Sunday, November 25, 2007

Paternity and modifying visitation - Part 2

I wrote about the difference between modifying visitation in a divorce case and a paternity case here. Taylor v. Buehler, 694 N.E.2d 1156, 1159-60 (Ind.App.,1998) interpreted the statute controlling visitation modification for paternity cases as follows:

Therefore, modifying visitation orders under the paternity statutes only require a showing that the modification would serve the best interests of the child. See Matter of Paternity of A.R.R (1994) Ind.App., 634 N.E.2d 786, 789. There may be policy reasons which led our General Assembly to create more stringent considerations for dissolution modification of visitation than for paternity visitation, but we have not been apprised of those reasons. Nor do we have the benefit of a legislative history to aid us. Nevertheless, it is clear the legislature intended that the two circumstances be treated differently. (footnote omitted) The distinction makes a modification of paternity visitation more readily available than modification of dissolution visitation in that the paternity provision looks only to the best interests of the child, while dissolution visitation looks not only to the best interests, but requires a determination of changed circumstance. In any event, we are not at liberty to rewrite the statute to meet our own implementation of what we might deem to be wise and consistent policy considerations.
I must admit that I find it difficult imagining a case where something has not changed leading to a difference in what is the child's best interests. In Taylor, it was the child starting school.
In its Order on Petition to Modify, the trial court found that:
“[M.T.] has begun attending school, [and] the present visitation from 6:00 p.m. on Thursday to noon on Sunday is disruptive to her school scheduling .... that interruption of week-day routine can only be detrimental to [M.T.]. Further, it is not fair to [M.T.] or to her mother to have every week-end spent away from her mother.” Record at 280.
What seems a better view of Taylor is that if the case is a paternity one, then one need not show the non-custodial parent may pose a physical or emotional danger to the child. That the statute does not require a showing of changed circumstances applies to how often one can modify the visitation.

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