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Criminal, Family Law, and Probate Legislation 2010 Selected Statutes

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Criminal, Family Law, and Probate Legislation 2010 Selected Statutes

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  2. Involuntary Manslaughter-Fetus killed by OWI • The involuntary manslaughter statute, IC 35-42-1-4, was amended to include killing a fetus while committing or attempting to commit a violation of IC 9-30-5-1 through IC 9-30-5-5 (operating a vehicle while intoxicated). • Effective July 1, 2010.

  3. Criminal Law and Sentencing Policy Study Committee • The new Criminal Law and Sentencing Policy Study Committee is established in IC 2-5.5-5.  Committee membership will differ from present Sentencing Policy Study Committee, including a change to a single judicial member appointed by the Chief Justice, and the addition of a probation member appointed by the Probation Officers’ Professional Association.  Expands the responsibilities of the Committee to include a broad spectrum of criminal law issues. • Effective July 1, 2010.

  4. Sentencing Policy to study sexting • The Sentencing Policy Study Committee is to study and make recommendations regarding the sending of sexually suggestive or sexually explicit material over the Internet or by use of a cellular telephone or similar device, including whether school corporations should adopt policies regarding this topic. • S.E.A. 81, P.L. 100-2010, Effective July 1, 2010.

  5. Sex offender registration remedy • IC 11-8-8-22 is amended to establish procedures to remove sex offender designation due to the ex post facto holding in Wallace v. State. • Petition to remove designation is to be filed in county where the person resides or, if not a resident, where the person works or studies. Notice to DOC, AG, and sheriff. Notice to prosecutors where person resides, and also where last convicted of sex offense, and also where petition filed. • Pros’r where filed represents state, can invite AG to represent. AG can appeal. Petition must be verified and list and describe all convictions with date, court, the crime, and whether trial or plea, as well as all jurisdictions where person must register. • Effective March 24, 2010.

  6. Sex offender registration remedy bill forecloses other actions “The procedures set out in the amended statute allow the trial court, and this court on appeal, to be fully informed of a sex offender’s circumstances, including the offender’s full criminal history, dates of offenses, and reason for being required to register. Further, all interested parties are given notice of the proceedings. For these reasons, we direct Wiggins to file a petition in the proper county pursuant to the amended Indiana Code Section 11-8-8-22.” Wiggins v. State, 928 N.E.2d 837 (Ind. Ct. App., May 24, 2010) (dismissing appeal of motion raising Wallace challenge in court of conviction).

  7. Parole and community placement • The IC 35-50-6-1 standard period of parole is reduced from two years to one year unless the parolee: (1) is a repeat parolee; (2) is being placed on parole for a conviction for a crime of violence; (3) is a sex offender; or (4) has violated a DOC rule in the six months prior to release. Effective July 1, 2010. • Provides that DOC rules concerning the maintenance of order and discipline among committed persons applies to persons placed in a community corrections program or assigned to a community transition program. IC 11-11-5-1, Effective July 1, 2010.

  8. “Home” for home detentionas a condition of probation • Amends statute on home detention as a condition of probation, IC 35-38-2.5-2, to expand definition of “home” to include residence of a person who is not part of the “social unit formed by the offender’s immediate family.” • Effective July 1, 2010.

  9. Community Corrections:charges and evaluations • Counties receiving community corrections grants will no longer have to pay for committing certain persons to the DOC.   • Mandates a community corrections plan to include a method to evaluate each component of the program to determine the overall use of DOC approved best practices for the program.  Provides that the DOC must require community corrections programs to submit an evaluation of the use of DOC approved best practices for community correction program components in proposed budget requests. • Effective July 1, 2010.

  10. Credit time forIC 35-38-2.6 home detention • For direct placements in community corrections to serve minimum sentences made nonsuspendible by IC 35-50-2-2, IC 35-50-2.6-6 is amended to provide that persons on electronic home monitoring shall receive credit time. • Legislation does not specify whether the credit time change applies to persons already in direct placements as of July 1. • Effective July 1, 2010.

