Wednesday, May 14, 2008

Examining Indiana's Parenting Time Guidelines: The Preamble

A little behind schedule but here is the start to my previously promised examination of Indiana's Parenting Time Guidelines. I am going to quote only portions of The Parenting Time Guidelines and add my comments as I go along. Please remember that my comments that do not quote case law are only opinion and not authoritative.

I would ask that if you have anything to say about any experiences with the Indiana Parenting Time Guidelines that you use the Comments function below. It may be a benefit to others.

Let us begin at the beginning, the Preamble. Being the Preamble, this where the Domestic Relations Committee of the Judicial Conference of Indiana tries to give a general overview of the Guidelines. The Committee states the premise of the Guidelines:

The Indiana Parenting Time Guidelines are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child. The Guidelines also acknowledge that scheduling parenting time is more difficult when separate households are involved and requires persistent effort and communication between parents to promote the best interest of the children involved.
Here is a point that we often forget - my emphasis and not the Committee's:
The purpose of these guidelines is to provide a model which may be adjusted depending upon the unique needs and circumstances of each family.
The Committee used the term guidelines and they meant them. That all the participants treat them as more than mere guidelines evidences either the quality of the Guidelines or the laziness of the participants. I noticed this recently in how we treat visitation in a paternity case as we would in a divorce case even though a difference exists in the statutes (see my Paternity and modifying visitation - Part 2). The Committee expands on its vision of how to use the Guidelines:
....Parents should consider these needs as they negotiate parenting time. They should be flexible and create a parenting time agreement which addresses the unique needs of the child and their circumstances. The Indiana Parenting Time Guidelines are designed to assist parents and courts in the development of plans and represent the minimum time a parent should have to maintain frequent, meaningful, and continuing contact with a child.
The Committee explains how they developed the Guidelines:
The members of the Domestic Relations Committee of the Judicial Conference of Indiana developed the guidelines after reviewing the current and relevant literature concerning visitation, the visitation guidelines of other geographic areas, and the input of child development experts and family law practitioners. Committee members also relied upon data from surveys of judges, attorneys, and mental health professionals who work with children, reviews of court files, and a public hearing.
The Committee added comments to The Preamble. The Preamble's third commentary explains how to use the commentary:
Purpose of Commentary Following Rule. Throughout these Guidelines many of the rules are followed by a commentary further explaining the rule or setting forth the child centered philosophy behind the rule. The commentary is not an enforceable rule but provides guidance in applying the rule.
Lawyers know this but civilians probably do not. If the parents are supposed to use the Guidelines without professional intervention, I would think this comment would have been first.

I have some remarks on the first comment:
1. Use of Term “Parenting Time.” Throughout these Guidelines the words “parenting time” have been used instead of the word “visitation” so as to emphasize the importance of the time a parent spend with a child. The concept that a non-custodial parent “visits” with a child does not convey the reality of the continuing parent-child relationship.
I think this comment shows a great deal of optimism on the Committee's part and a rather stunted description of parenting time. The optimism comes from the Committee's belief that by ordaining the term "parenting time" that all use of "visitation" will disappear. It did not happen when dissolution of marriage replaced divorce. It has not happened with visitation. I see their ordination of term "parenting time" as causing a stunted view of parenting time. I see the Guidelines as providing for visitation and more and that combination is parenting time.

I have already noted above the Committee's idea that the Guidelines are a start and not the end of parenting time. Too bad they did not make the second comment part of the Preamble:
2. Minimum Time Concept. The concept that these Guidelines represent the minimum time a non-custodial parent should spend with a child should not be interpreted as a limitation of time imposed by the court. They are not meant to foreclose the parents from agreeing to, or the court from granting, such additional or reduced parenting time as may be reasonable in any given case. In addressing all parenting time issues, both parents should exercise sensibility, flexibility and reasonableness.
I emphasize that last sentence. I suggest to all parents with parenting time problems to consider if they or the other side have exercised "sensibility, flexibility and reasonableness."

If you want to read my previous articles on parenting time, just click the link below next to word Label. If you need an attorney for a parenting time case, give me a call.

My next article examines the interplay between the statutory parenting time and the Guidelines and then back to the Guidelines for its next section, Scope of Application.

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