Tuesday, May 24, 2011

Comments due on Amended Proposed Indiana Parenting Time Coordination Rules

The Domestic Relations Committee and the Alternative Dispute Resolution Committee held a joint session on Friday 20 May 2011 to review public comment and amend the proposed parenting time coordination rules. The proposed PTC Rules were amended Friday based upon comments received by the Committee thus far. The public may still provide input until Thursday 26 May 2011.

The schedule is going to be strictly adhered to. The Supreme Court would like to have the Rules by July 1 to allow for time to send to WestLaw for publication effective 01 January 2012. The proposed rules will be sent to the Board of Directors of the Indiana Judicial Conference prior to the submission to the Indiana Supreme Court.

I have included as much of the comments and changes as I was able to from listening to the discussion. I make no claim that my following quotes are completely accurate.

The first change that the Committee noted was that all references to "both parties" or "both parents" have been changed to "the parties" and "either parent" is being changed to "a party". The purpose for this was to include all people that may be affected by the Parenting Coordinator's recommendations which may include subsequent spouses/partners, grandparents or other persons significantly involved in the lives of the children.

Much of the public comments received thus far have related to the qualifications for a PTC. The Committee has added commentary to Rule 2 as follows:
When the degree of conflict between the parties is so extreme that the appointment of a Parenting Coordinator is appropriate, the success or benefit to the family is directly related to the training and experience of the Parenting Coordinator. The cause of the conflict between the parties will vary with each individual case. The causation could include, but is not limited to, cases where domestic violence is persistent, or when one party is chemically dependent or mentally ill. The purpose of the rule is to create uniformity throughout the state in the appointment of qualified Parenting Coordinators. Requiring compliance with education standards and continuing education is necessary to maintain the degree of expertise required to identify the family's needs.

There had been significant concern expressed that there were existing PC who were effectively working with families who would have to be removed by the proposed qualifications. There was also concern as to whether some of the smaller communities had enough existing PC who meet the qualifications. In response rule 1.6 was added which reads;
"These rules apply to all parenting coordinator appointments made after the effective date of the adoption of these rules and do not modify existing parenting coordination orders. These rules do not limit a parties' right to file for modification under existing Indiana law."

In conceding to the wishes expressed in the public comments the Committee changed "shall" in Rule 2.3 to "should". Rule 2.4 was changed so that a PTC will not be required to have more education than mediators. The Committee felt that it was important to get these new rules in place and that they could later be amended to require greater educational requirements for Parenting Coordinators but that to do so now may jeopardize passage of the rules.

There was also acknowledgment that the commission does not currently have the manpower to check the qualifications of everyone.

There was extensive discussion about mandating PTC and the costs to the parties and what the threshold should be, whether it be consent, costs or best interest of the child. Judge Fee, the Chair of the DRC, believe that judges should be allowed to require parties participate in PTC. Some of the members felt that it should only be used by consent of the parties.

Although judges can order parents to high conflict classes or alternative measures they have not been able to order parents to PTC. There are currently cases before the Indiana Court of Appeals challenging orders to PTC. A decision last year has led to some confusion among judges about their authority to mandate PTC.

The 15 November 2010 decision is being read two different ways. 1) That the Court of Appeals said that Mother consented at the trial level so therefore it was not imposed upon the parties without consent and consent is still required; 2) That the Father in this case did not consent and since the Court of Appeals upheld the trial court that is interpreted as the court does not need the consent of both parties. However, I content that when the Father did not object at the trial court level or, in the alternative, later join Mother on the appeal then he did consent. Thus consent is still required.

Some public comment related to the term of the Parenting Coordinator and the six-month rule. Commentary was added to Rule 3 which includes, "This time period is necessary in order to give the Parenting Coordinator and the parents sufficient opportunity to become acquainted and to give the process a chance. The appointment is intended as a non-adversarial child-focused dispute resolution process."

