CHINS stands for “child in need of services”, and a CHINS case is filed by the State of Indiana, with the Department of Child Services (“DCS”) as the complaining party. This blog explores the effect of a CHINS case on child custody proceedings in pending divorce or modification matters.
A child is considered a child in need of services if the child is under the age of 18 and:
- The child is seriously endangered or his or her physical or mental condition is seriously impaired because of a caretaker's inability, refusal, or neglect to provide adequate food, shelter, clothing, education, and medical care when they are either financially able to do so, or refuse to become financially able to do so; or
- The child needs services, such as rehabilitation or treatment, that a caretaker fails or refuses to provide such care.
It is not uncommon to have an open CHINS case during a divorce. This may not only be confusing, but can get quite complicated, as in Indiana, the cases do not have to be bundled in the CHINS case. However, as long as the CHINS case is open, the judge in that case will make all decisions regarding “child custody” as the children are wards of the state.
“Child custody”, namely placement of the children in the CHINS case is decided by a juvenile court judge based upon which parent the allegations were filed against, whether the children have been removed from the home, and if you and/or your spouse are cooperating with county Department of Child Services. A CHINS case can go on for a year or more through disposition.
Depending on the circumstances, and current place the CHINS case stands, you may want to or have to:
- Hold off on divorce or modification proceedings until the CHINS case is closed, as the divorce court cannot make enforceable custody decision while the CHINS case pends.
- Proceed with the divorce or modification case and allow the CHINS court judge to determine custody with the CHINS case. The cases have to be bundled for this to occur.
- Bifurcate your divorce proceedings so that you can get a divorce decree with a ruling on all issues except for child custody, which may then be determined by the divorce court once the CHINS case is closed, if the cases are not bundled and such determined by CHINS court.
Your decisions in this type of situation may adversely affect you and your children for many years to come. Not only do you have to decide what to do about the pending divorce or modification case, but also how you will handle matters in the CHINS case. When a CHINS case is filed, allegations of abuse or neglect may be made against one or both parents. Regardless of whom the allegations are made against, both parents may either admit or deny said allegations at an initial hearing. 2 Even if all of the allegations are made against your spouse, it might not be in your best interest to admit to them without the advice of skilled counsel familiar with divorce and CHINS cases.
Take this example: In H.J. v. Indiana Department of Child Services, the Indiana Court of Appeals found that the trial court did not error in allowing the removal of the children from Mother’s care because Mother failed to protect the children from witnessing Father’s abuse of her. The original allegations in the CHINS petition were made against Father, for abusing Mother in front of the children. However, because Mother continued to allow this to happen, the children were removed from her home, although Father no longer lived in the home.3 In this type of situation, then, a mother might not want to “admit” such allegations against a father, for risk of having the children removed from her care.
Custody disputes in a divorce or modification are nothing to take lightly, particularly when there is a simultaneous CHINS proceeding; these cases are exceedingly complex and you should retain a skilled domestic relations attorney experienced in high conflict child custody cases and CHINS matters if you find yourself in this situation. The overlapping cases are exceeding difficult even for an experienced attorney to navigate. You may also need criminal counsel if the allegation in the CHINS case is criminal, such as abuse, neglect, or molest. The time to decide this is before you “admit” or “deny” the CHINS petition.
This blog was written by attorneys at Ciyou & Associates, P.C. We handle CHINS cases with such companion cases throughout the state, coupled with other cases, such as divorce and/or criminal law cases. The blog is written is for general educational purposes. It is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.