana’s version of the Uniform Interstate Family Support Act and the federal Full Faith and Credit for Child Support Orders Act. In its decision, the ICA found that “Father was not a resident of Indiana within the meaning of the Federal Act,” and the Federal Act preempts the Uniform Act because of a conflict between the two statutes. The Indiana Supreme Court granted transfer to address the Court of Appeals’ determination regarding preemption. In its decision, the Supreme Court summarily affirmed the Court of Appeals’ determination concerning residency, but clarified an apparent discrepancy between the Court of Appeals’ decision and legislative intent in federal act.
In reaching a decision, the justices of the Indiana Supreme Court reviewed the history behind the acts and Indiana’s adoption of its version of UIFSA. Justice Robert Rucker wrote that the court concluded that “Congress didn’t intend for the FFCCSOA to preempt the UIFSA and that it appeared the FFCCSOA was intended to follow the contours of UIFSA.” Additionally, the court found that Indiana’s version of the UIFSA is closely modeled after the federal version of the UIFSA.
In its decision, the Court of Appeals had interpreted Indiana’s statute, asserting that for Indiana to relinquish jurisdiction, both the nonresidency requirement and the written consent requirement under UIFSA must be met. However, the Supreme Court found the statute to be ambiguous and looked to legislative intent. The Supreme Court noted that the UIFSA contains a consent requirement from both parties that the FFCCSOA does not. The justices found the language in the federal act to be a strong indicator of the legislative intent when it enacted the Indiana statute in that the nonresidency requirement and the consent requirement of the statute are separate and alternative methods by which an Indiana court may maintain “its continuing, exclusive jurisdiction over a child support order.” (emphasis added). The court found that it isn’t necessary for both requirements to be met (nonresidency and consent) before a court loses jurisdiction. Justice Rucker clarified in the opinion, “…that the parties did not file a written consent with the Indiana court for the California court to modify the Indiana support order. Rather, the Indiana court lost its jurisdiction because Father, like Mother and the children, is no longer an Indiana resident.”
September 2nd, 2009 | Posted by Leah | Posted in Adoption
FOR IMMEDIATE RELEASE:
Press Contact:
Amber Burton Small
JOCHAM HARDEN DIMICK JACKSON, PC
11450 N. Meridian
Carmel, IN 46032
Phone: 317.569.0770
Email Address: .(JavaScript must be enabled to view this email address)
Web site address: http://www.jhdj-law.com
CARMEL ATTORNEY TRAVELING TO AFRICA TO DEVELOP INTERNATIONAL ADOPTION PROGRAM
CARMEL, IN – September 2, 2009 – Michele L. Jackson, who chairs the Adoption Practice Group of Carmel law firm JOCHAM HARDEN DIMICK JACKSON, PC, will be traveling to the Democratic Republic of Congo (formerly Zaire, commonly referred to as the “DRC”) in Africa from September 25 – October 2, 2009. Along with members of the staff of MLJ Adoptions, she will be visiting with central authorities as part of her ongoing plan to develop an international adoption program beginning January 2010. Research on the new program began in January of 2009 and Ms. Jackson recently met with a Congolese attorney based in Chicago, who divides her residency between the Midwest and the DRC. The attorney will be working with Ms. Jackson and MLJ Adoptions to provide the necessary in-country representation and resources. Whenever starting a new international program, it is imperative to travel to the country to forge relationships and identify reputable agencies, authorities and contacts. It also gives Ms. Jackson an opportunity to visit orphanages and see conditions and resources first hand. While in Africa, she will also be delivering relief supplies to area orphanages as part of her nonprofit charity, The Fatherless Foundation.
JHDJ Law’s Adoption Practice Group offers domestic and international adoption services including private infant adoptions, step-parent adoptions, second parent (same sex) adoptions, and various international family law services, including contract reviews and orphan visa appeals. Ms. Jackson represents both birth and adoptive parents, and provides resources and adoption education.
JOCHAM HARDEN DIMICK JACKSON, PC, is a Carmel law firm providing personalized service with a responsive and compassionate approach. Experienced attorneys offer assertive advocacy for clients complemented by a philosophy focused on minimizing conflict and negotiating resolution. The practice assists clients in all areas of family law, mediation, business litigation and adoption. For more information, please contact Jocham Harden Dimick Jackson, PC at 317.569.0770, or visit http://www.jhdj-law.com.