South Bend Child Support Lawyer Explains Your Driver’s License and Child Support

Posted on August 31, 2011 by jeffhaupt

For many people driving is a necessity. It is the way you get to and from work, it could even be a required part of your work. For many people it would be hard to imagine their day to day existence without having the ability to drive. If you owe back child support that could easily be a reality.

Child Support Court and Your Driver’s License

You driver’s license can be impacted by child support in one of two ways. First, if you are found in contempt by a Court in Indiana for not paying child support, the Court has the authority to suspend your driving privileges, I.C. 31-16-12-7:

If a court finds that a person is delinquent (as defined in IC 31-25-4-2) as a result of an intentional violation of an order for support, the court shall issue an order to the bureau of motor vehicles:
(1) stating that the person is delinquent; and
(2) ordering the following:
(A) If the person who is the subject of the order holds a driving license or permit on the date of issuance of the order, that the driving privileges of the person be suspended until further order of the court.
(B) If the person who is the subject of the order does not hold a driving license or permit on the date of issuance of the order, that the bureau may not issue a driving license or permit to the person until the bureau receives a further order of the court.

Essentially, the statute requires the Court to suspend your driver’s license if you are found to have violated the Court’s Order for you to pay child support. The language is clear in that the court shall suspend the driver’s license, but as a practical matter, I have seen courts issue rulings on this with every contempt finding and other courts rule that this would impact the person’s ability to find work or to get to work.

Often times when a Court does suspend a person’s driving privileges as the result of being in Contempt for failing to pail child support, the Court will issue a hardship license. This at the very least will allow you to drive to and from work and during work. If you are facing the possibility of appearing before the court on a Rule to Show Cause, be aware that having your driver’s license suspended for unpaid child support is a strong possibility.

Child Support Title IV-D Agencies and Your Driver’s License

The second way that being delinquent in child support can lead to your license being suspended is by way of an administrative driver’s license suspension. The Title IV-D agencies throughout the State of Indiana have the authority to suspend a person’s driver’s license for being behind in child support. Indiana Code 31-25-4-32 provides that:

When the Title IV-D agency finds that an obligor is delinquent, the Title IV-D agency shall send, to a verified address, a notice to the obligor that does the following:
(1) Specifies that the obligor is delinquent.
(2) Describes the amount of child support that the obligor is in arrears.
(3) States that unless the obligor:
(A) pays the obligor’s child support arrearage in full;
(B) establishes a payment plan with the Title IV-D agency to pay the arrearage, which includes an income withholding order; or
(C) requests a hearing under section 33 of this chapter;
within twenty (20) days after the date the notice is mailed, the Title IV-D agency shall issue an order to the bureau of motor vehicles stating that the obligor is delinquent and that the obligor’s driving privileges shall be suspended.

In this type of situation the only defense you have to this suspension is a mistake of fact regarding the arrearage and the delinquency. For instance, if you have been making direct payments or non-conforming payments of support that might have been allowed under your divorce decree (or in some cases under Indiana law) the child support arrearage number that the Title IV-D agency would possess would be incorrect. For most cases, this defense is not viable so you have to consider two other options.

Child Support Arrearage Payment Plans and Your Driver’s License

Part of the requirement set forth above in Indiana Code 31-25-4-32 allows the child support obligor to establish a payment plan to pay off the arrearage. This payment plan must include an income withholding order. If the payment plan is agreeable, then the agency will refrain from suspending the license.

Of course, you can always payoff the child support arrearage which, would then eliminate the ability of the state to suspend your driver’s license for past due child support. In some cases, this may be an option and in other situations the payment plan may be more realistic.

The Hardship License

If your license is being suspended by the child support agency and you request a hearing to contest the suspension, you can request that a hardship license be issued. Indiana Code 31-25-4-33, you may be able to obtain a hardship license if you can show the following:

(d) At the hearing described in subsection (c), if the obligor whose driving license or permit is suspended under this chapter proves to the satisfaction of the Title IV-D agency that public transportation is unavailable for travel by the obligor:
(1) to and from the obligor’s regular place of employment;
(2) in the course of the obligor’s regular employment;
(3) to and from the obligor’s place of worship; or
(4) to participate in parenting time with the obligor’s children consistent with a court order granting parenting time;
the Title IV-D agency may order the bureau of motor vehicles to issue the obligor a restricted driving permit.

if you are experiencing problems with child support, contact me to schedule your free consultation.