  11. Community Corrections: Reportson IC 35-38-2.6 commitments • Requires community corrections agencies supervising IC 35-38-2.6 direct placements for nonsuspendible minimum sentences to provide local law enforcement agencies with a list of all placed offenders with name, offense, date placement ends, phone for supervising officer, and whether offense was violent. I.C. 35-38-2.6-4-2(c), effective July 1, 2010. • Requires contract agency monitoring direct placements to notify community corrections of violations within one hour and to give first notification to local police. Monitor agency is also to set device to minimize chance offender may enter a residence or structure in violation of placement order. I.C. 35-38-2.6-4-2(e), effective July 1, 2010.

  12. Costs of incarceration “expires” • The IC 35-38-1-5(b) requirement that costs of incarceration be included in sentencing orders “expires June 30, 2012.” • Also provides, effective March 24, 2010, that “[t]he general assembly urges the legislative council to assign to the sentencing policy study committee the issue of whether a sentencing court should include the total costs of incarceration in its sentencing order.” • S.E.A. 340, P.L. 105-2010, Sections 10 and 17.

  13. Notice to bail agent ofplea hearing • Amends IC 27-10-2-8: “The court shall give the bail agent or insurer legal written notice of the defendant's trial or hearing for purposes of entering a plea at least seventy-two (72) hours before the defendant's appearance is required unless the appearance is scheduled within seventy-two (72) hours from the execution of the bond.” • Effective July 1, 2010.

  14. More Bail changes Amends IC 27-10-2-12: • to provide that only if defendant fails to appear court is to issue arrest warrant and send an order to bail agent and surety to surrender defendant, and • adds a time requirement that in less than 30 days after the failure to appear the clerk must mail the court’s order to surrender to both the bail agent and the surety, and • adds as a fourth excuse for nonproduction, to be proved by a preponderance, that authorities have refused to extradite the defendant. • Effective July 1, 2010.

  15. Notice added to exception to bail bond’s 36 month expiration • IC 27-10-2-3 provides that a bail bond expires after 36 months unless it has been forfeited. The forfeiture exception to the 36 month expiration is amended by the addition of a requirement that the bail agent and the surety have been notified by the clerk as required by IC 27-10-2-12, which requires the clerk to mail to bail agent and surety, in less than 30 days after the surrender order is issued, the court’s order to surrender defendant . • Effective July 1, 2010.

  16. No 10% Cash Bail Forfeiturefor first 120 days after no-show • Amends IC 35-33-8-7 to require that when a defendant on 10% cash bail fails to appear the court shall “declare the bond forfeited not earlier than one hundred twenty (120) days after the defendant's failure to appear.” • Effective July 1, 2010.

  17. Victim of alleged sex crime demand for 48 hour HIV test • New IC 16-41-8-6 gives the alleged victim of a charged sex crime committed by force or threat of force the right to demand that the defendant be tested for HIV within 48 hours. • Results to be sent “as soon as practicable” to victim, parents or guardian if victim under 18, and defendant. • Effective July 1, 2010.

  18. No-contact bail order if no bail hearing • Adds a new IC 35-33-8-3.6: • If a defendant charged with committing a felony or an A misdemeanor [with 5 exceptions listed in IC 5-2-6.1-8] that resulted in bodily injury is released on bail without a bail hearing, the court shall include as a condition of bail that the defendant refrain from any direct or indirect contact with the victim for 10 days after release or until the initial hearing, whichever occurs first. Provides that violations of these no contact orders are an invasion of privacy. • Court may reinstate or modify the no contact condition at initial hearing. • Effective July 1, 2010

  19. GPS monitor as bail cond’nfor domestic violence charges • A new IC 35-33-8-11 provides that a court may require a person who has been charged with a crime of domestic violence (as described in IC 35-41-1-6.3) to wear a GPS tracking device as a condition of bail. • Provides that the court may order a person ordered to wear a GPS tracking device to pay any costs associated with the GPS tracking device. • Effective July 1, 2010.

