Monday, June 27, 2011

Divorce does not absolve parents of responsibility

While counseling parents in high conflict relationships I am often confronted with the claims by a parent that he or she can't make the child do something the child doesn't want to. It is as though these parents now want me to believe that minor children of divorced parents are no longer the subjects of parental authority as are the children of married parents – something I just won't buy into.

This is often a very telling indication of what type of parent I am facing – an irrational one. This is precisely the reason the parents are in a high conflict relationship – one or both is irrational. To demonstrate the irrational philosophy about parenting the following colloquy usually occurs:
Me: So your children refuse to follow the parenting time order?
Parent: Yes, they just don't want to.
Me: Do you ever get tired of being their slave?
Parent: What do you mean?
Me: You know, taking them wherever they want, cleaning up after them, serving their every need since they have no assigned chores.
Parent: No they have responsibilities around the house.
Me: Well sure, when they are there I guess but aren't they out most nights?
Parent: No, they are at home every school night.
Me: School? Do they go?
Parent: Well yes.

This is when I get into some long diatribe about what a wonderful model parent I am speaking with and how I want this person to do “parenting seminars” with me so they can teach other parents how to raise a teenage child like theirs'. One who wants to do chores, who wants to be at home in the evenings doing homework, who wants to go to school and who wants to obey the commands and rules of this parent so much that it is no longer a rule but a desired way of life.

After this parent is done wiping the sarcasm from his or her face I usually get a natural response like, “Oh, I get it.” Quite simply getting divorced does not absolve a parent from a responsibility to ensure that the children are properly disciplined and respect the commands of the parent. It is rarely a problem in married households where the minor children get to decide which rules they will follow. Yet, in households led by some divorced parents the parent seems to behave as though the child is the one making the rules.

This may be the result of laziness, trying to win the affections and allegiance of the child or, as in the case I present today, an intentional effort to alienate the child from the other parent. Today's case comes from a recent unpublished opinion by the Indiana Court of Appeals.

The trial court found -

[Mother]'s testimony that she desires the [C]hildren to have a relationship with their father is not credible. [She] has interfered with parenting time and has consciously and subconsciously undermined the relationship between the [C]hildren and their father.
[Father] shall have regular email and phone contact with [K.N. and L.N].
[Mother] shall have no phone contact with [K.N. and L.N.] during the weekend parenting time in Indianapolis.
[K.N. and L.N.] shall have the right to earn one phone call per day with [Mother] during the full week parenting time based upon their behavior.
[Mother] shall impose consequences on [K.N. and L.N.] if they refuse to speak on the phone or email [Father].

Mother asserts that the trial court abused its discretion in modifying parenting time. Specifically, she argues that the trial court improperly ordered that 1) L.N. and K.N. shall earn the right to speak with Mother on the telephone; 2) Mother shall impose consequences on L.N. and K.N. for refusing to communicate with Father; and other unrelated issues. Mother also asserts that the trial court improperly found her in contempt.

Mother asserts that the trial court abused its discretion in ordering her to impose consequences upon L.N. and K.N. if they refuse to communicate with Father. She maintains that “[a]dministering consequences to a child for bad or inappropriate behavior is within the sole discretion of a party,” and the trial court's directive “is nothing more than a method for the court to punish the children for noncompliance with the court's order.”

The Court rejected Mother's argument citing the reasoning by the court in MacIntosh. There the court acknowledged that although a visitation order “necessarily direct[s] the conduct of the children affected by the marital dissolution,” the order is “not enforceable against the children” as the parents are the parties before the court. MacIntosh v. MacIntosh, 749 N.E.2d 626, 630 (Ind. Ct. App. 2001). Thus it is the duty of the parent to ensure that the children comply with the order.

The MacIntosh court went further in stating that a custodial parent may not “justify inaction simply because a child refuses to cooperate with a visitation order.” MacIntosh v. MacIntosh, 749 N.E.2d 626, 630 (Ind. Ct. App. 2001); Norris v. Pethe, 833 N.E.2d 1024, 1031 (Ind. Ct. App. 2005). The Indiana Parenting Time Guidelines state this clearly in that “each parent shall be responsible to ensure the child complies with the scheduled parenting time. In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.” IPTG § I(E)(3).

It has long been held that parents are responsible for the behaviour of their children which was recently affirmed in Norris – “our established case law . . . expects parents to control their minor child's behavior and attitude” Norris v. Pethe, 833 N.E.2d 1024, 1031 (Ind. Ct. App. 2005). Accordingly, the court in the immediate case found no abuse of discretion in ordering Mother to impose consequences for the failure to L.N. and K.N. to cooperate with the trial court's parenting time order.

Finally, Mother asserts that the trial court abused its discretion in finding her in contempt and therefore ordering her to pay Father's attorney's fees in the amount of $6,500.00 as a sanction. Mother contends that “there is no evidence to support the court's determination that [she] willfully disobeyed the court's orders regarding parenting time.” Rather, she maintains that the “[C]hildren have not abided by them.” This is a proposition that the court has soundly rejected.

The Court of Appeals in upholding the trial court found that the “evidence does support an award for attorney's fees and expenses incurred due to Mother's contempt. We therefore find no abuse of discretion in awarding $6,500.00 to compensate Father.”

In summary, Mother obstructed Father's parenting time with the children for months, called them repeatedly on the phone while with Father, maintained that it was not her responsibility to ensure that the children go to Father's for his parenting time with them and, generally, did not foster Father's relationship with the children.

Just as it is the responsibility of a married parent to ensure that his or her children comply with compulsory education laws, maintain their behaviour in manners generally acceptable by society and follows the laws, so is it for divorced parents. Divorced parents who decide that they will not enforce standards of behaviour upon their children, for whatever reason, are doing a disservice to the children.

Ultimately, failing to ensure that children participate in parenting time is contrary to the Indiana Parenting Time Guidelines and, likely, contemptuous of the court's orders.

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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.

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