The Law Office of Jeffery M. Haupt is located in South Bend, Indiana and helps people handle family law issues such as divorce, parenting time, child support, paternity, and child custody. The information in this blog should only be used for educational purposes and not be construed as legal advice. Nothing in this blog creates an attorney-client relationship between me and any readers of this blog. No attorney-client relationship is created until you have a document from me saying so. DO NOT POST ABOUT CASE PARTICULARS IN THE COMMENT SECTION.

Collecting Child Support – South Bend Child Support Lawyer

Posted on August 30, 2011 by jeffhaupt

Receiving regular child support payments is important to the upbringing of any child that lives in a single parent home. There are times when incoming child support payment can become irregular. Sometimes there is a legitimate excuse, such as job loss or health issue. Other times, there may be situations in which a parent is choosing not to pay child support for one reason or another, which can be a violation of the Court’s order.

Contempt as a means to collect child support

One very effective way in coercing the payment of child support is by use of the Court’s Contempt Powers. What this means is that the Court will hear evidence as to whether or not someone has violated the Court’s order, in this case failed to pay child support.

Getting the Court to consider whether or not the person is in contempt for failure to pay child support involves the filing of a Rule to Show Cause. In filing this rule the facts of the case as they relate to child support are set out: when was the order issued, how much is the weekly order, and how far behind is the person. The Rule to Show Cause is then served on the other party, and it will instruct him or her on when they have to appear before the Court to present their side of the case.

If the court finds that this violation was willful or intentional, the Court has the ability to find the person in “Contempt of Court.” By finding the person in contempt, the Court can use a jail sentence, fine, community service, etc., to coerce the person to comply with the Court order. Essentially, this usually means the person will have to pay an amount to avoid having to go to jail.

Paying Attorney Fees In Delinquent Child Support Cases

In a situation where, the person is found to be in Contempt of Court, your attorney can also petition the Court for an attorney fee award. This is a situation where you would not have had to bring the Contempt Action, but for the person’s failure to comply with the Court Order. Many times, this can help assist you in collecting the child support due.

Driver’s License Suspension

There are two ways a driver’s license can be suspended for failing to pay child support. The first is by an administrative action from the IV-D Child Support agency. Essentially, the agency will inform the person that they are in areas and that their license will be suspended. The non-custodial parent has the ability to ask for an administrative hearing to challenge this suspension and/or present a payment plan to avoid the suspension.

The other way that a driver’s license can be suspended for failure to pay child support is through the Rule to Show Cause/Contempt Powers of the Court. Under Indiana law, the Court has the power to suspend the person’s license if the person is found in contempt for failing to pay child support as ordered. The Court will generally give the person a chance to remedy this by showing that they have begun to make regular payments over a period of time.

if you need help with collecting child support or having your child support modified contact me for your free consultation.

South Bend Divorce Lawyer – What to Expect in a Divorce

Posted on August 29, 2011 by jeffhaupt

Regardless of how complicated or simple your divorce may be from a legal standpoint, there are certain steps to the divorce process that remain a constant. For instance, every divorce filing begins with the filing of a Petition for Dissolution of Marriage. Whether you are representing yourself or you have a divorce lawyer, this will be the first step in the process.

The Divorce Petition

When filing for divorce, you have to petition the court for the relief that you are seeking. In this case, you are wanting the Court to terminate your legal marriage, or simply have the court grant you a divorce. Doing this requires you to file a Petition for Dissolution with the Court. This Petition will be served on the other party, letting them know that you are legally seeking a divorce.

Along with the Petition you will also have to serve your spouse with a Summons. The summons explains to the other party what it is you are attempting to do and the time frame in which they have to respond (in an Indiana divorce case it is sixty (60) days).