  20. Batterer’s intervention • Enacts IC 35-50-9-1 to provide that at the time of sentencing for a person convicted of domestic battery under IC 35-42-2-1.3 or a crime that involved domestic abuse, neglect, or violence, the court may require the person to complete a batterer's intervention program approved by the court.  The person shall pay all expenses of the batterer's intervention program. The batterer's intervention program must be a certified intervention program. • Effective July 1, 2010.

  21. Notice of adoption case toman bars paternity action • Amends IC 31-19-4-4, IC 31-19-4-5 and IC 31-19-9-12 to provide that if a man receives notice of adoption, he must file a notice to contest the adoption in the adoption court and cannot file a paternity action to contest the adoption. • Effective July 1, 2010.

  22. No next friend paternity byDad when adoption pending • Enacts IC 31-14-5-9 to provide that a man who is barred from establishing paternity under IC 31-19 (adoption), is prohibited from establishing paternity by filing a paternity action as next friend of the child or requesting a prosecuting attorney to file a paternity action. • Effective July 1, 2010.

  23. No putative father registryif Mom discloses Dad’s name • Amends IC 31-19-5-1 to provide that on or before the date the mother executes a written consent to the child’s adoption, a man is only required to register with the putative father registry if the mother has not disclosed the name or address of the putative father to the attorney or agency arranging the child’s adoption. • Effective July 1, 2010.

  24. Multiple adoption consentslimited • IC 31-19-9-2 now provides that once a person executes a consent to the adoption of a child, the same person may not execute a second or subsequent consent to adopt to another person, unless the steps in this section are taken to withdraw the first consent. • Effective July 1, 2010.

  25. Withdrawing consents to adoption • IC 31-19-9-2 establishes the following methods to withdraw a first consent to adoption, to allow a second consent: (1) Each original petitioner provides a written statement that the petitioner is not adopting the child, or(2) The person consenting to the adoption has been permitted to withdraw the first consent to adoption under IC 31-19-10, or(3) The court dismisses the petition for adoption filed by the original petitioner or petitioners for adoption based upon a showing, by clear and convincing evidence, that it is not in the best interests of the child that the petition for adoption be granted, or(4) The court denies the petition to adopt the child filed by the original petitioner or petitioners for adoption.

  26. Crimes barring adoption • IC 31-19-11-1, which lists felonies which prevent a person from adopting, is changed to include attempts or conspiracies of those offenses in the list. • Adds to the IC 31-19-11-1 list any offenses in other jurisdictions “substantially equivalent” to the Indiana felonies listed. • IC 31-19-11-1’s prohibition of adoptions by sex or violent offenders was amended to prohibit adoptions by sexually violent predators. • Effective July 1, 2010.

  27. Terminations for 2 CHINS decrees • IC 31-35-2-4(b)(2)(B) and IC 31-35-3-5(2)(D) now provide an alternative ground for termination of parental rights, as follows: “that one (1) of the following is true:                (i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.                 (ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.                (iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services.” • Effective July 2, 2010.

  28. Adoption business forHoosiers only • Amends IC 35-46-1-21 and IC 35-46-1-22 to provide that only an attorney or child placing agency licensed under Indiana law may provide adoption services or place certain advertisements about adoptions. • Effective July 1, 2010.

  29. Immediate supportwithholding for all cases • A court must now immediately withhold child support in all cases, rather than only Title IV-D cases. I.C. 31-14-11-2(b) and I.C. 31-16-15-0.5 • If parties reach an agreement to stay immediate withholding, adds a requirement the agreement be entered in the court’s record. IC 31-16-15-.5. • Specifies the information to be included in the Child Support Bureau’s standard form for an income withholding order. I.C. 31-16-15-2.7(c). • Effective July 1, 2010.

