Saturday, December 25, 2010

Indiana Parenting Time Christmas Schedule to change in 2012

When I was first subject to using the Indiana Parenting Time Guidelines to divide Christmas break for my son,Therin, between his mother and I it was somewhat confusing. Throughout my years as a policy advisor I have heard the repeated complaint from parents that I first had. Primarily that when the middle of school breaks fall near Christmas Day and end very close to New Year's the Guidelines seem to provide a silly schedule at best.

In the most contentious situations I have seen a parent insisting upon a middle of the night exchange of the child. Sadly, that parent's lawyer was fully in support of that proposition. I don't want to go off onto a rant about lawyers but I strongly feel that the advocacy for their clients should come second to what we, through common sense, know id best for the children. Fortunately, the judge didn't go for it. For authority I cite to Stewart v. Stewart, 521 N.E.2d 956, 960 (Ind. Ct. App. 1988), trans. denied. "The parent’s right of visitation is subordinate to the best interests of the children."

So here is the language from the Guidelines related to what is called "Christmas Vacation";

B. Christmas Vacation.
One-half of the period which will begin at 8:00 P.M. on the evening the child is released from school and continues to December 30 at 7:00 P.M. If the parents cannot agree on the division of this period, the custodial parent shall have the first half in even-numbered years. In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day. The winter vacation period shall apply to pre-school children and shall be determined by the vacation period of the public grade school in the custodial parent’s school district.

Next we then have the language from the Guidelines related to New Year's Day which falls under "Holidays" as follows;
C. Holidays.
In years ending with an even number, the non-custodial parent shall exercise the following parenting time:
[1] New Year’s Eve and New Year’s Day. (The date of the new year will determine odd or even year). From December 30th at 7:00 P.M to 7:00 P.M. of the evening before school resumes.

I will examine this from an assumed 2010 school break schedule of students being released for break on Friday 17 December then school resuming on Monday 03 January.

Being an even numbered year, 2010, absent an agreement the custodial parent will have the children the first half of the break with the non-custodial parent having the children the second half which ends on 30 December. The custodial parent would be able to exercise Christmas Day parenting time from noon-9:00pm. For the New Years holiday 2011 will determine odd or even. So for 2010 the custodial parent would get the children for the New Year's holiday. We'll also assume, just for kicks, that the non-custodial parent's regular parenting time weekend began on Friday 17 December.

Thus, using the above scenario this years Christmas Vacation would be divided as follows:
NCP 17 December 2010 at 6:00pm through 17 December 2010 at 8:00pm;
2 hours
CP 17 December 2010 at 8:00pm through 24 December 2010 at 8:30am;
six and one half days
NCP 24 December 2010 at 8:30am through 25 December 2010 at noon;
27.5 hours
CP 25 December 2010 at noon through 25 December 2010 at 9:00pm;
9 hours
NCP 25 December 2010 at 9:00pm through 30 December 2010 at 7:00pm;
2 hours short of five days
CP 30 December 2010 at 7:00pm through 02 January at 7:00pm
3 days
The child should remain with the custodial parent unless the non custodial parent has a Sunday overnight in which case the child would go to the NCP at this time.

This produces 6 exchanges with 3 periods being about 1 day of less.

I have brought this to the attention of the Domestic Relations Committee of the Judicial Conference of Indiana [DRC] which, on its own, has not missed the glaring disruption that a schedule like this can create in the life of both the child and the parents.

So here is what the DRC is contemplating for Christmas Vacation and New Year's Day;
New Year's Day will be eliminated as a holiday and exchange times for holidays generally will be changed to 6:00pm consistent with regular parenting time weekend schedules. [Additionally the title may be changed to "Winter Break"]

Thus, if the proposed changes were applied this year the Christmas Vacation would be 16 whole days producing a midpoint of 6:00pm on Christmas Day. This produces a guideline that has both parents having the child on Christmas Day without any modification by the Guideline language, "In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day." I therefore propose a slight change to "In those years when the beginning of Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day."

The Christmas Break midpoint being 6:00pm would have the non-custodial parent not having the children at the beginning of Christmas Day. Thus, the schedule would look like this;

CP 17 December at 6:00pm through 25 December at noon;
NCP 25 December at noon through 02 January at 6:00pm

There may be situations where a school corporation would have only a one week break or a schedule that would produce short periods of time near the Christmas Day exchange. For this I suggest that no exchanges outside of Christmas Day that result in a parenting time period of less that 24 hours be allowed. Some members of the DRC have already suggested that all parenting time exchanges take place between 9:00am and 9:00pm.

Not to be overlooked is the Preamble to the Guidelines which includes; Parents "should be flexible and create a parenting time agreement which addresses the unique needs of the child and their circumstances." In Keen v. Keen, 629 N.E.2d 938, 941 (Ind. Ct. App. 1994) our court of appeals has affirmed this in stating, "We encourage parties to negotiate agreements regarding custody and parental visits." It is well settled that an agreement between the parties must succumb to the best interest of the child though.

The Court has further expanded on its premise that parents should cooperate in fashioning the own agreement. In McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004) the Court stated, "As the name suggests, the Indiana Parenting Time Guidelines are not immutable, black letter law, but rather are guidelines that aim to assist divorced parties in developing an agreed parenting time arrangement for the non-custodial parent."

The DRC is currently reviewing the Guidelines and will be accepting additional public input. If you would like to participate in this process please contact me.

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