Tuesday, January 12, 2010

Enforcing Indiana Visitation Rights

Between reading WHAT IS NEEDED FOR VISITATION ENFORCEMENT? and an e-mail from a client of mine, I think I need to clarify some points about enforcing parenting time/visitation that I made in my What to do if refused visitation? and .

First, let us be clear - withholding child support means only more trouble and not less.

Second, the remedy is contempt. See Deckard v. Deckard, 841 NE 2d 194, 203(Ind Ct. App. 2006).

Which brings me to the first point where I find the solutions suggested by WHAT IS NEEDED FOR VISITATION ENFORCEMENT? to be wrong. In addition to the court order granting visitation, it is suggested that a second document be filed with the court and served on the custodial parent:

This sample document is used to notify the non-custodial parent of intent of visitation and printed with permission from DADS Against Discrimination and is intended to help document attempts made while exercising court ordered visitation.
Utterly unnecessary. Custodial parent has all the notice necessary from the court order granting visitation. So does the court. The non-custodial does not give notice because the visitation schedule is expected to be followed without any other action by the non-custodial parent.

Read this from the Indiana Parenting Time Guidelines:
2. Punctuality. Each parent shall have the child ready for exchange at the beginning and at the end of the scheduled parenting time and shall be on time in picking up and returning the child. The parents shall communicate as early as possible regarding any situation that would interfere with the timely exchange of the child.


Punctuality is a matter of courtesy. Parents should make every effort to pick up and return a child at the agreed time, and not substantially earlier or later. Parents should recognize, however, that circumstances occur that require leeway in the scheduled times. Phone calls are always appropriate when there will be a delay.

This document fails to serve as evidence of visitation but only that the non-custodial parent gave notice. Therefore, it does nothing when custodial parent says the non-custodial parent did not show up.

Further down the page on WHAT IS NEEDED FOR VISITATION ENFORCEMENT?, the site gives advice on how to prove a denial. About the only one that seems even useful to me is to bring a witness.

Getting cop can be done but do not expect them to come along happily, if they do. Police consider this a civil matter and their job deals with criminal matters.

The custodial parent should have copy of the order granting visitation. Therefore, it is wholly unneeded unless non-custodial expects the police to show up and ask why he is there. Also, bringing only the Divorce (or Paternity) Decree can be useless if the Decree was modified and you do not also bring along the Indiana Parenting Time Guidelines. Most Decrees now say IPTG at a minimum. (Do not expect the police to know about any of this - visitation is a civil matter and outside their training). Understand that means you got 80 plus pages in your hand by this time, if you follow the suggestions given.

As evidence that you got denied visitation, 4 and 5 are pretty useless. Doing this only proves that you made the recording. Here is the scenario in every visitation case I have tried - defending or pursuing:
Attorney: You were to have visitation on X date?
Non-custodial: Yes.
Attorney: What happened?
Non-Custodial: I was not allowed to have my children.
Attorney: Did custodial give you a make up date?
Non-Custodial: No.
With that the non-custodial establishes a prima facie case for contempt. Remember the burden is on the custodial parent to prove they did not commit contempt. Recording that you got there and were denied changes nothing, adds nothing, to the evidence of the custodial parent.

What confused one of my client is that every missed visitation does not merit a contempt affidavit. No client could afford the cost, no court is going to want to see an affidavit for every missed weekend. If the custodial continues to refuse visitation after filing of a contempt affidavit, the post-filing refusals become evidence of contempt and goes to whatever remedy the trial court orders for the case (such as the number of make up visitation).

Also, see my Enforcing Parenting Time: Contempt

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