Monday, November 24, 2008

Indiana, PAS and Interfering With Visitation; Part 1

Ah, the post I meant to write instead of oops: PAS, Ohio & Indiana.

The Ohio Family Law Blog's What Is Parental Alienation And Parental Alienation Syndrome? mentioned the following Ohio law:

There are a number of different factors and circumstances that have an effect on the determination of custody in Ohio. According to O.R.C. §3109.04(F)(1), the court must consider all relevant factors when determining the best interest of the child. One of those relevant factors under Section 3109.04 (F)(1)(I) includes whether either parent has continuously and willfully denied the other parent’s right to parenting time or visitation as ordered by a court. While visitation denials may be relatively easy to prove in court, that alone doesn’t amount to parental alienation. Further, it is not uncommon for some amount of alienation to occur when parents first separate.
I do not think Indiana has a statute so much on point as does Ohio:
Indiana Code 31-14-8: Custody modification proceeding; violation of injunction or temporary restraining order as factor
An intentional violation by a custodial parent of an injunction or a temporary restraining order issued under IC 31-14-15 (or IC 31-6-6.1-12.1 before its repeal) may be considered a relevant factor under section 2 of this chapter that the court must consider in a proceeding for a custody modification under this chapter. As added by P.L.1-1997, SEC.6."
The statute about injunctions follows and take note of (2):
IC 31-14-15-1
Parenting time rights; permanent injunction against custodial parent
Sec. 1. A noncustodial parent who:
(1) has been granted parenting time rights with a child who lives with the custodial parent;
(2) regularly pays support ordered by a court for the child; and
(3) is barred by a custodial parent from exercising parenting time rights ordered for the noncustodial parent and the child;
may file, in the court that has jurisdiction over the paternity action, an application for an injunction against the custodial parent under Rule 65 of the Indiana Rules of Trial Procedure.
As for the "relevant factor under section 2 of this chapter", that refers to the following statute:
IC 31-14-13-2
Factors of custody determination
Sec. 2. The court shall determine custody in accordance with the best interests of the child. In determining the child's best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parents;
(B) the child's siblings; and
(C) any other person who may significantly affect the child's best interest.
(5) The child's adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.
No, I do not think our statutes make the explicit, clean statement as does Ohio's statute. Yet statutes are not the sole resource we have. Part Two will deal with our common law (judge made law) on the subject of interfering with visitation as a basis for change of custody.

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