Another major concern was the financial costs and who would be responsible or how the costs would be apportioned. Some of the commentary to Rule 3 reads, "The costs related to the appointment of the Parenting Coordinator be established through a private agreement between the parties and the Parenting Coordinator. The Parenting Coordinator may accept or establish a sliding fee scale based on the parties' respective incomes. The court also has the discretion to apportion the fee between the parties.

There has been concern that once PTC is effected that the parties lose access to the court. Commentary to Rule 4 has been added which reads;
The court does not relinquish its decision-making powers with the appointment of a Parenting Coordinator. The Parenting Coordinator may not unilaterally modify an existing order or parenting plan. Amy modification or major change recommended by the Parenting Coordinator and agreed to by the parties should be submitted to the court as set forth in Rule 7 below.

The PTC coordination process will still require the consent of the parents before it can be ordered.

Rule 4.10 was also amended and now reads;
If any of the Parenting Coordinator's recommendations are not accepted by one or all of the parties, a Parenting Coordinator may file and submit a written report to the court, the parties and the parties counsel. The written report shall include an explanation as to how the recommended change is expected to benefit the family as a whole.

The Committee also noted a distinction between mediation and PTC in the commentary to Rule 4;
There are similarities between a mediator and a parenting coordinator. The mediator's role is to assist the parties in identifying issues, reducing misunderstanding and finding points of agreements. The issues are finite. The Parenting Coordinator has a similar role, only the issues are infinite. The scope of the Parenting Coordinator's duties far exceeds that of a mediator.

I will be recommending a change to Rule 5.7 which currently reads;
The Parenting Coordinator shall be alert to the reasonable suspicion of any acts of child abuse or neglect, or of domestic violence directed at the other party, a current partner, or a child. The Parenting Coordinator should adhere to any protection orders, and take whatever measures may be necessary to ensure the safety of the parties, a child and the Parenting Coordinator."

What I propose is;
The Parenting Coordinator shall be alert to the reasonable suspicion of any acts of child abuse or neglect, or of domestic violence between the parents or directed at another party, including a parent, a current partner, or a child. The Parenting Coordinator should adhere to any protection orders, and take whatever measures may be necessary to ensure the safety of the parties, a child and the Parenting Coordinator."

Mutual Domestic Violence is present in a very large portion of DV cases. Mutual DV has a significant impact on a family dynamic and a child just as unilateral DV does. I feel that it is important to acknowledge this specifically even though failing to do so should not limit a Parenting Coordinator from being alert to it.

The Rule 6.7 of the Draft version has been removed.

Rule 7 was basically rewritten in whole as follows;

7.1 A written agreement which seeks to modify a court order, signed by the parties and the parenting coordinator shall be filed with the court within 20 days, with copies of the report provided to the parties and their counsel. The report shall indicate disputed recommendations, if any. There shall be no ex parte communication with the court.

7.2 A parenting coordinator's recommendations, which are not agreed to by the parties, may be submitted as a written report to the court for consideration. Copies of the document submitted shall be provided to the parties, their counsel and the parenting coordinator. The written report shall include an explanation as to how the recommended change is expected to benefit the family as a whole.

7.3 Any party may file with the court and serve on the Parenting Coordinator and other parties an objection to the Parenting Coordinator's report within ten (10) days after the report is filed with the court or within another time as the court may direct.

7.4 Responses to the objections shall be filed with the court and served on the Parenting Coordinator and other parties within ten (10) days after the objection is served.

7.5 The court upon receipt of a report and recommendations may take any of the following three actions.

7.5.1 Approve the recommendation

7.5.2 Reject the recommendations in whole or in part.

7.5.3 Take no immediate action upon the recommendation.

These proposed rules should provided a major step in assisting parents who are unable to overcome their personal differences which are detrimental to the children. Input from the public is needed and is highly valued by the Committee. I cannot stress enough that the Committee does listen to what the public has to say. You may make comment through the form provided here through 26 May 2011. If you would like to make comment to me instead I will blend that into my comments. Please do so by 3:00 pm on the last day, 26 May 2011.

Comments are due no later than 26 May 2011!!!

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

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

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