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Court orders hearing on child’s best interests

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The Indiana Court of Appeals has reversed an order giving a father physical custody of his child. The child’s maternal grandparents had assumed guardianship of the child following the death of the child’s mother.

Mother had custody of L.T., and father C.T. was granted parenting time and ordered to pay child support when mother died in October 2012. Her parents filed a petition in Hamilton Superior Court seeking guardianship of the child. Father purportedly consented and they were appointed co-guardians.

C.T.’s parents filed a petition in Marion Circuit Court to transfer the case to Marion County paternity court; the Hamilton County court transferred the case. It was consolidated with the maternal grandparents’ petition to adopt filed in probate court in Marion County. The Marion County court determined that Hamilton County did not have subject matter jurisdiction over the guardianship proceedings and terminated the grandparents’ guardianship. The court ordered the child immediately returned to C.T.

The Court of Appeals noted in In Re the Adoption of L.T.: J.M. and S.M. v. C.T., 49A05-1310-AD-493, that father confuses subject matter jurisdiction and venue. Had the subject of the child’s custody been first properly brought before the Marion County juvenile court for litigation, the Hamilton County probate court would have been precluded from making a custody determination regarding the same child, even if the child was a Hamilton County resident, Judge L. Mark Bailey wrote.

But the filing of a case in a county in which venue does not properly reside does not divest the trial court of subject matter jurisdiction.

The Hamilton County Superior Court, Probate Division did not lack subject matter jurisdiction to conduct guardianship proceedings. When the court was informed of its lack of proper venue and the Marion County paternity proceedings, the matter was transferred. Upon consolidation in the Marion County Superior Court, Probate Division, it was then incumbent upon the probate court to complete the proceeding. The probate court erred in granting relief from the guardianship order on grounds that the order was void for lack of subject matter jurisdiction.

Father argued that upon the child’s mother’s death, the child should have immediately been returned to him as the surviving parent since paternity had already been established.

“Ultimately, however, we need not decide whether, upon death of one parent, the surviving parent is entitled to automatic extinguishment of an existing guardianship. Those are not the circumstances of this case,” Bailey wrote. “Here, Father relinquished a right to custody of Child immediately upon Mother’s death. For reasons no yet developed in a best interests hearing, Father signed – subsequent to Mother’s death – a consent to guardianship of Child. As no hearing has been conducted, the record on appeal is devoid of any evidence of changed circumstances.”

The judges ordered a hearing on the best interests of the child.
 

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  • truth b told
    Also I filed forgery charges in Hamilton county and also in Marion county and nobody seems to care because the officer said it will sit in a drawer and collect dust before it gets to a prosecutor because my child belonging to me from being stole from me isn't important as "real"forgery...sad world but luckily I have great parent...I couldn't imagine anyone going thru this knowing u are a great parent and won multiple times in court..never lost in 5 courts. ..sad but u only get so many doors and they are running out...
  • truth b told
    I'm the guy going through this and the point that is being missed is I never consented or waived anything and they forged my signature as well as the notary so this is the reason why justice hasn't been served and its gonna take a best interest hearing which we already done in a brief but I never got to show all the forged evidence so I will let u know in October 272829..smh 2 yrs because they depend on people to run out of money first sad world but my daughter comes first. .
    • Screwed
      This is what happened to me. My Ex-wife was killed in a Car wreck which was driven by her brother. In the vehicle was my daughter and my ex wife's parents. Tragically the Grandparents and my ex were killed in a Roll Over. The Uncle and my daughter survived. I went to Court 2 weeks after being informed as to what occurred. We went thru the motions etc...then the Best interest of the Child was brought into play.Because her uncle(who was convicted numerous times of drunk driving) had visited and or had a direct contact in that community(I live in Indy) with my daughter the Court awarded him! custody,I will say nothing about the brainwashing and foot dragging by the Courts,the courts callous and indifferent behaviour and attitude was of the highest caliber of disgusting.I pity this man,suffice it to say,I have zero contact with my daughter.I wish him luck.

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      1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

      2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

      3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

      4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

      5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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