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If something happened to me, someone will need to take care of my children. How do I name a guardian for my children?

This question is the main reason why young married couples enter the office of an estate planning attorney. The greatest concern for these clients is often not related to the efficient distribution of their wealth to the next generation. Rather, the greatest concern for young married couples is often the question of whom will care for their children if something traumatic should prevent both parents from caring for them. In fact, when a married couple has their first child, such is the opportune time to their first will.

It is critical that parents of minor children name an individual to serve as Guardian of their children in their last will and testaments. When both parents have deceased or are unable to care for their children, a probate court will look to the parents’ last will and testament in deciding whom shall serve as Guardian. Without the parents’ input through their last will and testament, the probate court may only have the opinion of self-interested family and friends to consider the question. Obviously, the most important opinion is that of the parents. Clients with young children do not want to leave the question up to anybody else than themselves.

I have been married more than once. How should I plan the inheritance for my spouse, children and stepchildren?

Sometimes clients desire that stepchildren be treated no differently van the clients biological children. Other clients sometimes want only their children to receive their property. Thus, to answer this question it is necessary for the estate planning attorney to understand the family dynamics. Further, it is important for the client to understand the legal presumptions regarding stepchildren. While this blog post cannot address particular family dynamics, it can address the treatment of second marriages and stepchildren according to Indiana law.

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I will soon be married. Should my future spouse and I enter into a prenuptial agreement?

I.               What is a prenuptial agreement?

A prenuptial agreement (sometimes called an antenuptial agreement) is an agreement made between a future married couple. Barron’s Law Dictionary (6th Edition) defines a prenuptial agreement as follows:

“An agreement entered into by two people who intend to marry each other which sets forth the rights of each person in the property of the other in the event of divorce or death. Generally, the entering into marriage constitutes sufficient consideration to make a prenuptial agreement enforceable.”

A prenuptial agreement can address several issues related to property. For instance, a prenuptial agreement can determine whether the surviving spouse will invoke his/right to the spousal share of the deceased spouse’s estate. In addition, couples may agree whether they will waive spousal rights in a qualified retirement plan. The contents of the prenuptial agreement will be different for every couple.

II.             What are some instances in which individuals should enter into a prenuptial agreement?

1.     Second Marriage: If the upcoming marriage will be a second marriage, then it may be a wise idea to consider a prenuptial agreement. The first marriage might have created property and family issues that need to be addressed by the couple prior to marriage. For example, the future husband may have children by his first marriage. By marrying his second wife, the husband may be concerned that his first wife’s children receive particular property when the husband passes away, rather than the second wife, notwithstanding his love and affection for the second wife.

2.     Inheritance: If a future spouse believes that he/she will receive an inheritance during the course of the marriage (whether it is a first marriage or a second marriage), the couple should consider a prenuptial agreement. The default rule in Indiana is that all property acquired during the marriage is marital property. In the event of divorce, the presumption is that a 50/50 split of the marital property is a just and fair division. That would include inheritance. To overcome this presumption, it may be prudent to enter into a prenuptial agreement.

3.     Business: If a future business owner will soon be married, a prenuptial agreement should be considered for the same reasons as listed in paragraph 2, above. That is, any ownership of a business that commences after marriage would become marital property, and therefore, it would be subject to division in a divorce. The founder of Amazon, Jeff Bezos, and his wife, MacKenzie Bezos, dealt with this issue in their divorce in 2019. MacKenzie Bezos received $36 billion in the divorce settlement. Food for thought: if you are planning to become the richest person in the world as is Jeff Bezos, and you want to get married, it’s probably sound advice to get a prenuptial agreement.

What Happens During a CHINS Case?

A children in need of services (CHINS) case has several types of hearings during the course of the case. The purpose of this post is to provide a brief description for each type of hearing. As will become evident, when parents are involved in this type of case, they will be in the courtroom frequently, along with many other people, to determine the care and custody of the child.

A detention hearing is the first hearing when the Department of Child Services has requested to file a petition alleging that a child in need of services. The detention hearing is to take place within forty-eight (48) hours of the child’s removal from its parents. The purpose of the detention hearing is to decide whether DCS has probable cause to file the petition. If the court decides that DCS has probable cause to file the petition alleging that the child is need of services, then DCS may place the child somewhere other than with the parents.

A factfinding hearing is usually the next hearing in a children in need of services case. At this hearing the court decided the question whether the child actually meets the statutory definition of a child in need of services. The difference between this hearing and the detention hearing is mainly the burden of proof. Whereas the detention hearing only requires probable cause (a very low standard) to keep a child in the custody of DCS, DCS must prove their case beyond a reasonable doubt (the same standard used for criminal jury trials). If the court decides that DCS has not met its burden, the case is dismissed.

