Wednesday, March 23, 2011

Interference with Child Custody - Parenting Time

One of the most common complaints I get from parents is that they are being denied custody rights of or parenting time with their children in some form. For legal custody this can be making medical decisions, enrollment in activities or a change in religious practices or attendance without consultation with the parent who shares custody. For parenting time this varies from first-right-of-refusal issues to outright denial of extended summer parenting time.

In this article I am going to limit my presentation to issues related solely to parenting time. Although the Indiana Interference with Custody statute [IC 35-42-3-4] is permeated with language about "child custody rights" the statute wholly relates to parenting time rights. The statute was last amended in 1990. It hasn't been until the last ten years that we have full embraced using the term "parenting time" to refer to physical custody.

Interference with parenting time is a crime in the State of Indiana.

(a) A person who, with the intent to deprive another person of child custody rights, knowingly or intentionally:
        (1) removes another person who is less than eighteen (18) years of age to a place outside Indiana when the removal violates a child custody order of a court commits interference with custody, a Class D felony.
(b) A person who with the intent to deprive another person of custody or parenting time rights:
        (1) knowingly or intentionally takes;
        (2) knowingly or intentionally detains; or
        (3) knowingly or intentionally conceals;
a person who is less than eighteen (18) years of age commits interference with custody, a Class C misdemeanor. However, the offense is a Class B misdemeanor if the taking, concealment, or detention is in violation of a court order.

Interference with parenting time does more than deprive a parent of the opportunity to spend time with his or her child. More importantly the child is deprived of his or her right to a consistent and reliable relationship with the parent from which everlasting bonds will be built.

Denial of parenting time has little if any consequences, especially criminally. Although existing in statute penalties are rarely imposed. I look to Minnesota for a model of where I would like to see the development of laws in Indiana.

In her landmark study, "Surviving the Breakup," researcher Joan Berlin Kelly found that as many as 50 percent of custodial mothers routinely and actively tried to sabotage father-child relationships.

The following are the remedies for denial of or interference with court-ordered parenting time in Minnesota. All parenting time orders must include notice of the relevant provisions of Minnesota law.
If the court finds that a parent has been deprived of court-ordered parenting time, then the parent who has interfered must make up parenting time to the other parent in most cases. If compensatory parenting time is awarded, additional parenting time must be: least of the same type and duration as the deprived parenting time and, at the discretion of the court, may be in excess of or of a different type the deprived parenting time;
2.taken within one year after the deprived parenting time; and a time acceptable to the parent deprived of parenting time.
If the court finds that a parent has wrongfully failed to comply with a parenting time order or a binding agreement or decision, the court may:
impose a civil penalty of up to $500 on the parent;
require the parent to post a bond with the court for a specified period of time to secure the parent's compliance;
award reasonable attorney fees and costs;
require the parent who violated the parenting time order or binding agreement to reimburse the other parent for costs incurred as a result of the violation of the order or agreement or decision; or
award any other remedy that the court finds to be in the best interests of the children involved.

The Canadian The Family Justice Review Committee believes in a number of basic principles when it comes to the issue of interference of parenting.  Some of these principles are:
That parents who interfere with a child's parenting time with another parent are indeed perpetrating a form of emotional abuse and that interference in a parent-child bond may not only produce lifelong alienation from a loving parent, but lifelong psychiatric disturbance in the child.  A parent who interferes with access is bringing about a disruption of a psychological bond that could, in the vast majority of cases, prove of great value to the child, regardless of the relationship between the parents.
Parents who interfere with access are failing to act in the best interests of their own child and are in fact failing in their duties as parents.
That the courts must give serious consideration to interference of parenting when deciding the custodial status of the parent.

Those principles were taken from the article Interference of parenting is child abuse! on which I suggest that you also read.

There are times when facilitating parenting time will not be possible. Not all of these will be considered a denial of parenting time. Sitting in a doctor's office 45 minutes after the scheduled appointment before getting seen is certainly excusable. Doing like my ex wife and scheduling her own appointment for 3:30 at a location a half hour away from the exchange site and then calling at 4:05 to say she was just leaving the doctor's office was intentional interference. The Indiana Parenting Time Guidelines [IPTG] contemplate circumstances where facilitating parenting time may not be possible. Canceled flights, medical emergencies, distant relatives coming in for the weekend, and such.

