CHILD CUSTODY ORDERS
What does the court look at in a custody case?
When two people decide to establish paternity or get a divorce, the children often get caught in the middle. When these two people cannot agree on who shall have custody of their children, the Judge will award custody based on the child's best interests, not the interests of anyone else.
To determine what is in the best interests of the child, the Court will look at different things, such as:
1. The age and sex of the child;
2. The wishes of the child's parent or parents;
3. The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years old;
4. The interaction and relationship of the child with each parent, brothers and sisters, and any other person who may strongly affect the child's best interests;
5. The child's relationship to his home, school, and community; and
6. The mental and physical health of all people involved.
What does the court NOT look at in a custody case?
To determine what is in the child's best interests, the Court will generally not look at things such as:
1. A parent's sexual orientation, unless it is shown to the Court that the children are endangered or harmed by that behavior;
2. A parent's having sex outside the marriage, unless it is shown to the Court that the children are endangered or harmed by that behavior;
3. The race or ethnic background of a parent; and
4. Anything else that is "suspected" about a parent but no details about the behavior and what harm it causes the children can be provided.
What other tools will the court use to gather information?
Some tools that the Court can use to find out more information about each parent are home study reports and psychological evaluations. Home study reports may be done by the Vanderburgh County Office of Family and Children. A caseworker will go to each parent's home, inspect the home, and talk to each parent. A written report will then be given to the Court. There is currently no charge for a home study done by the Office of Family and Children for Legal Aid Society clients, but it may take months to complete. A psychological evaluation may be done by Southwestern Indiana Mental Health Center. Each parent will be interviewed and a written report will be given to the Court. Southwestern Indiana Mental Health Center charges on a sliding scale for these evaluations, and they also may take months to complete. These written reports may be seen by both parents and their attorneys, if the Court allows.
The Judge may interview each child in chambers to hear that child's wishes concerning where he or she wants to live. Neither parent is present during these interviews between the Judge and the children.
What can you do to help?
It is your responsibility to assist your attorney in preparing your custody case. You must provide your attorney with the information that he or she requests from you. You should begin keeping a record of your activities, contacts with your children, and the actions of the other parent. You can keep the record in an ordinary notebook, but do not take any pages out or put any pages in. You do not have to write about every single minute spent with your children. Just record the date that you saw them and what you did. If a conflict arises with the other parent about visitation, write down what the conflict was about and what happened. This notebook will help you remember and be able to tell the Court about the length and quality of time you have spent with your children and what problems, if any, developed.
How difficult is it to appeal a custody order?
Custody orders made by the Court are difficult to appeal. The Judge has great flexibility in deciding what facts to believe and how important each fact is. The Judge's decision can only be reversed or changed on appeal if he or she applies the law wrong, not the facts. Legal Aid Society does not do appeals. If you want to appeal the custody order made by the Court, you will have to contact a private attorney to do so. You only have a limited and short amount of time to do this, so you will need to act quickly.
What is Joint Custody?
The Court may order one parent to have sole custody of the children and the other parent to have visitation or temporary custody of the children. The Court may also order the parents to have joint legal custody of the children. "Joint legal custody" means that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training. Joint custody does not mean the parents will have equal time with the children. There will still be a primary custodian and a visitation schedule. Joint legal custody requires the parent with physical custody of the children to consult with, not get permission from, the other parent on major decisions. The parents must be able to communicate with each other for a joint custody order to work. The Court considers an agreement between the parents for joint custody to be of importance, but the fact that the parents have agreed to joint custody does not mean that the Court will order it.
What else do you need to do?
(Return to Legal Questions)
You should complete the attached questionnaire and return it to the Legal Aid Society as soon as possible. The information will assist your attorney in preparing for your case. It is your responsibility to answer the questions. We have no investigators or paralegals to put your case together for you.
