Thursday, May 1, 2008

Following Up on ""Parenting time - Right of First Refusal"

I want to highlight a comment made to my post Parenting time - Right of First Refusal. The commentator kindly gave up the citation to Shelton v. Shelton: 835 N.E.2d 513 (2005). Those without access to the West Reporters can find the Court of Appeals opinion here and the Indiana Supreme Court's opinion here.

I must admit that I overlooked this case when I wrote my earlier post. (As an aside: be careful formulating searches on the online archive for Indiana's appellate opinions.) Shelton does define the "and other family member" of Changes In Scheduled Parenting Time. I feel I must also confess to writing in what was a bit of bad temper directed at the Indiana Parenting Time Guidelines. More on that in a minute.

First, the Court of Appeals' Shelton decision reasons out the meaning of "other family member" in this way:

..."family member" is ordinarily- inclusive of relations such as grandparents or stepparents. However, the Indiana Parenting Time Guidelines impose a preference for parental childcare, founded "on the premise that it is usually in a child's best interest to have frequent, meaningful and continuing contact with each parent." Parenting Time C.. Preamble. This principle pervades the guidelines, and is apparent In the rationale of section I(C)(3): the parent without physical custody is given the opportunity for additional parenting time when the custodial parent is regularly unavailable. The practical outgrowth of this, included in the section's language, is that the best interests of the child are also served by extending the parental childcare preference to responsible family members within the custodial parent's household, also the child's household. As a result, the definition most appropriate under the rationale of section I(C)(3) is that "family member" must he limited to a person within the same household as the parent with physical custody.
(The online opinion at 7 and without two footnotes).

Which should clear up any confusion I created about "family members" but Shelton only emphasizes the annoyance underlying my earlier post. For the record, the advice given to the client reached the same conclusion as Shelton.

Frankly, I wrote my earlier post in a bit of of bad temper directed at The Guidelines. My annoyance comes from the belief that the parents are to be able to use The Parenting Time Guidelines without intervention from lawyers or courts. Call it a Protestant model for a direct connection between parents and Guidelines. I have had too many calls from too many clients and potential clients, people not lacking in intelligence or common sense, who find themselves confused by the language of the The Guidelines. The issue of "other family members" ought not have been determined by an appeal to the Indiana Court of Appeals and then the Indiana Supreme Court. Simply defining the term in The Guidelines ought to have avoided the litigation
with the costs of money and stress involved with trial and appeal. Let me put this in another way. If The Guidelines' purpose to benefit the child, then how did the Shelton's child benefit from all this fighting over three words.

Starting next week, I intend to start taking The Guidelines apart on this blog.

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