A Miami Superior judge received a public admonition today from the Indiana Commission on Judicial Qualifications for granting an ex parte petition in a child custody case. The commission also noted it has repeatedly addressed this type of violation for years.
In February 2007, Judge Daniel C. Banina issued an order granting temporary custody to the father in a case involving a divorced couple still living together. The mother had sole custody of the child and decided in January 2007 she wanted to move and take their child with her.
Instead of ensuring the mother had notice of her ex-husband's emergency petition to receive temporary custody of their child and proceeding first to a hearing on the paternity request, Judge Banina issued the order granting temporary custody to the father and set a hearing for the following month. Even in a true emergency a person is entitled to a hearing within 10 days of the ex parte order; Judge Banina set the hearing for March 27, 2007.
According to the public admonition, Judge Banina violated the mother's due process rights as well as Canons 1, 2, 3B(2), 3B(8), and 3B(9) of the Code of Judicial Conduct.
"In the Commission's view, there is perhaps no greater injustice than to strip a parent of custodial rights without an opportunity to be heard and in the absence of an emergency," the Commission on Judicial Qualifications wrote in the admonition. "The Commission calls upon all judges and lawyers in Indiana to respect this fundamental notion, one the Commission and its counter-part, the Supreme Court Disciplinary Commission, attempted to convey now for several years, only to repeatedly address the same violation."