1. Which parent took care of the children during the marriage or relationship?
2. Tell what each parent did for/with the child on a daily basis?
3. What are the children's daily routines?
4. Do the children attend school? If so, where?
5. In which grade is each child? How does each child perform in school?
6. What are the names of each child's teachers?
7. Who attends the children's medical appointments?
8. Who attends the children's dental appointments?
9. Who attends the children's parent-teacher conferences?
10. Who attends the children's school activities that parents are allowed to attend?
11. What are the children's interests and activities not related to school?
12. If the children were in counseling, who attended the counseling sessions?
13. Who are the children's doctors? When was the child last seen?
14. Who are the children's counselors? When was the child last seen?
15. Has the other parent met the children's teachers? If so, who? When?
16. Has the other parent met the children's doctors? If so, who? When?
17. Has the other parent met the children's counselors? If so, who? When?
18. If you were awarded custody of your children, where would they attend school?
19. If the other parent were awarded custody of your children, where would they attend school?
20. If you were awarded custody of your children, who would provide day care or babysitting services?
21. If the other parent were awarded custody of your children, who would provide day care or babysitting services?
22. If you were awarded custody of your children, where would the children sleep in your home? How many children would sleep in each room?
23. If the other parent were awarded custody of your children, where would the children sleep in that parent's home? How many children would sleep in each room?
24. Why should you have custody of your children?
25. Why should the other parent not have custody of the children?
Can you be denied visitation?
A custodial parent (parent having legal physical custody) may not deny visitation just because the non-custodial parent does not pay support. However, a parent's options in enforcing visitation rights are much better when support payments are current. A parent can file a contempt action to have the custodial parent punished for denying visitation. The custodial parent could then file a contempt action to have the non-custodial parent punished for failing to pay support.
If a parent is current in support, the parent cannot only file a contempt action, but can obtain an injunction against further interference with visitations.
What are some steps to exercise your visitation rights?
Short of Court action, there are a number of steps you can take to exercise your visitation rights.
1. Make written requests for visitation on specific dates at specific times.
2. Invite the custodial parent to propose alternative times if your requests cannot be honored.
3. Let the custodial parent know that you expect a response by a certain date.
4. Keep copies of your correspondence.
5. Send cards, letters, and gifts (but not Court ordered support) directly to your children, keeping copies of them for your records. Always pay child support through your account in the Vanderburgh County Clerk's Support Office.
6. Show up for every visitation or let the custodial parent know in advance if you will not visit.
7. Keep a diary of each effort at visitation and whether you were able to visit.
8. Be persistent, but polite. Do not give up. Do not take no for an answer, but do not be abusive.
What can happen if you do not remain in contact with your children?
It is important that the non-custodial parent make every effort to remain in contact with the children. If a parent fails to pay support for twelve (12) months, the custodial parent's new spouse can seek to adopt the children without the non-custodial parent's consent.
DEFENSE OF INFORMATION FOR CONTEMPT
What is your defense?
If an Information for Contempt is filed against you for nonsupport, nonpayment of medical bills, or nonpayment of any other matter, it is important that when you come to Court you can show the Judge that you have been unable to comply with the Court's order to pay the amount in question. You will be found in contempt if the other side can prove that you have a) earned money and willfully refused to pay, or b) that you have willfully refused to look for employment. Thus, you need to prepare specific and detailed records in writing showing that you are unable to pay and that if you are employed, you were looking for work. You may make partial payments.
In court, you should be able to show the Judge that your income has not been enough to meet your necessary expenses and that there has not been any money left over to pay the Court order.
What information must you show the judge?
Starting from the date of the Court order or the last time you were in Court, do the following:
a. Get copies of all paychecks or pay stubs or other proof of income including your tax returns for the last (2) years.
b. Make a list of all of your employers including their names, addresses, rates of pay, hours of work, length of your employment there, and why the employment ended.
c. List your unemployment, TANF, food stamps, pensions, Social Security, or other benefits you have received, including the dates you received them and the amounts.
d. List any other income, including child support or any type of financial assistance you receive, the dates, and the name of the person assisting you.
e. Make a list of the amount you spend each month for:
· housing [rent or house payment]
· utilities [electricity, water, phone, and cable]
· necessary transportation
· loan payments
· other child support payments
· medical bills
What if you've not found a job?
If you have not worked since the last Court order, or the last time you were in Court, make a list of the names and addresses of each prospective employer where you have applied for work, including the date that you applied. Also, bring cards proving that you are currently registered at the Department of Employment and Training Services, Indiana Department of Workforce Development, and the Private Industry Council offices.
Where do you pay child support?