Provisional Hearings in a Divorce

The next process may or may not happen in a particular divorce depending on the facts of your individual case. If you are in a relationship where there is marital property, children, etc., then you may want to address those issues right away instead of waiting the sixty (60) days to request a final hearing. If that is the situation, then you would request a provisional hearing with the court.

During the provisional hearing, you and your spouse (or your divorce lawyers) will either negotiate or make arguments to the Court regarding what to do with issues such as who should live in the marital residence, have custody of the children, how much child support should be paid, should spousal support be paid, etc. These orders will be temporary until the final divorce decree is entered.

Mediation in a Divorce Case

Many courts are requiring that parties attempt to negotiate or mediate outstanding issues in a divorce case. If you and your spouse have already agreed on everything when you file, then you have what is called an uncontested divorce, and this step wouldn’t really be necessary. However, in many divorce matters, there are issues that need to be dealt with and this is where mediation can be helpful.

In most situations, the mediation process will involve the parties sitting down together with their divorce lawyers and a third party who is neutral to your divorce. This third party, or mediator, will work to help you and the other party attempt to reach an agreement on the issues that are still pending before the Court. A mediation can help you resolve everything from retirement account division, to child custody, to the marital residence, to dividing up debt.

Why use mediation? First, it may be required by the Court handling your divorce case. Second, it can be helpful to resolve most if not all of the issues that are pending in your divorce case. This gives you some control and say in how your property will be divided and how matters such as child custody will be handled. Compare that with going before the Court and having a contested divorce hearing. In that situation, you may get your divorce resolved, but you may not have an outcome that you want.

Final Divorce Hearing

In Indiana the final divorce hearing can come in two forms. The first will be a situation where you will agree on all issues and you and your divorce lawyer will be presenting that agreement to the Court.

The other situation is a contested final hearing. If this is needed, then the Court will set a trial for the matters to be presented before the Court. This is a situation where your divorce lawyer will present evidence by calling witnesses and presenting documents. Many times contested hearings occur due to custody issues or splitting of retirement accounts. Once the trial has been presented the Court will issue an Order or Decree after reviewing all the evidence.

if you are facing a divorce, contact south bend divorce lawyer, jeffery m haupt to learn more about your rights.

Understanding Indiana Spousal Maintenance

Posted on August 26, 2011 by jeffhaupt

In an Indiana divorce case you have two situations where spousal maintenance can be paid. The first is during the provisional period of the divorce. This is more common in situations where there is a discrepancy of incomes between the parties and one spouse needs to have spousal maintenance in order to maintain a certain level of existence. The second situation in which spousal maintenance can be paid is post decree. There are certain statutory requirements that have to be met for the court to order spousal maintenance.

Spousal Maintenance and Indiana Code 31-15-7-2

Indiana has codified when a spousal maintenance award would be appropriate:

A court may make the following findings concerning maintenance:
(1) If the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected, the court may find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court.

(2) If the court finds that:
(A) a spouse lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse’s needs; and
(B) the spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment; the court may find that maintenance is necessary for the spouse in an amount and for a period of time that the court considers appropriate.
(3) After considering:
(A) the educational level of each spouse at the time of marriage and at the time the action is commenced;
(B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
(D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment; a court may find that rehabilitative maintenance for the spouse seeking maintenance is necessary in an amount and for a period of time that the court considers appropriate, but not to exceed three (3) years from the date of the final decree.

Temporary Spousal Maintenance

The most common spousal maintenance period occurs during the provisional part of a divorce. This typically comes about because one spouse has not been working during the marriage and needs a certain level of spousal maintenance to help maintain the marital residence or alternative living arrangements. If the spousal maintenance is part of the provisional order, it will terminate upon the final decree being entered (unless the decree calls for the spousal maintenance to continue).

It is also important to remember to preserve any spousal maintenance arrearages that may exist at the time the decree is entered. Indiana law makes the final decree controlling in a dissolution matter. If it isn’t mentioned in the decree than it is usually considered waived. This would go for any past due spousal maintenance payments as well.