  30. Withholding for gamblers • Establishes the withholding of cash winnings of support obligors who are delinquent in court ordered child support if delinquent more than $2,000 or three months past due.  I.C. 4-33-4-27. Provides penalties for noncompliance with these provisions. • Removes the mandatory reinstatement fee for a driver’s license suspended because of delinquent child support. I.C. 9-25-6-16(b). • Effective July 1, 2010.

  31. Duties to cooperate withChild Support Bureau • A guardian or custodian must now make a good faith effort to cooperate with the Child Support Bureau and other agencies regarding paternity and child support matters, including assisting a prosecutor to locate or identify parents and providing other information.  I.C. 12-14-7-2, I.C. 12-14-7-3, I.C. 12-14-2-24. • A parent, custodian or guardian who refuses to cooperate in a paternity action or the establishment or enforcement of a child support order is subject to sanctions or revocation or suspension of TANF benefits. I.C. 12-14-2-18(c). • Effective July 1, 2010.

  32. Good faith effort to cooperate defined • I.C. 12-14-7-3(c) defines a guardian’s or custodian’s good faith effort to cooperate with the Support Bureau as answering calls or mail, appearing for appointments or hearings, and providing information about a child and the parents as detailed in a new “cooperate” definition in I.C. 12-7-2-43.5. • Effective July 1, 2010.

  33. Soldier emancipation onlyif on active duty • A court may now consider a child emancipated if the child is on active duty, rather than only enlisted, in the United States armed forces. • I.C. 31-16-6-6(b)(1), amended effective July 1, 2010.

  34. “Active duty” definedfor custody modifications • "Active duty", for purposes of IC 31-14-13-6.3 and IC 31-17-2-21.3, means full-time service in:        (1) the armed forces of the United States (as defined in IC 5-9-4-3); or        (2) the National Guard (as defined in IC 5-9-4-4);for a period that exceeds thirty (30) consecutive days in a calendar year. • I.C. 31-9-2-0.8, enacted effective July 1, 2010.

  35. Active duty limits on custody changes • A court may not consider a parent's absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order. • IC 31-14-13-6.3 , effective July 1, 2010.

  36. Active duty temporary custodyorder expires 10 days after return • If a court temporarily modifies a custody order due to a parent's active duty service, the order temporarily modifying the custody order terminates automatically not later than ten (10) days after the date the parent notifies the temporary custodian in writing that the parent has returned from active duty service. This subsection does not prevent a court from modifying a child custody order as provided under this article after a parent returns from active duty service. • IC 31-17-2-21.3, enacted effective July 1, 2010.

  37. Additional info for ISETS • At the time a support decree or modification issues, a parent shall supply, in addition to social security number and employer, the following information to the clerk for entry into the Indiana support enforcement tracking system (ISETS): (1) current mailing address, (2) telephone numbers, (3) date of birth, and (4) driver’s license number.  The address does not have to be supplied in the case of a participant in the address confidentiality program under IC 5-26.5. • I.C. 31-14-11-14, for paternity, as amended, and I.C. 31-16-6-9, for support orders generally, effective July 1, 2010.

  38. Notices of address and otherchanges with support • A party affected by a support order must notify the Clerk and the State Central Collection Unit of any change of address not more than 15 days after the party’s address is changed.  When a support order is issued or modified, the parties shall inform the child support bureau of the receipt of any AFDC, TANF and the social security number of a child affected by the order. • I.C. 31-16-6-10, effective July 1, 2010.

  39. Due process definedfor support notice • A court or administrative agency in any child support enforcement action is now to deem state due process for notice purposes met for a party if a diligent effort was made to ascertain the location of the party in child support cases.  Diligent effort in this case means mailing written notice to the party at the most recent residential or employer address filed with the clerk or state central collection unit. • I.C. 31-16-12-14, effective July 1, 2010.

