In complex child custody litigation, there are often multiple companion cases to the domestic divorce (or paternity), which may include, but is not limited to, an investigation by the Indiana Department of Child Services, criminal action (typically against the father, but not always), and/or order or request for an order under the Indiana Civil Order Protection Act (ICPOA).1 This blog covers the distinctions between these types of orders and what they may mean in domestic litigation.
Under the ICPOA, a party may seek a protective order if he or she is a relevant domestic relationship, has been the victim of a sex offense, or is subject to harassment. In many cases (except harassment), these orders of protection are often granted on an ex parte basis (this means without the other side being heard). If so, the person subject to the order may request a hearing within thirty (30) days. A violation of an ex parte order or order issued after hearing is a crime.
These orders, even ex parte orders, can be particularly problematic if the parties work in the same office. In addition, if a protective order is entered after hearing, a party is Brady disqualified, which means they cannot possess firearms under state law or firearms and ammunition under federal law. Such possession is a criminal act as well (in addition to any violation of an order of protection). If the person who the order is issued has to carry a firearm as a part of his/her job, such as security guard, police officer, or member of the military, this is particularly problematic. He or she may lose employment or be stripped of security clearances.
This noted, orders issued under the ICPOA typically do not prohibit appropriate contact with the children, even if such must occur in a supervised facility.2 However, if a litigant to the domestic case has a criminal conviction or takes a plea agreement relevant to a crime against the other party and/or child, the criminal court typically issues a no-contact order. A no-contact order literally means what it says—the guilty defendant (by bench trial, jury trial, or plea) may not have contact with his or her child(ren). In some cases, a criminal court may make a no contact order subject to order of a divorce court (or paternity court) that would allow appropriate parent-child contact.
All said, very few cases involving domestic, or family violence go to trial. They resolve by way of a plea. A standard term of most all plea agreements is that the convicted defendant does not have any contact with the parent and child. Because pleas are “negotiated”, any order by the trial court allowing supervised visits would still violate the plea and result in violation of probation. They are “negotiated” because the trial court is free to reject the plea.3 Thus, for any contact to be had with the child, it would take a sentence modification, unless the prosecutor does not object. Historically, prosecutors object.
No-contact orders and protective orders create great difficulties for the domestic relations attorney if he or she is representing the convicted defendant. It is hard-to-impossible to argue for physical custody, parenting time—even supervised parenting—at a final hearing if there is a criminal no contact order that would prohibit contact. Presupposing the criminal no-contact order can be modified, it is often the case that the parent has not seen the child for an extended period of time, making a court reluctant to find regular Indiana Parenting Time Guideline time parenting time in the child’s best interests.
Ciyou & Associates, P.C. advocates handle complex domestic cases throughout the State, including those that involve, or come to involve, issues arising under criminal law or the ICPOA. This blog is written for general educational purposes. It is not intended to be relied upon in any given legal situation, nor is it legal advice. It is an advertisement.
- Indiana Code section 34-26-5-1 et. seq.
- Supervised visitation facilities are overbooked and difficult to get worked into their calendar, even with a modification of a plea.
- Rodriguez v. State, 129 N.E.3d 789 (Ind.2019).
