Saturday, February 17, 2007

Modifying the Decree: Parenting Time (Visitation)

As with other matters relating to children, the law allows for changes over time. Compared with child support and custody, Indiana law has rather narrow grounds for modifying parenting time. As with everything else regarding the child, the child's best interest rule applies to parenting time. A parent moving out of the area is grounds for modification. Otherwise, restricting parenting time means showing the court "that the parenting time might endanger the child's physical health or significantly impair the child's emotional development."

And this is definitely not a place for self-help. I define self-help as deciding on your own that the child does not need to go on visitation or allowing the child to refuse to go on visitation. Both are grounds for contempt. Which can mean jail for the custodial parent.

If visitation presents a danger to the child, then the custodial parent must contact an attorney and file a Petition to Modify Visitation. I write that assuming that the parties have followed Parenting Time Guideline I. E.1:

Disagreements Generally. When a disagreement occurs regarding parenting time and the requirements of these Guidelines, both parents shall make every effort to discuss options, including mediation, in an attempt to resolve the dispute before going to court.
Notice I.E. 2. requires mediation unless otherwise ordered by the court. I find that courts in my area will otherwise order and allow the parties to escape the cost of a mediator.

After filing the Petition to Modify Visitation, the matter is heard by the court. The judge makes a decision. Generally, there ends the matter unless there are grounds and support from the client for an appeal.

A point that I think could be made here concerns the custodial parent. In the past two years, i have had three cases involving parenting time and with almost entirely similar personalities. I use "personalities" because those personalities determined the facts. I had the non-custodial parent in two of those cases and won both of those cases. In those cases, the custodial parents shared an obstinate disdain for the Parenting Time Guidelines over a period of a year or more. One mother told my client that she did not care what the Guidelines said, she was not going to do it unless a judge told her to do so. (Yes, she had counsel. In all three cases all the parties had attorneys. Someone with a more philosophical bent might ponder if the drafters of the Parenting Time Guidelines overestimated the intelligence of our citizens.) I lost with my custodial parent. She was concerned about a dog that bit the child, they could not just talk to one another, and in the end I think her resentment towards the father hurt us. Summing up, be certain about the motives of the custodial parent in seeking a modification. If the custodial parent comes across as trying to use visitation to harass or needle the non-custodial parent, I think the judge will take a dim view of the case.

Relocation presents its own problems but also is a bit simpler. Instead of showing possible harm to the child, the only thing needed shown is the fact of relocation. True, relocation may trigger a modification of custody but that depends on the facts of each case. I suggest you read my earlier post on relocation. I think I should point out that the Parenting Time Guidelines have not been updated to reflect the changes in the relocation statute. However, there good advice still resides in the following:
4. Relocation. When either parent considers a change of residence, reasonable advance notice of the intent to move shall be provided to the other parent so they can discuss necessary changes in the parenting schedule as well as the allocation of transportation costs in exercising parenting time which may result from the move.


1. Impact Of Move. Parents should recognize the impact that a change of residence may have on a child and on the established parenting time. The welfare of the child should be a priority in making the decision to move.

2. Indiana Law. Indiana law (Ind. Code § 31-14-13-10 and Ind. Code § 31-17-2-23) require that if a custodial parent intends to move outside Indiana, or more than one hundred (100) miles from the individual’s county of residence, a notice of intent to move must be filed with the clerk of the court that issued the custody order, and a copy of the notice must be sent to the other parent.


Anonymous said...

Thank you for the time you take in publishing this blog. It has been very helpful as I research the law in Indiana regarding custody modifications.

I am interested in knowing under what circumstances the court will consider supervised visitation appropriate, specifically in regard to mental illnesses, verbal threats of homicide (not of the children, but of former spouses and strangers), and written journals in which a non-custodial parent expresses a desire to kill people. If this is too specific, general information would be appreciated.

Thank you again for publishing this blog. It's very informative.

Sam Hasler said...

I thank you for your complimenting the blog.

As you have been reading it, you have seen my disclaimer about not giving advice on specific cases. You give another good example of the problems of not talking to a lawyer. You omit a very important fact.

Between visitation in paternity cases and divorce cases there exists a difference in the law on when the court can restrict visitation. I have written on this - the archives are on the right hand side of the blog and go by topics. Do check them out.

After that it becomes an question of evidence - what is relevant and admissible.