  40. Paternity order to both parentsto provide health insurance • Amends existing provision on court’s obligation in a paternity support modification proceeding to order medical support through health insurance for the child if a Title IV-D agency petitions for the modification and the coverage is available to the parent at a reasonable cost. • Amendment authorizes the court to order either parent or both to provide the health insurance. • I.C. 31-14-11-3, effective July 1, 2010.

  41. Support order must requirechild health insurance • Amendment of 31-16-6-4(a) as follows: A child support order must include an order for medical support to be provided by require either parent or both parents to provide medical support for the child through health insurance coverage if the health insurance coverage is available to the parent at a reasonable cost. • Effective July 1, 2010.

  42. National Medical Support Notice • Requires an employer to transfer the National Medical Support Notice to the employer’s health insurance plan within 20 days after the date of the National Medical Support Notice. • I.C. 31-16-15-4.5 (b)(2), effective July 1, 2010.

  43. Pro rata $ for multipleincome withholding • When there is more than one income withholding obligation, provides for the distribution of withheld income pro rata among the persons entitled to receive the support, giving priority to current child support, and in a manner that will not result in one of the current child support obligations not being honored. • I.C. 31-16-15-17, effective July 1, 2010.

  44. Support Bureau duty to seekpaternity and support • Child Support Bureau shall in any Title IV-D case, petition:            (A) a court to:                (i) establish paternity for a child born out of wedlock; and                (ii) establish a support order, including an order for health insurance coverage under IC 27-8-23, IC 31-14-11-3, or IC 31-16-6-4; and (B) a court to establish or modify a support order, including an order for health insurance coverage under IC 27-8-23, IC 31-14-11-3, or IC 31-16-6-4, if:                (i) there is no existing support order; or                (ii) the existing order does not include a provision for private health insurance. • I.C. 31-25-4-17 (a)(7), effective July 1, 2010.

  45. No disclaiming propertyto avoid support • Prohibits a person from disclaiming an interest in property up to the extent of the person’s child support arrearage. • I.C. 32-17.5-8-2.5, effective July 1, 2010.

  46. Income withholder keepsnormal pay cycle • An income payor is not required to vary the income payor’s normal pay and distribution cycles in order to comply with the income withholding provisions.  An income payor is not subject to civil liability for income withheld and paid in accordance with an income withholding order that appears regular on its face. • I.C. 31-16-15-23.5 and I.C. 31-16-15-23.7, effective July 1, 2010.

  47. Paternity affidavit:Custody either joint or to Mom • A paternity affidavit must now contain a statement that the parents agree to share joint legal custody of the child, and if not, that mother has sole legal custody.  • Defines joint legal custody as sharing “authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training; and hav[ing] equal access to the child's school and medical records.” • I.C. 16-37-2-2.1, amended effective July 1, 2010.

  48. Paternity affidavit:Adult consult and Guidelines • Establishes a statement with signature lines on the paternity affidavit affirming that a person under eighteen (18) years of age had a chance to consult with an adult before signing the affidavit. Provides affidavit is voidable if there was no adult consultation.  • Provides that parenting time under the paternity affidavit shall be under the parenting time guidelines. • I.C. 16-37-2-2.1, amended effective July 1, 2010.

  49. Paternity de novoAffidavits reviewed alone • If there is an action to establish custody or parenting time of a party who has agreed to share joint legal custody, it shall be tried de novo. • Before the paternity affidavit is signed, it must be presented separately to the mother and the father so that they each may review it alone.  A paternity affidavit is voidable if this does not occur. • I.C. 16-37-2-2.1, amended effective July 1, 2010.

  50. Affidavit joint custody andgenetic testing • A paternity affidavit agreement to share joint legal custody is void if either of the following applies:  (1) a genetic test indicates the man who signed the affidavit as father is not the biological father; (2) the person who signed the affidavit as father fails to submit to a local health officer, not later than sixty (60) days after the date of the child’s birth, the results of a genetic test indicating the person is the biological father. • I.C. 16-37-2-2.1, amended effective July 1, 2010.

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