Across the United States, including in Indiana, social trends and financial pressures are driving lawmakers and courts to reconsider key areas of law that are being tested and challenged each day. Since family and criminal law constitute the majority of cases, you must understand these to be an informed citizen and have awareness as it impacts your life and legal suits and those of your friends and family. This blog says in one place at one time the “unsaid” of what is known to and a daily struggle for law enforcement officers, prosecutors, lawmakers’ judges, and attorneys.
First, natural (and adoptive) parents have a fundamental right under the United States Constitution to raise their children as they see fit. However, a significant number of parents cannot raise their children below a level of basic care, control, and nurture. They have two choices, allow them to become Children in Need of Services and, potentially, have their rights to their children terminated and be adopted by third parties if unsuccessful. The law is fairly consistent on this concept and driving policy. Or send them to a family member, friend, or neighbor.
However, there is likely to be change on the rights of third parties who are raising the children of others—as the children become bonded to these third parties, from relatives to friends and neighbors—as with their parents. These third parties have little rights now if the natural parent shows up and demands the children back, despite the psychological impact this may have for the children. The laws will change on this to a legal certainty in our lifetime because the courts and legislatures want to ensure a stable future for our society, which is not accomplished by ripping a child from the only home he or she has known. This issue will likely reach the United States Supreme Court in some form.
Second, it is probable that the fundamental right to raise one’s children will come to be successfully argued, viewed, and the law, consistent with the trending, to mean and direct joint physical and legal custody as the presumption in the divorce court to start with. This is in some respects embodied in Indiana law, which is gender neutral, but still speaks in primary physical custody and parenting time for the other parent, but mother’s still receive physical custody more than father’s because of the roles they serve in caregiving during marriage or with children born out of wedlock, but many argue this is driven by conservative values, religious overtones, and social norms.
Likely, if this change were to pass into law in Indiana, it would require the trial court judge to issue written findings (as with a deviation from child support) to award anything other than joint physical and legal custody. However, this is a massive change from the norm because even the Indiana Child Support Guidelines are based on a formula that presupposes one parent be the primary physical custodian
Third, on a more narrow scope, it is likely that statutes allowing divorced parties to be ordered to pay for their adult children’s college will be stricken down by high courts in states and perhaps the United States Supreme Court. Most state constitutions and the United States Constitution have equal protection and privileges and immunities clauses that mandate people be treated equally–married parents are free to choose not to pay for their children’s higher education. So why should divorced parties be forced to pay for college? The boundary will likely to be somewhat arbitrary and require support to be paid until the child reaches 18 or completes his or her senior class, whichever comes later. Most married parents support their children through senior graduation.
Fourth, in both family law and criminal law, there is likely to be a shift of resources and focus on mental illness and addiction, as these underpin a significant number of cases in both bodies of law. Mental health statistics indicate that as much as 25% of the United States adult population has a diagnosable (not necessarily diagnosed) mental illness at any one time.
This may play out in a number of ways, but it would certainly speak to what custody and parenting time arrangement is in a child’s best interests, as well as what resources the court should order to address such, once mental health comes into play given the presumption it is in the children’s best interests to have meaningful relationships with both parents. In the criminal arena, it is likely pure mental health issues would be addressed outside the penal system. However, most mental health resources and institutions have shrunk, been shuttered, or eliminated over the years. Such a change would be a long-time in coming to fruition.
Fifth, prisons and the entire penal system of services and resources are overwhelmed, underfunded, and an enormous taxpayer burden. A significant number of inmates are incarcerated due to mental health issues and/or drug addiction, which itself may be a mental health condition and part of a dual diagnosis. Where these inmates, many of whom are veterans, have an underlying conviction(s) that do not involve violence or a propensity for violence, incarceration is ineffective and may be argued to be a violation of the Eighth Amendment to the United States Constitution and state counterparts—there cannot be cruel and unusual punishment.
The limiting issue as a practical matter will be the lack of trained professionals and institutions to address these individuals if they are outside of the penal system. Within it, they are contained, but not treated which itself raises a number of constitutional issues.
Sixth, it is likely the death penalty will be severely limited due to current social views that influence lawmakers and courts. Further, the beyond a reasonable doubt standard, a hallmark of American justice, is shown to be ineffective to prove criminality, again and again, such as with DNA testing exonerating may inmates years after conviction.
That said, this standard standing alone is a model and envied standard, but presupposes an unbiased and competent jury, prosecutor seeking justice not just a conviction, a neutral judge, and a highly skilled criminal defense attorney, one of which is sometimes missing as evidenced, again, from the death-row inmates cases who are later exonerated.
This blog post on the future of law is written by Dixon & Moseley, P.C. attorneys who practice domestic and criminal law and make constitutional arguments where prudent on these and other topics throughout the State. This blog post does not necessarily reflect the views of Dixon & Moseley, P.C. or its attorneys. It is an amalgamation of ideas, articles, discussions occurring today as the legal system confronts new challenges in the age of technology, underpaid and under trained police, low wages for judges and tremendous caseloads, and a society that wants change. Whatever your views, be aware and involved. It is your duty and privilege for living in this Country.
Dixon & Moseley, P.C. advocates are involved in cases, volunteering for legislative assistance, and raising these issues in Indiana Court. Most importantly, Dixon & Moseley, P.C. advocates make arguments for change on the constitutional basis of laws in Indiana trial court and on appeal. This is not a solicitation for legal services or specific legal advice. It is an advertisement.