Always pay your child support through the Vanderburgh County Clerk's Office. If you have not opened an account, go to the Support Clerk's Office located in Room 216 of the Courts Building immediately and open an account. Never pay child support directly to the children's custodian.
If you are paying on a garnishment, you will pay that through the Vanderburgh County Clerk's Office in Room 216 of the Vanderburgh County Court's Building. Before you come to Court, always go to the clerk's office and get a current printout of your payments.
(Return to Legal Questions)
It is important that you write down all of the above information. Otherwise, you may forget important details when you come to Court.
If you do not pay your child support, the Court can garnish your wages (take money out of your pay check), see to it that your car or other real or personal property is sold, attach a lien to your real estate, take your state or federal income tax refund, take lottery winnings, take a portion of your unemployment benefits, report you to the Credit Bureau, suspend your driver's license or any professional license, or place you in jail.
CHILDREN IN NEED OF SERVICES
How do you know when children are in need of Services?
A CHINS case arises when it comes to the attention of the caseworker that there was a child in need of assistance. Any person can make a report, even anonymously. A police officer, neighbor, pastor, teacher, or a stranger can make the report. Doctors and certain other people have a duty by law to report problems they observe.
A case can be filed because the caseworker thought one of the below three situations existed:
1. The children were physically or mentally in danger because of the inability, refusal, or neglect of the parent to supply food, clothing, shelter, medical care, education, or supervision.
2. The children are in mental or physical danger due to some act or failure to act of the parent.
3. The child is a victim of a sex crime or other situation that places the child at risk.
Cases can arise from things like child abuse, child molesting, children living in homes without water, utilities, or food, children missing school, children being allowed to live in unsupervised situations, children living in cars, or children living in dirty houses.
Who handles the cases?
Cases called "CHINS" (child in need of services) are filed in the Vanderburgh County Office of Family and Children.
What is the Procedure?
When the Office of Family and Children files the case, they have the power to take a child into custody, to protect the child without going to Court. A hearing must be held within forty-eight (48) hours excluding weekends and holidays. In the meantime, the child can be placed in foster care, the Hillcrest Home, with a relative, or in an appropriate institution, but not in jail.
THE PARENTS HAVE THE RIGHT TO AN ATTORNEY, IF THE PARENTS CANNOT AFFORD AN ATTORNEY, THE COURT WILL APOINT ONE FOR THEM IF THEY ASK.
Before the end of the forty-eight (48) hours, if the Office of Family and Children wishes to continue its case, a Court hearing will have to be held. The parents will be given notice of this hearing if they can be located. A written petition stating the problem will be filed. At this Court hearing, the Judge decides whether probable cause for the petition exists and whether to release the child to the parent. If there is not probable cause, the case will be dismissed and the child will be returned to the parent. The Court's concern is the safety and the protection of the child. If probable cause is found, a return Court date will be set and the child may or may not go home with the parent at that time. This decision is up to the Judge.
The next Court date is called the initial hearing. At that point, the parents will be asked to admit or deny the petition. The Judge will read the petition, define the charges, and explain the different alternatives available for disposition. If the parents admit the allegations in the petition, a dispositional report will be ordered. If the petition is denied, there will be a fact- finding hearing. This is a trial where both the Office of Family and Children and the parents can present evidence and cross examine witnesses, introduce exhibits, and introduce the reports of experts. If the Judge at the fact-finding hearing finds that the grounds for the filing of the petition are incorrect, the petition will be dismissed. The case is then over and the child is returned to the parent. If the Judge finds that the facts are true, a dispositional report is ordered, and again the child may or may not go home with the parent.
At the dispositional hearing, the Office of the Family and Children's dispositional report will be reviewed. Both parties can read it, correct it, and try to amend it or state their objection. That report will recommend a course of care. If the goal is not accomplished, the Vanderburgh County Office of Family and Children will file a petition to terminate the parental rights of the parents. The initial goal will be to reunify the family. The Court may order the parents to comply with the services offered by the Vanderburgh County Office of Family and Children within twelve (12) months including leaving the child in placement, attending parenting classes and counseling, cooperating with in home therapists, attending special educational classes, and visiting with the child. Parents should cooperate and stay in touch with the caseworker. Children will no longer remain in foster care placement for years as they did previously.