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. - IPTG I(C)(2)

Next year I plan to introduce comprehensive child custody notice legislation in the Indiana General Assembly. If you have ever seen a No Contact Order [this is likely if you've gone through a contested child custody proceeding] you know that there is an advisement page stating the possible penalties for violating the order. Just as Minnesota has done I would also like to see an advisement page added to Indiana child custody orders.

I want the statutes about modification of legal custody or parenting time to be included on the advisement page. Many parents are not even aware of the "eight factors" enumerated under IC 31-17-2-8. Also a brief listing and location of some of the provisions in the IPTG that lead to the most contempt actions such as first-right-of-refusal and sharing of school records.

I believe this is important because interference with parenting time in addition to possible criminal penalties can be a basis for modification of custody or parenting time.

When the custodial parent denies visitation rights to the other parent without evidence that the noncustodial parent is a threat to the child, it may be proper based upon the circumstances for the trial court to modify custody. Bays v. Bays, 489 N.E.2d 555, 561 (Ind. Ct. App. 1986), trans. denied.

“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.” In re Marriage of Kenda and Pleskovic, 873 N.E.2d 729, 739 (Ind. Ct. App. 2007), trans. denied.

“When the custodial parent denies visitation rights to the other parent without evidence that the noncustodial parent is a threat to the child, it may be proper based upon the circumstances for the trial court to modify custody.” In re Marriage of Kenda and Pleskovic, 873 N.E.2d 729, 739 (Ind. Ct. App. 2007), trans. denied.; see also Hanson v. Spolnik, 685 N.E.2d 71, 78 (Ind. Ct. App. 1997), trans. denied.

In the reality of family law courts punishment for interference with or denial of parenting time is a rarity. Much more often you will certainly find the resources of the courts and prosecutors being dedicated to the enforcement of child support payment orders.

However, one of the most effective ways to ensure that child support payments are made is through the issuance of substantive parenting time orders and enforcement of those orders.

A majority (81.7 percent) of the 6.4 million custodial parents due child support payments in 2007 had arrangements for joint child custody or visitation privileges with the noncustodial parent. This is a decrease from 1993, when 85.6 percent of custodial parents due support had joint custody or visitation arrangements. Among this group, 78.3 percent received at least some child support payments in 2007. Of the custodial parents due child support who did not have either joint custody or visitation arrangements, 67.2 percent received child support payments. - US Census

One recent study found that only 1.9 percent of non-custodial parents who had access to their children didn't pay what they owed. But when access was denied by the custodial parent, the non-payment topped 60 percent.

In a 2006 issue of Children’s Voice Magazine comes the following information;
The government spends roughly $4-billion on child support enforcement while at the same time it spends only $10 million on parenting time enforcement. The government, using our tax dollars, spends 400-times more money on collection efforts than it does making sure that children get to spend time with the parent, usually a father, when the other parent is willfully violating parenting time orders.

There is a new section that I believe I will be successful in having added to the IPTG as the Domestic Relations Committee works this year on amending the guidelines. That is Virtual Visitation also known more formally as electronic communication time.

This will provide guidelines as to the usage of cell phones, on-line chat, texting, Skype and other forms of electronic communication that parents and children may use to stay in touch with each other. Once I know how it will be added to the IPTG I want to amend the criminal statute to include interference with electronic communication time such as blocking a parent's phone number, "defriending" or blocking a parent on social networking sites or denying the child access to the devices during the times the parent may be trying to make contact.

Ultimately policy makers, prosecutors and judges need to adjust rulings, dedicated resources, laws, guidelines and policies to reflect what is truly in the best interest of the children; that children are entitled to establish and maintain bonds with their parents without interference from either parent.

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©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

1 comment:

willam said...

The Division of Child Support Enforcement is proud of the work we do helping the children in Calefornia.