All attorneys admitted to the Indiana Bar by the Indiana Supreme Court can practice domestic law and many do, as well as in most any other areas of law.1 However, divorce and paternity law are as much as court of law as courts of equity,2 unlike other areas of civil law where the case boils down to very specific relief, such as the payment of money. With these latter cases, after appeals are exhausted, the case is over. Family law is very different as it relates to any child custody case, in that the case remains open until the children are emancipated3 or finish their post-graduate degree, if the parents are ordered to contribute towards their children’s education.4 This blog explores some of the hallmarks of a deft high-conflict child custody lawyer.
The first and perhaps most important characteristic of an effective divorce attorney who is able to handle a high-conflict divorce case is his or her ability to actually take the case to trial and through trial (and perhaps appeal). Many highly contested custody cases go for more than one day of trial. Since the Indiana Supreme Court ruled that trial courts order the parties to Alternative Dispute Resolution,5 which is mostly mediation in divorce cases, most courts have local rules requiring the parties to mediate the divorce case (and paternity case) before being able to go to trial. If the case is not mediated, the court may vacate (e.g., remove it from the court’s calendar) the final hearing date until mediation is complete.
In mediation, almost all divorce and paternity cases settle on all, or most all, of the issues if the case is properly prepared. This is rarely the case with high-conflict child custody cases. Most of these highly contested cases have parties entrenched in their positions and believe their views on physical and legal custody are correct. As such, they are protecting the children’s best interests and are unwilling to budge at mediation. These cases almost always wind up going to trial. Thus, it is critical you select a domestic attorney for your case who has tried lengthy high-conflict custody cases, if it is indeed one of those cases (this blog provides some insights into the hallmarks of high-conflict custody cases). It is entirely possible most divorce lawyers settle almost all of their cases and do not try cases. The time to learn this and change counsel is not after mediation fails and tension arises between attorney and client over actually taking the case to trial—which is very likely set in the immediate future. A good rule of thumb is to retain a domestic attorney for your high-conflict custody case who expects the case will be tried. This mindset will have your attorney (and you) prepared (or mostly prepared) for trial if the mediation fails.
Another key point is to retain domestic counsel who understands the wide array of legal tools available under the Divorce and Paternity Acts to help you work toward your custody goals in high-conflict custody cases. There are several key tools. One powerful tool is a custody evaluation performed by a clinical psychologist.6 Since many high-conflict custody cases involve mental health and/or substance abuse issues, a custody evaluation may be all but necessary to uncover otherwise undiagnosed conditions. A child clinical psychologist is the only professional that may be employed in high-conflict custody cases that can perform a wide battery of testing to uncover underlying substance abuse or psychological issues, ranging from prescription and illicit drug use to severe personality disorders. However, a custody evaluation is not the right tool for every high-conflict custody case.
In addition, a skilled and seasoned child custody lawyer will generally conduct extensive discovery to uncover information as much as he or she possibly can do so to advance the position of his or her client. Discovery is nothing more than legal jargon for getting information that is reasonably calculated to lead to admissible trial evidence.7 In high conflict custody cases, this discovery may include, but not limited to, requesting records from third parties such as schools, doctors, therapists, and the like. Often third-party discovery requests ignite disputes that have to be resolved by the judge. Only experienced custody lawyers will know to ask for these records and how to ask the client where to look for the same. Other common discovery tools may be deposing Department of Child Services investigators,8 teachers, the opposing party and the like. Make no mistake, high-conflict custody cases are much like wars, but the soldiers are dressed in suits.
Finally, many, if not most, high-conflict custody cases spawn companion legal matters that it is often wise to have your custody lawyer handle so he or she knows the entire “story” and can manage the relative risks and competing legal interests. It is common to have a request for protective order under the Indiana Civil Order Protection Act9 action filed in a high-conflict custody case, a criminal allegation, or some secret revealed that changes how the custody case is handled. Having different lawyers for these cases often does not make sense. What a criminal defense lawyer knows may have key importance in the domestic case but be unknown to the domestic counsel until it is too late and causes irreparable harm to one of the cases.10
As an example, from an actual case, take a husband who is an avid gun collector who is getting divorced and wants sole physical custody (because he thinks his wife is “crazy”) who modified guns years ago into illegal weapons (i.e., machine guns). A preliminary hearing to determine custody during the pendency of the divorce is requested and held. At this hearing, the wife has local and federal agents (ATF) present in the courtroom, and the husband is asked on the stand if he did so alter these weapons (his fingerprints are on them). At that very moment, the focus of the case turns from a parent’s (husband) custody desire and fundamental constitutional right to raise his or her children,11 to one that involves loss of his freedom by arrest, conviction, and long-term incarceration for breaking state and federal guns laws under the National Firearms Act of 1934 and the Gun Control Act of 1968. The skilled high-conflict custody advocate will likely (and did) ask for a short court recess and advise his or her client to assert his Fifth Amendment Privilege against self-incrimination and refuse to answer this question.12 This can be held against anyone in a civil proceeding, and such a person asserting this privilege will probably not (and did not) prevail in obtaining sole physical custody in the preliminary hearing. Don’t you want your domestic custody counsel to know this?
Ciyou & Associates, P.C. attorneys have handled some of the most complex domestic cases that arise in high-conflict custody cases, ranging from international kidnapping13 to custody battles with pending criminal matters, protective order requests, and Department of Child Services investigations. We know how to handle high-conflict custody cases as well as they can be handled and are able to react to whatever comes to pass any given case. We hope you find this blog informative in determining what to look for in a high-conflict custody case. If so, this blog has met its educational goal. This blog is not intended to be relied upon in any given case, nor is it legal advice. It is an advertisement.
- There are certain areas of law that an Indiana-bar admitted attorney cannot practice without special admission to other bars, such as patent law. In addition, there are several areas of law that most attorneys do exclusively or do not handle at all, such as bankruptcy law or federal practice.
- This is apparent by the sheer volume of statutes that apply to divorce cases that provide trial courts with vast discretion to apply many laws to different facts in order to craft a child custody order that meets the best interests of the child(ren). Although the term “equity” is not often found in appellate case law today, the earliest of divorce cases in Indiana note they are “of equitable cognizance”. Powell v. Powell, 3 N.E. 639 (Ind.1885).
- Indiana Code section 31-16-6-6.
- Indiana Code section 31-16-6-2
- Cohoon v. Cohoon, 784 N.E.2d 904 (Ind.2003).
- In the Divorce Act this authority is found in Indiana Code section 31-17-2-8 and is largely handled the same way in paternity cases. Also, it may be possible to get a mental health evaluation under Indiana Rule of Trial Procedure 35.
- The rules governing discovery are found in Indiana Rules of Trial Procedure 26 through 37.
- Recognize that CPS matters are confidential matters and may limit discovery by statute.
- Indiana Code section 31-26-5-1 et. seq.
- In some cases, co-counsel may need to be brought in to assist with companion cases depending on a variety of factors.
- Troxel v. Granville, 530 U.S.57 (2000).
- The Fifth Amendment to the United States Constitution is applicable to the States through the Due Process Clause of the United Status Constitution.
- Cole v. Cole, 187 N.E.3d 957 (2022).