Within a short period of time following the dispositional hearing, a written contract called a parental participation agreement will be presented to the parents by the caseworker. It includes a permanent plan, the services to be provided, the short and long-term goals, and whether the child will be in placement or at home. The plan should be the least restrictive or disruptive and the most family-like solution to the problem. Parents may be required to perform and accept services and to pay for some services.
The Office of Family and Children represents the State of Indiana. Parents may have attorneys represent them. The children may be represented by a CASA (Court Appointed Special Advocate). The CASA is a volunteer who will get to know the family, make recommendations, and help with the case from the child's point of view.
The parents' cooperation and openness with the caseworker and CASA is helpful. The caseworker and CASA will first try very hard to reunite the family. They are trained in the dynamics of families and the specific problems of children. However, any statements made by parents to police officers, caseworkers, CASA representatives, and counselors may be used against them. This is especially important to remember if criminal charges may be filed such as battery, neglect, or child molestation.
If at any time a parent has any problem, disagreement or objection to the services, the parent should contact the attorney so that the attorney can tell the caseworker or the Court and try to resolve the problem. A parent should ask questions to the attorney before they act rather than afterwards. The parents should stay in touch with the attorney and tell them of any change or problem. The parents should contact their attorney before Court to review any action that needs to be taken.
After the disposition, the Court requires that the cases be reviewed. These reviews will occur every six (6) months. If changes in placement and major changes in visitation or services are necessary, other Court hearing may also be set. Both the Office of Family and Children and the parents can file petitions to be heard in Court at any time. The entire family may be involved in services, with the main point being the safety of the child.
If there appears to be a problem in the family, but not to such an extent that all of the above procedures need to be followed, an informal adjustment between the parents and the Vanderburgh Office of Family and Children can occur. A contract will be signed, and the parents agree to accept certain services while keeping the child and no CHINS case is filed. The contract can last for six (6) months and be extended for six (6) more months. If the problem is resolved, the informal adjustment will be closed.
How can parental rights be terminated?
A termination of parental rights occurs in one of two ways.
1). A parent may voluntarily terminate the parent's rights to a child if the parent realizes that he or she cannot care for the child. In some cases, it is a positive step and in the child's best interest for a parent to do this. The child will then be placed for adoption. The parents will not be allowed to determine who the adoptive parents will be. This cannot be done by one parent only so the other parent is not required to pay child support, or will not be allowed to visit.
The parents will be advised of the following rights and will have to agree to these things before the voluntary termination of parental rights occurs:
1. Termination of parental rights is best for the child.
2. The parents have knowingly and voluntarily consented to the termination of parental rights.
3. The Office of Family and Children will place the child in an appropriate setting.
4. The termination is permanent and the parents cannot change their minds.
5. All of the parental rights and duties and responsibilities between the parent and child will be gone including custody, visitation, and knowing the child's whereabouts and development.
6. The parents will not get to consent or object to the adoption.
7. The parents do have the right to keep the children if they fulfill their parental rights and duties.
8. The parents have the right to a trial to determine whether they have fulfilled their duties.
9. The parents have the right to have help in meeting their parental obligations.
10. The parents have the right to an attorney.
2.) The other form of termination occurs if a CHINS case has been filed, the child has been in placement six (6) months, many different kinds of services have been offered, and the parents have not participated in the services nor responded to the services. The Office of Family and Children can file a petition to terminate parental rights, saying that reunification is impossible and the child should be adopted, even though the parents do not agree. Under new law, the caseworker is forced to file a termination much earlier than in the past, so parents need to act quickly to regain custody. Parents will not have the amount of time and number of chances they had before. Significant progress must be made within twelve (12) months or the caseworker will file a petition to terminate the parental rights of the parents.
(Return to Legal Questions)
A preliminary hearing will be set at which time the parents will admit or deny the termination petition. If the parents deny the petition, there will be a trial at which both the Office of Family and Children and the parents will present any witnesses, exhibits, or evidence proving or disproving the petition. The Judge will then decide whether the parental rights should be terminated. The Judge's decision may be appealed. Normally, termination ends the case from the parent's viewpoint and the parent no longer has any rights regarding that child including custody or visitation. If rights are not terminated, services can continue to be provided in the CHINS case.