Post Decree Spousal Maintenance

As the statute above sets out, there are three different reasons that a party to a divorce would be entitled to some level of spousal maintenance. The first is if a situation exists where the spouse is mentally or physically incapacitated or cannot care for themselves due to some form of limited ability. Under this scenario spousal maintenance will continue so long as the person remains limited in their ability to care for themselves.

The second scenario where a court would aware spousal maintenance is if the spouse is taking care of a special needs child and that care would require the spouse to not be able to work, then the Court may order spousal maintenance for a period of time.

Finally, the most common form of spousal maintenance occurs when one spouse was a stay at home parent and left a career or did not pursue further education because of the need for him or her to stay at home and be a homemaker. If the court finds that this person would need spousal maintenance so that he or she can further there education in hopes of landing a job, then the court can award spousal maintenance for a period of up to three (3) years.

Spousal Maintenance and Limits on Income

There are limits that courts have to consider when ordering spousal maintenance. The Indiana Child Support Guidelines provide some guidance to the Court on how much should be ordered. When it comes to a temporary spousal maintenance order, the Guidelines provide that:

It is recommended that temporary maintenance not exceed thirty‑five percent (35%) of the obligor’s weekly adjusted income. The maximum award should be reserved for those instances where the custodial spouse has no income or no means of support, taking into consideration that spouse’s present living arrangement (i.e., whether or not he or she lives with someone who shares or bears the majority of the living expense, lives in the marital residence with little or no expense, lives in military housing, etc.).

It is further recommended that the total of temporary maintenance and child support should not exceed fifty percent (50%) of the obligor’s weekly adjusted income. In computing temporary maintenance, in‑kind payments, such as the payment of utilities, house payments, rent, etc., should also be included in calculating the percentage limitations. Care must also be taken to ensure that the obligor is not deprived of the ability to support himself or herself.

For Spousal Maintenance that extends beyond the decree, the Guidelines offer a similar stance in terms of limits on amounts to be ordered:

It should also be emphasized that the recommendations concerning maintenance apply only to temporary maintenance, not maintenance in the Final Decree. An award of spousal maintenance in the Final Decree must, of course, be made in accordance with Indiana statute. These Guidelines do not alter those requirements. Theoretically, when setting temporary maintenance, child support should come first. That is, if child support is set at forty percent (40%) of the obligor’s weekly adjusted income, only a maximum of ten percent (10%) of the obligor’s income would be available for maintenance. That distinction, however, makes little practical difference. As with temporary maintenance, care should be taken to leave the obligor with adequate income for subsistence. In many instances the court will have to review the impact of taxes on the obligor’s income before entering an order for spousal maintenance in addition to child support to avoid injustice to the obligor.

if you have questions on how or if spousal maintenance will come up in your divorce, contact me today for your free consultation.

The Law Office of Jeffery M. Haupt is located in South Bend, Indiana and helps people handle family law issues such as divorce, parenting time, child support, paternity, child custody and criminal matters such as DUI/OWI, drug offenses, traffic offenses, etc. The information in this blog should only be used for educational purposes and not be construed as legal advice. Nothing in this blog creates an attorney-client relationship between me and any readers of this blog. No attorney-client relationship is created until you have a document from me saying so. DO NOT POST ABOUT CASE PARTICULARS IN THE COMMENT SECTION.

Charged with a Misdemeanor? What to expect in Indiana

Posted on August 25, 2011 by jeffhaupt

If you have been charged with a misdemeanor you may have questions about what can happen with your criminal case. Every type of crime has a maximum sentence and fine that can be levied against a person. This doesn’t mean that your misdemeanor case will result in a fine or jail time, but it is good to know what the possibilities could be.

Class A Misdemeanor

Indiana Code Section 35-50-3-2 provides that, “[a] person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year; in addition, he may be fined not more than five thousand dollars ($5,000).”

Class B Misdemeanor

Indiana Code Section 35-50-3-3 provides that, “[a] person who commits a Class B misdemeanor shall be imprisoned for a fixed term of not more than one hundred eighty (180) days; in addition, he may be fined not more than one thousand dollars ($1,000).”

