Grandparents’ Visitation Rights in Indiana

Grandparents’ rights is something of a hot topic in Indiana right now.  We do have a statute (I.C. 31-17-5) governing grandparents’ visitation rights, but it’s quite old and, many would argue, out of date.  The statute provides for grandparents to seek visitation in three circumstances: where the child’s parents are deceased, the child’s parents are divorced, or the child was born out of wedlock.  If, therefore, the two parents are married, or if the single parent is allowing the grandparents ANY contact with the child at all (however minimal), the grandparents will not have grounds to petition the court for visitation.

The statute has remained unchanged while the courts have issued a number of opinions over the years that limit the rights of grandparents.  Meanwhile, members of the Indiana General Assembly have been working on bills that would potentially expand grandparents’ rights.

A US Supreme Court case, Troxel v. Granville (2000) served to significantly limit the rights of grandparents.  Prior to the case, in some jurisdictions anyone could petition for visitation of a child, and the court was free to grant the petition as long as the best interests of the child would be served by such an order.  But in Troxel, the Court hammered on the presumption that fit parents act in the best interest of their children – so as long as the parents are fit, the State should not challenge the parents’ decisions regarding the children.  The Troxel decision has had a huge effect on visitation rights everywhere – including right here in our backyard.  Decisions issued by Indiana courts post-Troxel have “taken the teeth” out of our visitation statute, making it much harder for grandparents to win visitation rights in court.

As I mentioned, the General Assembly has introduced a number of bills that would expand grandparents’ rights – expanding grandparents’ rights to great-grandparents, for example, or attempting to give grandparents rights where the parents are still married to one another.  But none of these bills has been signed into law.  And there is significant opposition to any expansion of grandparents’ rights – from attorneys, some lawmakers, and advocacy groups who are concerned that expanding GP rights might be harmful to children, since simply becoming a grandparent does not change a person into a “cookie-baking, kind-hearted individual”, since some GPs may not be good role models, and since interference with the parenting decisions of Mom and Dad (or Mom, or Dad, or Mom and Mom, or Dad and Dad…) could be confusing and harmful to the child.  In addition, since fit parents have a constitutionally-protected right to raise their children as they see fit, any new legislation will have to treat carefully to avoid being struck down by the courts on constitutional grounds.

Post-Troxel, there are a number of issues left to be resolved by the lower courts.  What must a grandparent prove to rebut the presumption that a parent’s decision to limit or deny GP visitation is in the child’s best interest?  And by what standard must the argument be proved – the lower “preponderance” standard, or the more rigorous “clear and convincing evidence” standard, or something else?  And what procedural thresholds must be cleared before litigation is an option?  After all, litigation is almost never good for families – it is stressful, expensive, and can create a lot of bitterness that makes functioning together for the good of the child very difficult down the line.

If you are facing a grandparents’ rights issue in your family, don’t navigate it alone.  These issues are, as I described above, very complex, thorny, and difficult emotionally and legally.  Consult with a family law attorney in your neck of the woods for a thorough review of your rights, options, and chances of success going forward.

Best of luck, and thank you for stopping by.

Kate Flood

Flood Family Law, LLC

Indianapolis divorce attorney

 

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Changes to the Indiana Parenting Time Guidelines

The Indiana Parenting Time Guidelines – anyone who’s been divorced, who’s in the middle of a divorce or separation, or who has had a child with an unmarried partner is all too familiar with the schedules, rules, and expectations set forth by the IPTG.

But did you know that the PTG underwent some significant changes earlier this year?  Effective March 1, the revised PTG are in effect.  You can find them here: http://www.in.gov/judiciary/files/order-rules-2013-0107-parenting.pdf.

1. Applicability: The new PTG apply ONLY to parenting time orders issued AFTER March 1, 2013.  So if your order, agreement, or decree became effective before that date, you are generally still under the old PTG.  The new PTG won’t apply retroactively unless there is language in your order, agreement or decree that says it will.

2. Annual Schedule: The new PTG is written to encourage parents to come up with a year-round schedule that works for both parents and the child(ren) to reduce the chance for conflict throughout the year.

3. Findings: When the court decides to give a noncustodial parent MORE than PTG parenting time, the judge can do so, and does not need to enter a written explanation.  But if the judge decides to give a noncustodial parent LESS than PTG parenting time, he/she must provide written findings of fact to support his decision.

4. Email: Parents are now expected to provide each other with an accurate email address, in addition to telephone number and address, to allow them to keep in contact with one another.

5. Communication with the Child: The new PTG emphasizes the importance of the child being in communication with one parent during the other parent’s parenting time.  Each parent is expected to facilitate communication between the child and the other parent.

6. Punctual exchanges: The importance of punctuality in parenting time exchanges is emphasized; a new feature of the new PTG is that delays trigger make-up parenting time to occur at the convenience of the parent not responsible for the delay.  See Section I(B)(2).

7. Opportunities for Additional Parenting Time: Formerly referred to as the “right of first refusal,” the “opportunity for additional parenting time” language in this section brings in a principle established in a 2006 Indiana Supreme Court case, Shelton v. Shelton.  The opportunity for additional parenting time is NOT triggered when a responsible household family member – meaning “an adult person residing in the household, who is related to the child by blood, marriage, or adoption” – is caring for the child.

8. Medical Instructions: Per Section I(D)(4), medical instructions relating to the child must be followed by the non-custodial parent.