PROTECTIVE ORDER/RESTRAINING ORDER/NO CONTACT ORDER
What is a Protective Order/Restraining Order or No Contact Order?
A protective order/restraining order/no contact order is a legal paper designed to protect a person and their property. One must be 18 or older to file; otherwise, a parent/guardian must file on their behalf. All three terms can be used interchangeably.
A protective order bars a person or his or her agents from committing violence, directly or indirectly threatening or harassing a family or household member, or going to or near the protected person's workplace, as specifically outlined in the protective order. A knowing or intentional violation of this order is a misdemeanor. Visitation with minor children may be an exception. In a divorce, a protective order may also grant possession of a residence and personal property to a party. Read an order carefully to see what it covers.
This legal remedy may be part of a divorce action and can also be filed before the divorce is filed, when family members need Court protection, or when the people involved are not married. If planning a divorce, a protective order can be obtained while searching for representation and will be dropped once the divorce is filed. If requested, the divorce action will contain a new restraining order which will be included in one cause number with the divorce filing. The temporary restraining order will be good until the provisional hearing, and the continued restraining order will be good until your divorce is final. If protection beyond the divorce is needed, let the attorney know this before the final hearing.
Where and how do you file?
The Vanderburgh County Clerk's Office, Room 216 in the Courts Building, has protective order forms. When filling out the forms, make sure you read and understand every question before you write your answer. There is a One Hundred Dollar ($100) filing fee for obtaining a protective order. The initial filing fee is Thirty-Five Dollars ($35). You may be required to pay the balance of the fee, Sixty-Five Dollars ($65), at a later date. If you are unable to pay, ask for a pauper affidavit form. The Judge will decide if your fee will be waived. According to legislation passed into law in Indiana in 1994, filing fees for domestic violence victims may be waived. A restraining order is in force as soon as the Judge signs it or orders it. Law Enforcement will enforce it as soon as the restrained person is made aware of it.
If possible cause exists, the Judge will sign the temporary protective order. If there is a police/sheriff's report, you may bring it to show the Judge. A police report is not necessary to obtain a protective order. This will be in effect until a permanent protective order hearing takes place. You will be given a date and time for your permanent protective order hearing. This hearing makes your protective order permanent, which means it is good for one year. If you do not appear for the hearing, your protective order is dismissed. The other party is requested to appear for the hearing, but is under no obligation to appear. Usually, if service is made on the other party and that individual does not appear, your protective order will be granted. Telephone harassment is covered by a restraining order. Ask the police and phone company to help you in such a case.
You may use a restraining order to make people leave your property.
What responsibilities do you have once a protective order has been granted?
If the Court grants you a protective order, it is important that you respect it. Do not put yourself at risk by using the protective order as a tool for leverage. Do not call or visit the restrained person. This will send mixed messages and it will make it hard for the police and Courts to enforce if you, the protected person, made the contact.
If you want the person restrained from being around your children, put all the information about the children in the petition. There is a place in the order for the Judge to show whether Court ordered visits with the children are allowed.
If you go to a public place and see the restrained person, LEAVE, regardless of who was there first. Sometimes if the police come, both parties may be arrested.
If the restrained person is allowed to visit the children by the Court, you must allow visits as they are ordered in the divorce or paternity action. If you wish to restrict visits, you must file that request in the divorce or paternity Court. If the restrained person does not comply, you must report the violation to the police or sheriff immediately. You should follow up by going to the Prosecutor's Office to press charges.
If you decide you no longer need or want a protective order, you must contact the Judge immediately to get it dismissed.
Civil and criminal penalties for violating a restraining order include jail time, fines, and community service. Repeat criminal convictions carry heavier penalties.
What are some things you need to remember?
(Return to Legal Questions)
· Understand that your protective order is a paper document; don't put all of your faith in its protection. Think safety.
· Report every incident.
· Be where there is a phone so you can call for help.
· If there is no arrest at the time of the incident, a law enforcement officer should complete an incident report. Get the officer's name. Remember the date and time.
· Keep your restraining order with you at all times.
· Don't invite the restrained person over to talk or to get things unless a date has been pre-arranged by the Court, you have had the protective order dismissed, or the police will be there to supervise.
