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COA reverses father's visitation of adopted daughter

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Although one Indiana Court of Appeals judge concurred that a biological father’s petition granting visitation with his daughter should be reversed, he urged legislators and the Indiana Supreme Court to reconsider the issues raised in this case to “avoid equally unjust results in future cases.”

Judges Cale Bradford, James Kirsch, and Terry Crone ruled that biological father J.D.’s visitation petition regarding his daughter A.H. should be reversed, but for different reasons.

J.D. and J.S. had daughter A.H. when they were in high school and she was born with a congenital heart defect. J.S.’s parents adopted A.H. so that she could have medical insurance and child care. J.D. consented to the adoption. The two married and had a second daughter. They filed a petition to adopt A.H. but it was never finalized.

J.S. and J.D. later divorced and J.S. remarried. During the pendency of the proceedings, J.D. was able to visit with A.H. without any issue, but visitation issues later arose after J.S. remarried. She and her husband have petitioned to adopt A.H., which is still pending. After the divorce, J.D. filed a petition to establish visitation with A.H. The trial court granted it, ruling that pursuant to Collins v. Gilbreath, 403 N.E.2d 921 (Ind. Ct. App. 1980), J.D. qualified as a third-party nonparent custodian whose court-ordered visitation with A.H. was in her best interests.

In C.H., M.H. and J.S. v. J.D., No. 29A05-1004-DR-204, Judges Bradford and Kirsch reversed on the grounds that J.D. had to use the procedures established in Indiana Code Section 31-19-16-2 to establish post-adoption visitation with A.H. They also cited In re Visitation of A.R., 723 N.E.2d 476, 479 (Ind. Ct. App. 2000), to support that this section is the exclusive means for seeking relief in a situation like this.

Judge Crone concurred in result in a separate opinion, writing that In re Paternity of K.I., 903 N.E.2d 453 (Ind. 2009), controls. He disagreed with using A.R. to affirm, believing trial courts should be given sufficient flexibility to ensure the best interests of the child are served in each case.

K.I. held that a person’s de facto custodian status deals only with the question of custody and that the statute is silent on the question of visitation. Judge Crone believed the instant case shows the inequity of carrying K.I.’s holding to its illogical conclusion as he’s found no basis for granting J.D. visitation under Indiana law.

J.D. shouldn’t be put in an all-or-nothing position based on circumstances almost entirely beyond his control, he wrote. He questioned why trial courts should have the legal authority in these situations to grant a birth parent custody but not any form of visitation. He also wrote that denying J.D. visitation with A.H. is troubling because he is allowed to see A.H.’s sister without issue.

“Sometimes, when we must write an opinion using initials instead of names, the impersonality tends to diminish the very real human drama created by our decision. Today we are forced to separate two young sisters on alternate weekends for no logical reason that I can discern. I believe that our legislature should review Indiana’s visitation statutes and that our supreme court should reconsider its pronouncements in K.I. so that we may avoid equally unjust results in future cases,” he wrote.
 

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  1. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  2. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  3. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  4. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  5. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

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