Enforcing Custody or Parenting Time: A Surety Bond

Amongst the more obscure parts of the Indiana Code on Family Law is IC 31-17-3.5. This section possesses the austere title of "Security to Secure Custody and Parenting Time Orders". I have never seen this remedy used and I have not had what I would consider a proper opportunity for its use.

The statute has all the virtues of simplicity. It sets out the language for a surety bond, that the bond is to be from a commercial surety or a freeholder of real estate, and defines the uses for the bond upon forfeiture.

I had two cases in the past few years involving visitation where I looked at this statute. We repeatedly file contempt citations against the custodial parent for violating the Parenting Time Guidelines. Both cases had the custodial parent would switch visitation without make up time. So much for our self-enforcing Parenting Time Guidelines. I paused but did not stop at this remedy.

Why did I not think this statute offered any help to my clients? Neither custodial parent owned any real estate and neither was employed. In short, the offending party lacked the ability to obtain a bond.

Still, I wonder if this statute might offer some solution to the more problematic visitation problems. The statute itself gives a hint towards the problems sought to be solved in how the proceeds from the bond are to be disbursed:

(1) reimburse the nonviolating party for actual costs or damages incurred in upholding the court's order;
(2) locate and return the child to the residence as set forth in the court's order; or
(3) reimburse reasonable fees and court costs to the court appointed trustee.

I hear an echo here of IC 35-42-3-4, which is felonious Interfering with Custody. That statute has the following provision:

(e)If a person is convicted of an offense under this section, a court may impose against the defendant reasonable costs incurred by a parent or guardian of the child because of the taking, detention, or concealment of the child.

Which leads to the question, why use the bond statute when there is a criminal statute? Well, the bond statute seeks to prevent the need for a criminal court to impose the costs of IC 35-42-3-4(e).

Where I can see the bond being used defensively are a very limited number of cases. First, we need grounds for the bond - a parent who creates problems with visitation. Second, the problem parent needs the wherewithal to pay for a bond. I would also add a third, more ethereal, item but not as a requirement. I would prefer a non-custodial parent who will find the bond a deterrent to bad behavior. Unfortunately, I can easily imagine the scenario where a bond is in effect and the non-custodial parent remains undeterred from interfering with custody.

Purchasing the bond bothers me. I can think of a situation where, if the issue arises during a divorce, marital assets could be assigned for purchase of a bond.

I can also imagine where this statute could be used offensively. I presume this upon having an amendable client with the funds to purchase the bond. We still need the bad behavior of the other parent regarding visitation. When the problem parent misbehaves the bond will be in place as sort of an insurance policy.

Meanwhile, the statue does moulder a bit as an interesting curiosity. It does seem to hold out the hope that economics might force rational behavior. I may be feeling especially cynical this evening but as most of us who do practice family law, rationality can be a scarcity in these cases.