Class C Misdemeanor

Indiana Code Section 35-50-3-4 provides that, “[a] person who commits a Class C misdemeanor shall be imprisoned for a fixed term of not more than sixty (60) days; in addition, he may be fined not more than five hundred dollars ($500).”

Understanding the Misdemeanor Sentence

So you may be looking at those sentences above and thinking that jail time is automatic in your misdemeanor case. Indiana judges have a bit of discretion when it comes to sentencing. Indiana Code 35-50-3-1 provides that:

(a) The court may suspend any part of a sentence for a misdemeanor.

(b) Except as provided in subsection (c), whenever the court suspends in whole or in part a sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter. However, the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.

(c) Whenever the court suspends a sentence for a misdemeanor, if the court finds that the use or abuse of alcohol, drugs, or harmful substances is a contributing factor or a material element of the offense, the court may place the person on probation under IC 35-38-2 for a fixed period of not more than two (2) years. However, a court may not place a person on probation for a period of more than twelve (12) months in the absence of a report that substantiates the need for a period of probation that is longer than twelve (12) months for the purpose of completing a course of substance abuse treatment. A probation user’s fee that exceeds fifty percent (50%) of the maximum probation user’s fee allowed under IC 35-38-2-1 may not be required beyond the first twelve (12) months of probation.

As you can see from the above mentioned statute, a court can suspend any part of a misdemeanor sentence and place the defendant on probation. While on probation you do have to be careful in your actions because if your probation is revoked that suspended sentence may not be suspended for much longer.

if you are facing a misdemeanor charge, contact south bend criminal defense lawyer, jeffery m. haupt.

What does a Divorce Cost?

Posted on August 24, 2011 by jeffhaupt

When filing for a divorce some of costs are more obvious than others. For instance, most people are aware of things such as court costs, service fees, and attorney costs. While those fees are to be expected, what do they cost and are there other fees you should expect to pay?

Court Costs and Service Fees in a Divorce Case

I can speak from personal experience that in St. Joseph County, Indiana the filing fee for a divorce is $157, plus $13 for the local sheriff’s office to serve all the appropriate documents. But, just one county over (Elkhart, Indiana) the cost to file the action is $137. If you go to Tippecanoe County your divorce filing will vary based on whether or not you have children. The sheriff’s fee is still the same throughout, but as you can see this fee will vary from county to county and most definitely from state to state.

If you case has a child support order in the State of Indiana, you’ll have to be prepared to pay a yearly clerk’s fee.

Divorce Lawyer Fees

There is no quick and easy answer on how much to expect to pay for your divorce lawyer. Most lawyers are going to charge an hourly rate for representation in a divorce matter. The hourly fee range in South Bend, Indiana, tends to go between $125 an hour to $250 an hour. While you may find a lawyer willing to take on a matter based on a flat fee structure, you need to make sure that you understand what exactly the flat fee gets you. The same goes for hourly fees as well, find out how the rate breaks down and how you are billed.

Mediation Fees in Divorce Cases

I wrote an earlier post about how mediation can be effective in helping parties reach a divorce settlement. However, like most things in a divorce case it is not free. You may be able to find a mediator that offers a sliding fee scale based on incomes of the parties. In other cases, you may have to pay an hourly fee for the mediator’s services. Typically, this person will also be a practicing attorney, so the fee structure will be similar to that of other attorneys in your area.

Co-Parenting Classes

South Bend divorce cases make it mandatory that parties with children complete a co-parenting program before the divorce will even be granted. These classes have a small fee associated with them. Sometimes this fee can be waived if you are declared indigent by the Court (and the class is required by the state or the courts).

Mortgage Refinance Fees and/or Realtor’s Fees

How’s that fit into an article on divorce case fees? In many divorce cases the marital residence will be jointly owned. The party not staying in the marital residence will want to remove his or her name from the mortgage as part of the divorce settlement. This typically requires the other party to refinance the mortgage, and refinancing a mortgage has fees associated with it.

