COA offers suggestion about judicial notice rule

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A paternity and child custody case has given the Indiana Court of Appeals a chance to examine a newly amended evidence rule for the first time, while simultaneously offering guidance to trial judges about using publicly accessible information to dispose of cases.

The state’s intermediate appellate court issued a ruling today in Paternity of P.R. and A.R.; H.B. v. J.R., No. 36A01-1005-JP-255, which for the first time gave a three-judge panel an opportunity to rule on a 2010 amendment to Indiana Evidence Rule 201 allowing courts to take judicial notice of any records from a court within this state.

This case out of Jackson Superior Court involves a mother and father who dated for four years but never married, and had two children in July 2004 and September 2005. Paternity was established in 2007 and the mother received sole custody, while the father was ordered to pay $150 per week in child support. In late 2009, the father asked to modify custody and support, based on the 27-year-old mother living with a man who had a past felony conviction for battery on a minor less than 14 years old, a conviction for supplying alcohol to a minor, and was reportedly being investigated by child protective services for alleged child abuse.

After a custody modification hearing, the trial court not only took that testimony into consideration but also a protective order that the mother had obtained against another man she had recently dated, relating to a felony battery conviction. The mother didn’t request a hearing or file any objection on that issue as allowed by Rule 201(e).

The trial court awarded custody to the father and allowed the mother parenting time, and also ordered that the father should receive a $60 per week credit to his child support arrearage for about 15 months.

On appeal, the mother argued that the trial court erred in considering the substance of the protective order she’d previously obtained because that document wasn’t admitted into evidence in this ongoing paternity and custody case.

The Court of Appeals noted that Evidence Rule 201 was amended in late 2009 and went into effect Jan. 1, 2010, meaning this is the first chance an appellate court has had to consider a case where it applies. Before the revision, a court could not take judicial notice of its own records in another case previously before it, even on a related subject with related parties. The revision states that the judicial notice can happen at any stage of the proceedings, and that a party doesn’t have to be notified before a court takes judicial notice.

The trial court properly took judicial notice of the protective order filed, the appellate judges found, and it doesn’t matter that the notice happened after the hearing was concluded.

“Although Mother was not afforded an opportunity to be heard before the court took judicial notice, Rule 201(e) provides that Mother could have made a timely request after judicial notice was taken,” Judge Nancy Vaidik wrote. “She, however, did not do this.”

Though the appellate panel concluded the trial judge correctly took judicial notice here, the appellate judges pointed out that a better course of action in this case would have been for the court to have given the parties notice and an opportunity to be heard before taking judicial notice and issuing an order.

“Undoubtedly, our information technology explosion has allowed our courts, as never before, to access reliable information that may aid in the just disposition of cases,” Judge Vaidik wrote. “Our Supreme Court, recognizing this, has encouraged courts to communicate with one another by establishing family courts and creating JTAC (Judicial Technology and Automation Committee), while liberalizing the judicial notice rule. But the danger of having a broad spectrum of information at the disposal of courts is that mistakes in input, inscription, and transmission can occur. To alleviate the danger of such errors, litigants must be given the opportunity to explain or respond to judicially-noticed information. We understand that the Indiana Rules of Evidence allow litigants to respond to this information at any stage of the proceeding, but we believe that, where practicable, the best practice is for courts to notify the parties before taking notice of and issuing a ruling which utilizes this information.”

Aside from that judicial notice issue, the appellate court also examined the custody modification and how the lower judge had issued findings on why changes were warranted under state statute and precedent. The panel affirmed the trial court’s ruling unanimously.


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.