· Use an answering machine to screen your calls.
· Let your neighbors/landlord know your situation if possible.
· Keep emergency numbers handy.
SMALL CLAIMS COURT
What is Small Claims Court?
Small Claims is an informal Court where a person can sue with or without an attorney for any amount less than Three Thousand Dollars ($3,000). The Small Claims Court may be used to resolve problems such as:
a) you have paid for something that does not work or does not arrive,
b) an employer does not pay you the wages you are owed,
c) you cannot get a security deposit back,
d) your property is being illegally held by a landlord or someone else, or
e) you or your property have been injured.
Where is Small Claims Court?
In Vanderburgh County, Small Claims Court is a division of the Superior Court. Small Claims Court is located in Room 223 on the second floor of the Courts Building.
How do you file?
You may use Small Claims Court in the county where the transaction or problem took place, or where the person you are suing lives. You must fill out a Notice of Claim at the County Clerk’s Office, Room 216. To fill this out, y ou will need to know the exact name, address, and telephone number of the person you are suing. If a contract or lease is involved, and you have a copy, bring it with you. If you have any trouble filling out the form, ask the Clerk to help you.
What are the filing fees?
You will need Thirty-Five Dollars ($35) for the filing fee, which should be in the form of a money order made out to the Vanderburgh County Clerk of the Courts. If you do not have the Thirty-Five Dollars ($35), tell the Clerk. The Clerk will then give you papers and send you to talk to a Judge. The Judge can waive the filing fee.
Do you need an attorney?
You do not need an attorney to file in Small Claims Court, but if the case is complicated or the amount you are suing for is large, it is often a good idea to seek an attorney. If you want a jury, you should seek an attorney.
When are the court hearings?
In Vanderburgh County, there are two Court hearings. The first hearing gives the other side a chance to appear to admit or deny the claim. If the claim is denied, the case will be set for trial at some date in the future.
Must you be in attendance?
If you filed the case and are not present at the date of the first Court hearing, the case will be dismissed. If you are the one being sued and are not present at the date of the Court hearing, you will lose by default. If you cannot go to Court on the date set, you should ask the Court several days ahead of time for another date. This is called a continuance. A continuance request should be in writing.
What are counterclaims?
If the person you sue believes he has a claim against you arising out of the same transaction or incident for which you sued him, he can file what is called a counterclaim against you and both his claim and your claims will be decided at the same time.
What if you settle out of court?
If you settle the matter with the person you are suing before trial, put your agreement in writing. Both sides should sign the agreement, date it, and file it with the Court. Then the Court can order the party to follow the agreement later on.
What if your case goes to trial?
Bring witnesses and any other evidence you might have on the date of the trial. If your witnesses do not want to come, you can have the Court order them to come by issuing a subpoena. You will have to have the correct address to have a subpoena issued. Contact the Court about this as soon as possible.
At the hearing, you can tell your side of the story. There are no technical or formal rules to follow. The Judge may make a decision immediately or may do it later, in which event the case is taken under advisement. If you win, the other side must usually pay or reimburse your Thirty-Five Dollars ($35) filing fee and any other Court costs of the action.
What if you sue and win?
You must give the losing party a reasonable time to pay. If you do not receive the money awarded to you by the Judge, you must come to Court again so that the judgment can be collected. Ask your Court Clerk how this may be done. If the Judge ordered the other person to return property to you, be sure to ask the Court to issue a “Writ of Replevin” to the person. You must make arrangements to pick up the property.
What if there is an appeal?
(Return to Legal Questions)
Either side can appeal the case by filing an appeal. Technical rules and short time limits apply. Appeals can be complicated and often require the assistance of an attorney. The Legal Aid Society does not file appeals.
How can you get evicted?
Your landlord may evict you peacefully without going to Court by asking you to leave or giving you written notice to leave by a certain time. You may agree to do so. You might save money by doing this. Your landlord can charge you for every day that you remain in the property, and will charge you for attorney's fees, if your lease allows for this, and Court costs if he has to take you to Court.
If peaceful eviction is not possible, your landlord may file a lawsuit against you in Small Claims Court to evict you. If you have damaged the property, broken the lease, or are behind in the rent, no notice needs to be given to you before the lawsuit is filed.
