It is often argued to me, generally by the parent who does not have primary rights and responsibilities, that the same standard applied to termination of parental rights proceedings [clear and convincing evidence] should apply to dissolution or paternity proceedings.
I have long taken the stand that the lower standard [preponderance of the evidence] is the appropriate standard since dissolution proceedings are covered by contract law and at least one of the parties invited the State to determine child custody.
When the matter is determining the division of time that the parents will share responsibilities for providing the daily care of the children I stand by that proposition. In this review I will examine the scenario in which one of the parents seeks to then suspend or terminate the other parents share of that time and whether a different standard applies.
Under Indiana law, and that throughout all states, married parents equally share the right to make decisions concerning the care, custody, and control of their children.[fn1] Before the state may intervene and take custody of their children the state must show; that there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied; there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child; or, the child has, on two separate occasions, been adjudicated a child in need of services. [IC 31-35-2-4}
Indiana law states that a "finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence" [IC 31-37-14-2] which has been upheld through a long line of caselaw.[fn2]
The United States Supreme Court has articulated that a parent’s interests in raising his or her children is “perhaps the oldest of the fundamental liberty interests,”[fn3] and the Indiana Supreme Court has described it as “one of the most valued relationships in our culture.”[fn4] The parental rights upheld by the United States Supreme Court are applied to the many states individually through the Fourteenth Amendment to the United States Constitution.[fn5]
Yet courts throughout the state regularly divest a parent of parenting rights by assigning legal custody of the children to only one parent who then also has physical custody at a minimum. The standard in this instance is not clear and convincing but, rather, the lesser preponderance of the evidence as weighed against the eight factors provided for by statute. [IC 31-17-2-8]
Indiana does provide a mechanism in which a parents' rights may be restricted or eliminated. The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development. [IC 31-17-4-2]
The Indiana Court of Appeals has concluded that the preponderance standard is the appropriate burden of proof in this situation.[fn6] The Court held that the preponderance standard applied to a party seeking to terminate visitation rights in dissolution proceedings “[b]ecause the private interest at stake, although great, is not permanently terminated and the state is not the initiator of the termination”. However, a court in a dissolution proceeding can eliminate a parent's parenting rights until the child is emancipated thereby nearly serving the same result as a termination proceeding initiated by the State.
Our supreme court has explained that the clear-and-convincing standard is an intermediate standard of proof that lies between a preponderance of the evidence and beyond a reasonable doubt which is required to find guilt in criminal prosecutions. The burden of proof by clear and convincing evidence is not a burden of convincing you that the facts which are asserted are certainly true or that they are almost certainly true or are true beyond a reasonable doubt. It is, however, greater than a burden of conviction by a preponderance of the evidence which is that the facts are more probably true than not true.[fn7]
The Court has stated that the clear-and-convincing standard applies in proceedings to terminate parental rights, which are initiated by the State.[fn8] Yet clear and convincing evidence was not required in order for the trial court to establish a guardianship which, in effect, deprived the parents of all their parental rights for a temporary, but indefinite, period of time.[fn9]
The Honorable Jon W. Webster in a paternity case where mother had sought to temporarily terminate Father's parenting time rights tried to reconcile these varying standards against the potential deprivation of liberty of Father and the best interest of the child. Webster concluded;
There is a dearth of case law addressing modification of parenting time in the context of a paternity, but there is no reason to believe the scope of the Court‟s review should be any different than in a dissolution proceeding when modification of parenting time is sought. On the issue of elimination of parenting time, [Mother] carries the burden of proof. Typically, that burden is by a preponderance of the evidence. However, a parent seeking total elimination or suspension of parenting time, even for a short period, surely must be held to some higher standard because the effect, if successful, is to essentially terminate parental rights while still maintaining the requirements of parental financial responsibility for payment of child support, health care costs, etc. AND, worse yet, cutting a child off from the parent. Although no higher courts of this State have spoken on this issue, at least a clear and convincing standard, should be required before a trial court totally eliminates parenting time . . . A parent's right to raise and be a part of a child's young life is a fundamental Constitutional right deserving safeguard from only but the strongest of proof terminating or suspending that right." Mother appealed, arguing that the lesser standard should apply.
In that case Mother had alleged that Father had sexually assaulted the child and used a firearm pointed at the child. The Court found "a nearly total lack of evidence that would cause or lead educators, caregivers or other friends and family familiar with [child] and [Father] to believe [child] is in any distress and a father who shows no other signs of being an abuser or deviate.
There have never been any criminal charges filed against [Father] for any type of sex crime involving [child] nor for pointing a firearm at [child]. This fact alone is not conclusive, but important because the allegations are so severe, depraved, and reprehensible that surely if they had the slightest merit, something would have been filed.
Each official investigation by the Indiana Department of Child Services involving allegations against [Father] has been unsubstantiated.
There is little, if any, evidence from school personnel that [child] is anything other than a healthy, rambunctious little boy."
It is clear from these findings that Mother's allegations were false and used as a means of trying to deprive the child of access to and the nurturing influence of his father. The record also indicated that there may have been coaching of the child.
The Indiana Court of Appeals, in remanding the case, ruled that, "[U]ntil either our legislature or our supreme court determines otherwise, we conclude that the preponderance standard is the appropriate burden of proof in this situation."
Based upon that being a paternity case IC 31-14-14-1, the companion to the dissolution statute for the same purpose [31-17-4-2], controlled, which reads:
"A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might endanger the child's physical health and well-being or significantly impair the child's emotional development." [emphasis added]
IC 31-14-14-2 then provides that "[t]he court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child."
The Indiana Court of Appeals has stated that even though IC 31-14-14-1 uses the term "might" the court interprets the statute to mean that a court may not restrict visitation unless that visitation would endanger the child's physical health or well-being or significantly impair the child's emotional development.”[fn10]
Considering the potential for abuse by a vindictive or alienating parent and the possible indefinite length of the suspension of parenting time, which may reach into the child's adult life, I believe that Judge Webster's motivation was correct. It is also apparent that it will take legislative action to change this which the appeals court has appeared to invite.
IC 31-17-4-2 and IC 31-14-14-2 should be amended to include language that states that a court may not terminate the parenting time of a parent, for any period of time, without a showing by clear and convincing evidence that the suspension of parenting time is necessary to protect the child from physical endangerment or significant impairment to the child's emotional development.
(1) Stanley v. Illinois, 405 U. S. 645, 651 (1972).
(2) Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992); The State must establish these allegations by clear and convincing evidence.
(3) Troxel v. Granville, 530 U.S. 57, 65 (2000).
(4) Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).(quoting Neal v. DeKalb County Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)).
(5) id
(6) Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied.
(7) J.C.C. v. State, 897 N.E.2d 931, 934 (Ind. 2008)
(8) Moore v. Jasper County Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008).
(9) In re Guardianship of Thompson, 514 N.E.2d 618 (Ind. 1987).
(10) Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. 10 App. 2003) (citing Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied.
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