Wednesday, January 26, 2011

House Bill 1167 Employee Right to Parenting Time

One of the bills on my radar screen is 2011 Indiana House Bill 1167 Employee right to parenting time. The synopsis of the bill is as follows;
Requires the employer of a parent to provide parenting time to an employee parent if a court has ordered parenting time during the employee's regularly scheduled hours of employment. Provides for enforcement by the commissioner of labor.

At first sight this sounds like good legislation, certainly well-intended legislation. As we all do want to ensure that children have their right to parenting time exercised I do like efforts to accomplish this. In reading it though I observed that this is adding more to a pile of business regulations related to employees. One that includes penalty provisions.

From a business owner perspective I also look at most employee laws as an impediment to efficient business operation and how to avoid them. My thought with this bill is that if I was looking at prospective employees I would choose those who are not non-custodial parents. So, in theory, this could reduce employment opportunities for non-custodial parents.

When considering whether to support legislation I always ask myself first -- is it necessary. Thus, my immediate opposition to anti texting-while-driving proposals. We already have reckless driving laws in place.

With that view in mind -- do we already have laws, rules or court orders in place that can accomplish the intent of this bill?

The Indiana Parenting Time Guidelines [IPTG] provides for accommodating necessary adjustments to parenting time schedule.
"Whenever there is a need to adjust the established parenting schedules because of events outside the normal family routine, the parent who becomes aware of the circumstance shall notify the other parent as far in advance as possible. Both parents shall then attempt to reach a mutually acceptable adjustment to the parenting schedule.
If an adjustment results in one parent losing scheduled parenting time with the child, 'make-up' time should be exercised as soon as possible. If the parents cannot agree on 'make-up' time, the parent who lost the time shall select the 'make-up' time within one month of the missed time."

A parent who gets scheduled to work during parenting time needs to inform the other parent of the conflict and also the desired "make-up" time. I do understand that this is not the same as exercising regular parenting time but it is the system that has been in place since the guidelines were established.

The Domestic Relations Committee is currently reviewing the IPTG. I have attended all of the meetings and reviewed all the public comments. This was not expressed as an issue that I recall was a problem. However, I will review the guidelines and comments and bring this issue to the attention of Magistrate Bobay who is to be working on the section for "make-up" time.

Another approach to ensuring that parenting time occurs as planned is to start at the trial court level. When the matter of parenting time is being litigated it is important to consider the work schedule of both parties and craft a schedule that can accommodate those.

Schedules can be crafted that do consider the prospect that work schedules may be unknown. This is common in transport and some fields of the construction industry. Public safety officers, especially firemen, may also have work schedules that would often conflict with a set parenting time schedule.

I have seen orders crafted that contemplate these circumstances which may be similar to this;

Respondent shall exercise parenting time on three consecutive 24 hour periods each week including every other weekend beginning at 6:00 p.m. on the first day and ending at 6:00 p.m. on the third day. Additionally, all holidays and extended parenting time shall be per the IPTG.
Respondent shall submit desired parenting time schedule to the Petitioner no later than one week prior to the time parenting time is to occur. If Respondent's work schedule does not permit three consecutive days then Respondent shall be entitled to one 24 hour period and one 48 hour period for the week.
Petitioner and Respondent are to work together to facilitate a parenting time schedule that provides the most consistent and least disruptive schedule for the children while considering Respondent's work schedule.

I do understand that work schedules may change due to overtime, a change in employment or other factors that the parties or court may not have been aware of when the order was issued. To seek a modification in the current parenting time order a parent would need to show that there is a substantial change in at least one of the eight factors that a court must consider and that the modification would be in the best interest of the child. see IC 31-17-2-8.

The burden to demonstrate this is on the parent seeking the modification. Modification of child custody may occur only when a parent can demonstrate "modification is in the best interests of the child, and there is a substantial change in one or more factors the court may consider." see Heagy v. Kean, 864 N.E.2d 383, 388 (Ind. Ct. App. 2007).

However, the courts do presume that exercising meaningful parenting time is in the child's best interest. Fostering a child’s relationship with the noncustodial parent is an important factor bearing on the child’s best interest and, ideally, a child should have a well-founded relationship with each parent. see Johnson v. Nation, 615 N.E.2d 141, 146 (Ind. Ct. App. 1993).

In fact, these are the first words of the IPTG:
"The Indiana Parenting Time Guidelines are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child."

A work schedule that consistently interferes with and results in a child not getting to have parenting time with the NCP is ground for a modification of a parenting time order and it should be modified.

I am fully aware that this is not the easiest and quickest solution for that parent. That parent may feel the need to use an attorney to do this and bear the cost of that. I do believe that in the long run this is a better solution that placing the burden onto the employer.

Cooperation and agreement between the parents is the best method. I do not support the movement to sanitize parenting time issues. By that I mean removing opportunities for conflict and resolution or cooperation are to be removed. For better of for worse parents are parents for life.

There is incentive for the custodial parent to be accommodating and reach an agreed upon schedule. The IPTG allow the noncustodial parent to "select the 'make-up' time within one month of the missed time" if the parents don't agree. Additionally, forcing a parent into choosing to exercise parenting time or work may result in unexcused absences and loss of employment. This could very well have the consequence of lowered or no child support payments since most NCP are ordered to pay something.

There is evidence that parents who are forced into resolving conflict generally reduce conflict over time and display actions that are more aligned with the best interest of the children.

Armed with the proper knowledge and opportunities a parent who is experiencing a loss of parenting time due to work schedule conflicts should be able to get that remedied. In the process there may be an opportunity to build a better relationship with the other parent.

My discussion about support or opposition to this bill may be moot though as I do not believe it will be set for hearing. So, use it for what you can and try to get your parenting time in one of the ways I have suggested.

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