In some cases, the parties cannot afford the house after the divorce is completed. If that is the case, the house will have to be sold. If there is enough equity in the house then the fees will be paid out of the proceeds (of course that is money that is no longer in your pocket!) or if there are not enough proceeds, someone will have to pay the closing costs!

Counseling Services (pre-Settlement and Post Divorce)

Counseling can be ordered in situations where a party request it if they feel that the marriage can be salvaged. These services are no different than if you went to get marriage counseling before divorce. In situations where the divorce involves children, the Court may have more authority to order the parties to involve the children in counseling to help them with surviving the divorce process.

This list is not exhaustive as you can have many different fees that will come up during your divorce, it is always best to discuss this with a divorce lawyer.

5 Thoughts from a Divorce Lawyer

Posted on August 23, 2011 by jeffhaupt

Going through a divorce is never easy for anyone involved. Certainly a good divorce layer can help walk you through the process, but at the end of the day it is still a divorce. If you are thinking about filing for a divorce or consulting with a divorce lawyer, here are 5 things to consider.

Choose a Divorce Lawyer that fits your Personality

Chances are you are going to be working with this individual until the divorce is resolved and in some cases may be even longer. You need to consider more than just costs when consulting with a divorce lawyer. Does he or she explain the legal aspects to you in a way that you can understand, or are they speaking over your head? Is the divorce lawyer a “courtroom warrior,” but you want to avoid the courtroom at all costs?

Finding a divorce lawyer that you like can take time. But, the decision on who to hire is yours and yours alone. Many times a divorce lawyer will offer free or low cost consultations to give you the chance to meet with him or her to discuss the specifics of your matter and to determine the best direction for your case.

Ask Your Divorce Lawyer how their Fee Structure Works

While you shouldn’t pick a divorce lawyer solely on cost, you should be aware of what those costs will be. It is impossible to give an exact figure as to how many billable hours your case will take, but most lawyers can give you an idea of what the range may be. Or if they are going to charge a flat fee for the divorce, he or she should clearly state what that fee covers. Your flat fee may cover things such as negotiations and filings, but not mediation or trials. Make sure that the divorce lawyer with whom you are meeting clearly explains their fees to you.

How long is the divorce process?

Different jurisdictions move at different paces. This is a reasonable question and one that a divorce lawyer should be able to answer. Just remember that any number given will likely be an estimate as it is impossible to predict what other parties may do or what the court schedule may look like, but at least the process can be explained to you.

Most jurisdictions have a minimum amount of time that you have to wait until a final hearing will be granted. For instance, in Indiana you have to wait 60 days from the filing of your Petition for Dissolution until a final hearing can be requested.

Will there be any Orders Before the Divorce is Finalized

In Indiana, we have what we call provisional orders. These orders deal with everything from joint accounts to the marital residence to the children. A divorce lawyer will be able to explain to you what to expect in terms of provisional orders as they relate to your case and your jurisdiction. The lawyer will be able to layout what to expect in terms of child support, custody and spousal maintenance. The Court will likely issue orders, if not already agreed upon, regarding possession of the marital residence, joint accounts, and tax returns.

Divorce Lawyers and Mediation

Many jurisdictions are forcing divorcing parties into mediation or negotiations. This is not a bad thing. Your divorce lawyer can help explain this process to you in the initial stages of the divorce and make sure that you understand how mediation works. Once the mediation occurs, your lawyer will hopefully help you facilitate an agreement on all or some of the issues.

every case is fact specific, if you need a divorce lawyer in the South Bend area, contact me.

Good Faith Exceptions to an Invalid Search Warrant – South Bend Criminal Defense Lawyer

Posted on August 22, 2011 by jeffhaupt

For the most part when a search warrant is issued, it typically will be valid. Often times suppression of evidence arises out of situations where there wasn’t a valid reason for the search in the first place, such as a traffic stop without probable cause. There are occasions when even evidence obtained under a search warrant can be excluded because the warrant was not technically valid or was based on false information. Even the Good Faith Exception cannot save a warrant based on false information.

