Domestic Relations Committee Seeks to Give Children More Access to NCP

The Domestic Relations Committee of the Indiana Judicial Center met on Friday 18 November 2010 for the purpose of continuing work on amending the Indiana Parenting Time Guidelines and other business as it may come before the committee. The Committee was to focus on parenting time to occur as planned and draft language related to Scope of Application and, General Rules Applicable to Parenting Time and Specific Parenting Time Provisions. Discussion should have included enforcement of parenting time.

Magistrate Raduenz states that the minimums established in the guidelines are being used as the 'presumption' which was agreed to by most on the committee. Discussion was held on ways to attempt to steer parties, practitioners and judges away from using the Guideline minimums as the norm.

While not declaring that a presumption on 50/50 time would be the starting point, which it was stated would be left to the legislature, language was drafted to specifically state that a parenting time plan should be established that is in the best interest of the child. If the parties cannot agree then the Guidelines would represent the minimum.

The current presumption reads, "There is a presumption that the Indiana Parenting Time Guidelines are applicable in all cases covered by these guidelines. Any deviation from these Guidelines by either the parties or the court must be accompanied by a written explanation indicating why the deviation is necessary or appropriate in the case."

The following was added to the commentary to encourage upward deviations;
A court is not required to give a written explanation as to why a mother or father is awarded more time with the child than the minimum set forth in these guidelines.

Because the IPTG are minimum standards, it is recommended that parents and courts not "default" to these guidelines in lieu of consideration of the best parenting time plan.

This still allows for a unilateral decision on parenting time by the custodial parent who can simply choose not to participate in negotiations and thereby impose the minimum time with the non-custodial parent on the children.

There was vigorous discussion on whether the amendments to the Guidelines should be retrospective or prospective. That is, should the changes apply to all existing orders which make reference to "per the Indiana Parenting Time Guidelines" or some similar language. The Committee had decided that it may be impermissibly stepping into the realm of modifying a child custody order if it made the changes retrospective.

I then presented the likely possibility that there would be children who the old Guidelines would apply to that would be living with a remarried parent who had subsequent children and divorced following the adoption of the revised guidelines who would be subject to differing time schedules. This could become a logistical impossibility as some of the proposed scheduling changes would be splitting siblings in a way that may require a parent to be in two places at one time.

It was decided by the committee that further research would have to be done on whether the changes can be made retroactive or if some mechanism could be put in place to allow for an expedited modification of existing orders to bring congruence with the revised Guidelines.

To insure punctuality of parents during exchange times language was drafted that would establish a threshold time limit that a parent must wait before abandoning the exchange attempt and also that both parties would be required to communicate should either party be late for the scheduled exchange.

A parent returning the child would be able to return home with the child to await the arrival of the receiving parent. For those who are required to meet at a mutual location the receiving parent would have to notify the returning parent of his or her arrival at that location. If the late parent did not attempt to communicate with the other parent the punctual parent could set the terms of the exchange without further agreement.

Finally, the Committee included language for Virtual Visitation. I had made a presentation on this issue earlier in the year. The language was not fully developed for this section of the Guidelines. Along with whether to make the Guidelines apply retrospectively, this issue will be revisited.

The next meeting of the Committee is scheduled for Friday 21, January 2011.


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