Monday, August 24, 2009

News: Indiana Court of Appeals Has a New Visitation Case

From The Indiana Lawyer, COA rules on parenting time restriction

Judge Terry Crone wrote in his dissent that Indiana Code Section 31-14-14-1 requires the trial court to enter findings only when it denies any parenting time to the noncustodial parent. Judges Elaine Brown and Melissa May interpreted that statute to require a court to make a specific finding of physical endangerment or emotional impairment before restricting a noncustodial parent's visitation.

"To equate reasonable parenting time with the full panoply of visitation rights pursuant to the Parenting Time Guidelines and to allow a deviation therefrom only in situations where there is child endangerment would severely limit a trial court's ability to fashion a visitation schedule that best suits the situation of the parents involved. Such a result would be ill advised," wrote Judge Crone.

In T.W. v. S.N. III, No. 49A05-0903-CV-138, mother T.W. appealed the trial court's grant of a petition to modify child custody granting father S.N. III physical custody of their teenage son. She also argued the trial court abused its discretion by limiting her parenting time. The trial court found it would be in the best interests of the son to live with his father in Indianapolis, and the Court of Appeals unanimously agreed.

But Judges Brown and May agreed with the mother regarding the parenting time limitations and remanded for the court to either enter an order containing sufficient findings to support a visitation restriction or enter an order that doesn't contain a visitation restriction. After granting physical custody of their son to his father, the trial court ordered T.W. to have parenting time pursuant to the Indiana Parenting Time Guidelines, with the exception she only have one weekend a month of parenting time.

The majority found the restriction to be an error because the trial court didn't release a finding that a restriction was warranted. Using Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003), the majority determined the use of the word "might" in I.C. 31-14-14-1 means the court can't restrict visitation unless it would endanger the child's physical health or well-being.
While The Indiana Lawyer emphasized the parenting time/visitation issue, the case also involves the change of custody from mother to father.  Look at pages 7 -  10.

The opinion also addresses a point not often discussed in Indiana's appellate opinions, the child's wishes:
B. S.N.'s Wishes
Mother argues that there was not a substantial change in S.N.‟s wishes. Father claims that S.N.‟s “attitude is poor around [Mother] because he wants to reside with [Father].” Id. at 93. S.N. indicated that he shares a more positive relationship with Father than with Mother. S.N.‟s older sibling also reported that S.N. “has wanted to reside with [Father] since the fifth grade.” Id. at 96.

Not that the child's wishes determine a case but only one.  Consider this from the same opinion:
Although any one factor may not necessarily warrant a change of custody in the present case, consideration of all the factors, including the conclusion in the DRCB report that it was in S.N.‟s best interest for him to reside in Father‟s primary care, is sufficient to establish that modification is in the best interests of the child and a substantial change has taken place in the interaction and interrelationship of S.N. with S.N.‟s parent or parents, S.N.‟s adjustment to his home and community, and the health of all of the individuals involved....
Opinion at page 9 -10.

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