9. Young Children: For infants and very young children, the new PTG adds language recommending overnight visits with the non-custodial parent only when he or she has previously exercised “regular care responsibilities.”  See Section II(B).

10. Summer Parenting Time: The date for the non-custodial parent to notify the other parent of his/her selections for summer parenting time has not changed – it’s still April 1.  But now the notice should be given both verbally AND in writing.  In addition, any employer-imposed restrictions on parenting time should be taken into consideration by both parties when establishing the summer parenting time schedule.  See Section II(D)(3).  And there is also new language for children enrolled in “balanced calendar” or year-round schools, requiring parents to equally divide spring and fall breaks.

11. Regular Parenting Time vs. Holiday Parenting Time: The interplay between regular alternating weekends and holidat parenting time has been clarified: holiday parenting time takes precedence over alternating weekends, of course (that’s not a change), but the “tempo” of alternating weekends doesn’t change.  This means parents don’t “flip” weekends just because a holiday got in the way.  The upshot is, either parent may end up with 3 weekends in a row due to a holiday.  No make-up time is given for that time, because the calendar should balance itself back out over the next few holidays.

12. New Year’s Eve/Day No Longer “Holidays”: New Year’s Eve and New Year’s Day have been removed from the list of holidays.  To make winter break parenting time simpler, they are now just part of the regular winter break allocation.  See Section II(F)(2)(B).

13. Birthdays are Trumped by Holidays: Children’s birthdays and parents’ birthdays still count as “special days,” but if there is a conflict between a birthday and a holiday, other special day, or winter break, the birthday does not take precedence.  See Section II(F)(2)(A)(5).

14. Winter Break: There are slight revisions to the exact time winter break starts and ends, but the general concept is still that one parent gets the first half of winter break and the other gets the second half.  In addition, whichever parent would otherwise not have Christmas Day with the child will have the child from noon to 9pm on that day.  See Section II(F)(2)(B).

15. MLK Day and Presidents’ Day Weekends Added: MLK Jr. Weekend and Presidents’ Day Weekend are now considered holidays, if they are observed by the child’s school.  If they are, then the holiday goes from Friday at 6pm until Monday at 7pm.  See Section II(F)(2)(C).

16. Fall Break Added as a Holiday Weekend: See Section II(F)(2)(C) – Fall Break is now an alternating holiday weekend, beginning 2 hours after the child gets out of school, and going until 7pm the evening before the child goes back to school.

17. Holiday Schedule Expressly Alternates: The new PTG clarifies that the holiday schedule alternates between custodial and non-custodial parents each year.  See Section II(F)(2)(C).  (Previously, the PTG only allocated certain holidays to the noncustodial parent in certain years, leaving it unclear whether the custodial parent got those holidays in the noncustodial parent’s “off” years or whether the regular parenting time schedule was to be maintained.)

18. Parallel Parenting: This is a brand-new section added to the PTG this year.  Parallel parenting is only for cases of extreme conflict between the parents – like cases where there has been serious domestic abuse between the parents, for example.  It is designed to minimize the need for parents to communicate with one another, and communication is encouraged to be in writing only, except in true emergencies.  Basically, when Parent A has the child, Parent A parents as he or she sees fit during his/her parenting time.  And when Parent B has the child, Parent B parents as he or she sees fit.  They do not coordinate or interfere with one another’s parenting.  Situations where Parallel Parenting is appropriate are very few and far between, and if the court allows a family to engage in Parallel Parenting, the court will require a mandatory review every 180 days to determine whether it would be appropriate to transition to another parenting plan.

I hope this has been helpful in navigating the complex world of custody and parenting time.  Remember, unless the court has ordered you to follow them, the PTG are just guidelines meant to help parents and/or the court come up with a parenting plan that works for that family.  And unless your court order says otherwise, you’re always free to deviate from the Guidelines by agreement with the other party (but if you do, make sure you get it in writing so there are no questions later).

Hat tip to Michael Kohlhaas for his July 17 article in the Indiana Lawyer.

Best regards,

Kate Flood

Indianapolis divorce and custody lawyer

“Signing away” your rights to a child

There seems to be an idea floating around out there that if a parent desires neither to pay child support nor to have a relationship with his or her child, he or she can simply “sign away” his or her rights to the child – wash his or her hands of the child entirely and be done with any rights and/or responsibilities he or she would otherwise have as a parent.

Not so fast.

In a recent decision by the Indiana Court of Appeals, the Court was not amused by such kind of arrangements.  “The concept of parents negotiating away parenting time as a means to eliminate the obligation to pay child support is repugnant and contrary to public policy.”  The Court went on to add that “It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying support.  Just as allowing an agreement to contract away a child’s right to support must be held void, an agreement to contract away a child’s right to parenting time, where the presumption that such parenting time is in the child’s best interest has not been defeated, must also be held void as a matter of public policy.  Every child deserves better than to be treated as nothing more than a bargaining chip.”

If you find yourself in a situation where “signing away” rights to a child – either yours or the other parent’s – seems like a good option, you will discover that the Courts are not going to be friendly to that point of view.  There are many tools that we CAN use to come up with a parenting time arrangement and child support obligation that may be satisfactory to you, while also passing muster with the Court, but I would recommend in situations like these that you hire a competent family law practitioner to guide you on this path.

Best of luck,

 

Kate Flood

Indianapolis divorce lawyer