by: Julie Andrews, Attorney
Most court proceedings and the related files are open to the public. Only a handful of cases are shrouded in confidentiality. The most common confidential cases are Guardianship cases, Adoptions, Protective Orders (the named Defendant is not confidential), Juvenile Proceedings and, until July 1st, Paternity cases.
Paternity cases have historically been kept confidential due to the stigma surrounding out-of-wedlock pregnancies. Take for example the following excerpts from Indiana Cases:
“This was a prosecution for bastardy……On the trial, the State gave the bastard child in evidence so that the jury might compare it with the defendant…” Risk v. The State, 19 IN 152 (Ind Sup Ct. 1862).
“Instruction No. 5 given by the court is as follows: “if you find from the preponderance of all the evidence that the relatrix, Mettie M. Keith, has been delivered of a bastard child,….,Jacob Rinehart, is the father of such bastard child it would make no difference how immoral the relatrix has been, or what act of intercourse she has had with other men, as the purpose of this suit is to determine the paternity of such bastard child…” Rinehart v. State, 55 NE 504, 506 (Ind. Ct. App. 1899).
The twenty-first century opinions on out-of-wedlock births have changed dramatically as the prevalence of children born to unwed parents increases and more couples are even consciously choosing to reproduce without a marriage certificate. Right or wrong, having children out-of-wedlock as opposed to during a marriage is inching toward being the rule; not the exception.
New paternity case filings rival new divorce filings in Marion County. In 2012 there were 4,623 divorce filings and 4,071 paternity filings. Statewide, there were a reported 36,663 new divorce filings and 21,313 new paternity filings (FN1). According to the estimated new filings for 2013 (FN2), Marion County estimates 4,994 divorce filings and 5,240 paternity filings. Statewide, the estimate is 35,102 for new divorce filings and 18,626 new paternity filings.
New Divorce Filings
New Paternity Filings
Below is a table illustrating the new divorce and paternity filings in the ‘donut’ counties for 2012:
New Divorce Filings
New Paternity Filings
The law is now catching up with society’s acceptance of out-of-wedlock births. Beginning July 1, 2014, paternity records in Indiana will no longer be confidential. They will be treated like other non-confidential civil records. Public Law 1-2014 amends Administrative Rule 9 giving the public access to paternity records. (FN3) Case records created prior to July 1, 2014 will remain confidential and protected from the public (FN4). Certain information will remain confidential such as social security numbers, bank account numbers and medical records, all of which is governed by administrative procedures for all civil cases.
What this means is that anyone can conduct a search of paternity matters on public chronological case summaries (CCS). From a practitioner’s standpoint, this is welcome news! The Indiana Trial Rules are replete with instructions referring to the CCS for calculating time limits and deadlines and if there is a dispute in such a matter, the CCS is the controlling and official record. Attorneys have a duty to frequently check the CCS on all of their cases. So, we frequently scratched our heads and rhetorically asked ourselves “how can the CCS be an ‘official record’ yet we attorneys are blocked from searching it?”
In the past, attorneys were not permitted access to a physical file in paternity matters unless they entered an appearance. This put an attorney in an extremely vulnerable predicament as the attorney would be forced to enter an appearance without a clear understanding of the procedural history and pending hearings or deadlines. Attorneys have to rely on clients for pertinent information; and many times, clients do not have a clear understanding of these matters. With an appearance on file, the attorney can physically go to the courthouse and review a file. This is convenient only as to the courthouse that is closest to the attorney’s office. It is cost prohibitive to the client, if an attorney has cases in multiple counties.
Also, there are jurisdictional and venue issues associated with paternity matters and not having access to paternity cases which already existed created hardships. For example, grandparents often seek guardianship over their grandchildren. In a guardianship action, the petitioner (and attorney) has to advise the court that no other actions exist regarding the child at issue. Since access to search paternity court filings on a specific child were blocked, the petition was inaccurate regarding whether other matters were pending or even filed. Therefore, if a petition is filed and it is later discovered that another county or court had superior authority to hear issues regarding the child at issue, additional motions are required to transfer the case. This creates additional attorney fees and delay in a resolution, which does not necessarily serve the best interest of the child at issue and causes client frustration.
Many orders have time deadlines for objections and responsive pleadings, for example. If an attorney is not timely served with a filing, there is no way to know the clock is ticking on a deadline without traveling to the Court to review the physical file, as information is not given over the phone. Some paternity courts became so strict on gatekeeper procedures, that an attorney’s assistant or runner was not permitted to even pick up pleadings or speak with court staff without the attorney of record first filing a written notice delineating who would be calling or coming for a document and that person’s relationship to the case. While understandable to maintain confidentially, this procedure created unnecessary work, filings and delay.
Everything changes. With the changing and accepting attitudes toward out-of-wedlock births, the law is also changing which benefits litigants and increases court efficiency. Contact us now for a free consultation.
FN2: This number is not considered “official” until reported by the court administrator in an official report which has not yet been published.
FN3: This change only speaks to access to records, not to the actual proceedings