What can you do if you get an eviction notice?
When you are served with a notice of eviction or ejection, go to small claims Court, Room 223 of the Courts Building, at the date and time that is printed on your eviction papers. At the first hearing, the Court will decide if you must leave. If you do have to leave, the Court will issue an immediate writ of possession. This is a Court order requiring you to move. The Sheriff will serve a copy of the writ of possession at your residence. Forty-eight (48) hours or two (2) days later, the Sheriff may physically remove you and your property. The landlord should place your property in storage and hold it ninety (90) days and may then dispose of it. It is very important that once the writ of possession is issued, you leave the property and take all of your belongings with you within forty-eight (48) hours. The date you must be out will be on the back of the paper you are served.
It is illegal for your landlord to change your locks, shut off your utilities, or keep your possessions, without going to Court first.
A second hearing, called the rent and damage hearing, will be scheduled at the first hearing in small claims Court. It is very important that you appear at this second hearing and tell your story. This is the hearing at which the Court will decide whether you owe the landlord. If you want to collect money from your landlord for damages, loss of property, or a return of your security deposit, you should to the Vanderburgh Superior Court Clerk's Office, Room 216 of the Courts Building, and file a counterclaim in the same case immediately after the first hearing. Take the complaint that was filed against you along with you.
What if you want to collect from the landlord?
When you come to Court for the rent and damage hearing, bring receipts of all the monies you have paid, a list of any properties missing, and pictures of the problems and defects in the unit. Also, bring any witnesses who can testify to verbal agreements, work that was done, and defects that were in the unit. Witnesses who will not come voluntarily can be subpoenaed. This needs to be done immediately after the first hearing. Letters that are signed and dated may also be used.
The rules may be different regarding public housing or federally subsidized housing.
What should you know next time? (Renting-knowing better next time)
Before moving into a house or apartment, inspect it and ask questions. Check the appliances, bathroom and kitchen fixtures, and plumbing. Check the water supply, hot water, air conditioning, and furnace. See that everything is in working order. Ask what the normal amount of the utility bills will be and who will pay them. Check to see if the unit is clean, air tight, and does not leak. Check for insects and rodents, and ask if it has been inspected by a professional. Make sure that the unit is big enough for your family and close enough to the grocery, schools, and bus stops, and that you can afford it and follow the rules. Check the neighborhood and the traffic. Talk to the neighbors and see how they like it. The Community Action Program of Evansville, the Evansville Housing Authority, and the Building Commission may have ideas to help you find good housing and a good landlord.
Make sure you want the apartment before you put down a deposit. You may not be able to get the money back.
What should you look for in a lease?
A lease is a contract entered into between you and your landlord. It may be written or verbal. You and your landlord will have to follow the terms of your agreement. The terms are easier to prove if they are in writing. The terms of a written lease should include the amount of rent you are to pay and how long you can or must stay. A verbal lease will be considered a month-to-month lease if you pay your rent on a month-to-month basis. Read and understand a lease before you sign it. Failing to read or understand a lease is not a defense if you signed it. If the lease does not reflect your agreement, do not sign it. Make sure all blank spaces are filled in and demand and keep a signed copy for your records. A lease should contain the name of the landlord and tenant, the address of the property rented and the landlord's address and p hone number, the monthly rent, when it is due, whether there are late charges, the length of the lease, the amount of the deposit and what to do to get it refunded, who is responsible for maintenance, who pays the utilities, whose name the utilities are in, and any other promises that the landlord may make. The lease should answer these questions: Can the rent be raised? Can you sublet? Can you renew the agreement? Are minor changes and improvements allowed? Are pets allowed?
Pay your rent on time and always get a signed and dated receipt. Check the receipt immediately to see if it is correct. If you are behind in your rent and have little or no income, contact your township trustee for a referral to agencies that might help you with rent money.
What if conditions are unreasonable?
You as the tenant have the right to enjoy the unit without being unreasonably disturbed by the landlord. You also have the right to live in a unit that is safe and sound, well heated, properly wired for electricity, and with a proper water supply and plumbing. If these conditions are not met, contact your landlord and ask that repairs be done. Write your landlord a letter about the repairs and keep a copy. Your landlord must make repairs within a reasonable time. If the landlord says that you can make the repairs, get an agreement in writing specifying who will pay for what. You may also call the Building Commission, Code Enforcement Department, or Health Department if conditions are not safe and not livable. Do not withhold your rent unless you are willing to have the landlord take steps to evict you. Indiana does not allow what is called "repair and deduct" or rent withholding, and doing so may cause you to be evicted.