If the court decides that the child is in need of services, the next hearing is typically the dispositional hearing. The purpose of this hearing is to decide what outcomes need to be reached for the court to dismiss the case. In other words, the court will decide what goals the parents and children must meet so that the care and safety of the child may be ensured in the future. The duration of the case, in large part, is dependent upon how quickly parents and children can reach these dispositional goals.

After the dispositional hearing, the court will hold review hearings on a periodic basis. Sometimes the review hearings may be scheduled every three months. The Indiana Code requires that the review hearings take place at least once every six (6) months. For each of these hearings, DCS will submit a written report to the court concerning the progress of the parents and child. The court appointed special advocate (CASA) may also submit a report concerning the case. These review hearings are a great opportunity for the court to hear the concerns of parents, especially if parents do not believe their DCS caseworkers or other service providers are not treating the parents fairly.

The last type of hearing is a permanency hearing. At this very important hearing, the court decides whether the future permanency plan for the child should remain reunification with parents. The court may decide that a guardianship or adoption is more appropriate for the child. Obviously, the stakes are great when a permanency hearing is on the docket. It is important that the court fully understands each party's situation so that the court may make the best decision possible for the child. 

Who is Involved in a Child in Need of Services Case?

As discussed last week, a child in need of services (CHINS) case arises when it becomes essential that a court get involved in a child’s care. The mere existence of a court case involving the child is disruptive to a family’s normal activities. But a CHINS case involves much more than going to court. This is because so many various people are involved in a single CHINS case. Since it is a child’s well being at issue, the stakes are high, and so having several people involved in a case is important. But at the same time, each involved person has his/her own opinion. Consequently, the CHINS case can become quite complex.

Of course, the parents are involved in the CHINS case. Sometimes, a father and mother are together, and they can work together to “get back on their feet”. Other times, father and mother are not together. When this happens, sometimes a custody battle may emerge out of the CHINS case.

Attorneys are involved in CHINS cases. Each parent is entitled to legal representation during a CHINS case. If a parent is destitute, the court may appoint an attorney to represent him/her. It is important to have representation to understand a parent’s current situation and assist in articulating issues to the court.

The Indiana Department of Child Services (DCS) is involved in CHINS cases. DCS has its own attorneys and case workers. The DCS attorneys are responsible for filing the verified petition that a child is in need of services and other subsequent motions and progress reports. The DCS case workers are responsible for assisting the parent’s and child’s progress toward their goals.

Service providers are also involved in the CHINS case. These people offer services to the parents and children. The types of services run the gamut. The services may include substance abuse treatment, mental health treatment, home based case management, etc. Often it is the practice of DCS to determine what the needs of the family are and then to refer services to meet the needs of the family.

A judge is involved in a CHINS case. A judge will be the decision maker throughout the case. The judge will determine whether a child is in need of services, what dispositional goals must be met for the case to close, and whether those goals have been met. The judge will read various court filings to make these determinations.

A court appointed special advocate (CASA) is involved in a CHINS case. Usually, there is a county director of the CASA program who will be at almost all of the CHINS hearings. For most CHINS cases, CASA will have a volunteer to assess how a child is doing and to make his/her own report to the court. CASA is important because CASA serves like somewhat of a neutral party in a CHINS case.

All of the above people are involved in any given CHINS matter. Obviously, with so many various people involved, there can be a multitude of opinions about what is best for a child. Given the multitude of opinions, it is important that all parties cooperate with one another to do what is best for the child, and when parties reach an impasse, the parties need to advocate for their positions before the court and have the court make an informed decision.

What is a Child in Need of Services Case?

These days the Indiana Department of Child Services (DCS) is often caught up in the news. Most of the attention centers around children in need of services (CHINS) cases and termination of parental rights (TPR) cases. Today the Law Office of Thomas A. Vick begins a series of blog posts regarding CHINS cases.

According to the Indiana Code, a child, who is under the age of eighteen (18), is a “child in need of services” if the following is found to be true:

"(1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court."

Indiana Code § 31-34-1-1.

That is a lot of words to explain a conceptually simple matter. Simply put, a CHINS case arises when a family needs government assistance to take care of a particular child. For example, such a need might arise from a parent's substance abuse, a child's special needs, a parent's mental health, or a child’s uncontrollable behavior. While the specific facts of any given case may vary greatly, the most common factual scenario, as we are in the throes of the opioid epidemic, is a parent's substance abuse. The Indiana Department of Child Services is charged with the duty of representing the State of Indiana when a child is a "child in need of services".

Although DCS is well-intentioned, sometimes DCS gets it wrong. DCS might get it wrong for a multitude of reasons. Perhaps a DCS caseworker believes that a parent is abusing substances when that is just simply not the case. Perhaps an allegation of abuse, which is not based in fact, has been made to DCS. These are just a couple examples of how DCS sometimes might get it wrong. That is why it is important to have an attorney represent a parent in a CHINS case.