So What is the Good Faith Exception to an Invalid Search Warrant?

Indiana Code 35-37-4-5 defines the good faith exception as:

Sec. 5. (a) In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an infraction, the court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a law enforcement officer in good faith.
(b) For purposes of this section, evidence is obtained by a law enforcement officer in good faith if:
(1) it is obtained pursuant to:
(A) a search warrant that was properly issued upon a determination of probable cause by a neutral and detached magistrate, that is free from obvious defects other than nondeliberate errors made in its preparation, and that was reasonably believed by the law enforcement officer to be valid;

What this means is that if a police officer acted on a search warrant in “good faith” that has been authorized by a judge or a magistrate, and the search warrant is later invalidated for a technical reason, then the evidence may still be admissible. As with most things in the law, there are exceptions to even the Goof Faith Exception Rule and its application to a search warrant. As the Indiana Court of Appeals has recently held:

“the good faith exception does not apply where: (1) the warrant is based on false information knowingly or recklessly supplied; (2) the warrant is facially deficient; (3) the issuing magistrate is not detached and neutral; or (4) the affidavit or sworn testimony upon which the probable cause rests is so lacking in indicia of probable cause as to render an official belief in the existence of the warrant unreasonable.” Bryan Johnson v. State of Indiana, 45A05-1012-CR-816 (Ind. App 2011)

In examining how this issues can apply to a case, you need to look at the specific facts of a particular case and whether or not the search warrant would still be valid even with the Good Faith Exception, especially as it relates to probable cause. For instance, a situation where an officer runs the plates on a car and finds that the female owner of the car has a suspended license cannot subsequently determine that the driver is a male and still proceed to ask for identification based on the original reason for the stop. Holly v. State, 918 N.E.2d 323, 324 (Ind. 2009). Compare that to a situation where a computer brought into a repair shop contains a folder with an incriminating title, and the officer can reasonably believe that the folder contains incriminating evidence. Even though the search warrant was invalid, the Good Faith Exception applied in the Johnson case.

every case is fact specific, if you have been arrested based on evidence produced as the result of a search warrant, you should consult an attorney.

Charged with a Misdemeanor in South Bend?

Posted on August 21, 2011 by jeffhaupt

If you have been charged with a misdemeanor in St. Joseph County, Indiana you may have the possibility of not having to face any actual conviction through the Pre-Trial Diversion program offered by the St. Joseph County Prosecutor’s Office. The program is aimed at helping those without a significant criminal background avoid having a conviction by completing a one year “probationary” period.

You do have to pay a fee to be part of this program and there are requirements such as avoiding any new arrest or charges, maintain employment or a course of study, report to the St. Joseph County Probation Department as needed, agree to support your dependents, etc. While this program may not be for everyone, it can help you avoid the possibility of having a criminal conviction on your record.

Because the program is run through the St. Joseph County’s Prosecutor’s Office it is always a good idea to consult a criminal defense lawyer before signing any agreement that may limit your trial rights or bind you to certain behaviors for a year long period of time.

Indiana Legal Custody

Posted on August 19, 2011 by jeffhaupt

There have been many times throughout my career that I have heard people use the term legal custody. What exactly does the term legal custody mean under Indiana law? Under Indiana law, legal custody gives one or both parents the, “authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training.” I.C. 31-9-2-67

There is a big difference between legal custody and physical custody. Physical custody, “means the physical care and supervision of a child.” Essentially where does the child live and go to school. It is quite possible that you can share legal custody as well as physical custody (which is more or less shared parenting time) I.C. 31-17-2-13.

Joint Legal Custody

The sharing of joint custody is not for everyone. As the Indiana Code 31-17-2-15 states:

Sec. 15. In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(3) the wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial

relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

Often times one of the most overlooked provisions of this statute seems to be the section that deals whether or not the parents can cooperate in achieving what is the best for the child. Joint legal custody does require a high degree of cooperation if both parents are going to be truly involved in the decision making process in regards to the child’s upbringing.

August 2011
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