The landlord or his agent may enter the unit to perform routine inspections and make improvements and repairs upon prior reasonable notice.
How do you get your deposit back?
(Return to Legal Questions)
When you want to move out, read and follow the terms in your lease. If you have no lease or it has expired, you must give notice in writing to your landlord at least one rental period in advance. When the landlord wants you to move out, the landlord must give you the same notice as long as your rent is paid up. When you move, do not forget to take all of your possessions, leaving the unit in the same condition it was when you occupied it except for reasonable wear and tear, and return the keys. You will be charged rent until you have done all of these things.
Your security deposit covers any damages that might occur to the landlord's property while you lived there. Get a receipt for your deposit. You may want to meet your landlord and get him or her to inspect the unit once before you move in and once after you move out. Each time you should list all of the problems that were observed. Take pictures if possible.
Once you have moved out and notified your landlord in writing of your new address, your landlord has 45 days to return your deposit, file a small claims suit, or give you an itemized list in writing showing where your deposit was applied and why it was not returned. If your landlord does not do this, you may sue your landlord in Small Claims Court for the return of the security deposit.
What is a Complaint in Proceedings Supplemental?
After someone has sued you and gotten a judgment against you, they may file and you may be served with what is called a “Complaint in Proceedings Supplemental”.
This consists of a Court hearing at which the Judge will decide if you have any income which can be given to the person who sued you and won.
If served with such papers, you are ordered to go to Court on the day and at the time of the hearing. If you do not go to Court, a bench warrant for your arrest may be issued. If you find out that you have missed a Court date, you need to call the Court or the attorney representing the party who has a judgment against you and ask that a new Court date be set.
At the hearing, the Court and the attorney or the individual on the other side will ask you about your current income. You should be able to answer their questions. To do so, bring with you to Court proof of any income that you have, such as your pay stubs, your tax return, or proof of public assistance. The Court will use this information to decide whether you have any income that can be garnished or taken from you by the Court to pay the other party.
Your wages, commissions, money paid to you for rent, and interest and dividends may be considered for garnishment to pay the debt. Your unemployment, Social Security, TANF, or other benefits cannot be garnished.
How does the Court figure how much you owe?
The Court will use a complicated formula to determine if you have enough earnings to be garnished. If your income after taxes is less than One-Hundred-Fifty-Four Dollars ($154) per week, you do not make enough for the Court to garnish your wages based on minimum wage of $5.15 per hour or $206 for forty (40) hours. If you make more than One-Hundred-Fifty-Four Dollars and Fifty Cents ($154.50) per week after taxes, the Court can garnish all of your income over One-Hundred-Fifty-Four Dollars and Fifty Cents ($154.50) per week, but no more than one-fourth (1/4) of your weekly income. The judgment against you will bear interest at the rate of 8% per year on the unpaid balance.
EXAMPLE: If your weekly gross income is $200.00 but your income after taxes is $160.00, the garnishment formula is: either ¼ of $160.00 ($40), or all you make over $154.50. Thus, you would be garnished $5.50 per week as it is the lower amount.
If you are working, the Court may summons your employer to Court and order your employer to take the money directly out of your paycheck and send it in to the Court. Your employer may not fire you simply because your wages are being garnished.
If you have no employer, the Court may enter a “personal order of garnishment” directing you to pay directly to the Court some amount of the money.
You cannot be forced to pay any more than the garnishment formula outlined above.
Can you go to jail if you don't pay?
(Return to Legal Questions)
You may not be put in jail or fined by the Court simply because you do not have any income with which to pay the garnishment. You may be punished if you have received a garnishment order and make earnings in excess of One-Hundred-Fifty-Four Dollars and Fifty Cents ($154.50) per week and refused to pay. If you do not come to Court, a writ or bench warrant may be issued for your arrest. Therefore, you must never ignore Court papers.
If you are threatened with jail or punishment, seek an attorney to help you.