Thursday, June 16, 2011

How to lose parenting time – Have an attorney that doesn't know Indiana child custody law

I tend to view myself as being quite knowledgeable about child custody law in Indiana. I attend all the meetings of the Domestic Relations Committee of the Indiana Judicial Center and I also write child custody law. Additionally, I read all of the higher court opinions as they relate to child custody law where I often see the same results; attorneys not being intimately familiar with child custody law.

Two days ago the Indiana Court of Appeals handed down another opinion where apparently an attorney had been deficient in his or her obligation to ensure that the client was well-advised about the child custody statutes and the Indiana Parenting Time Guidelines.

In this case Father's parenting time was described to the appellate court as: “overnight parenting time every other weekend, over some holidays, and for two weeks during the summer.” The opinion included a footnote about that schedule which read: “Father testified that until just prior to the hearing in this case, he was unaware of his right under the Parenting Time Guidelines to have the children for approximately half of the summer, and that if his counsel in the dissolution had advised him of such, he would have taken that extended parenting time.”

Here, Father and the children could have spent more time with each other but, according to Father, his attorney failed to inform him that he was entitled to a minimum of half the Summer with his children instead of two weeks. Apparently the trial court made no findings as to why Father received less than the IPTG minimums. From what I could glean from the appellate ruling it appears that it was an agreed entry.

The IPTG at Section II(B)(3) provide that extended parenting time for children age 5 and older is:
“One-half of the summer vacation. The time may be either consecutive or split
into two (2) segments. The noncustodial parent shall give notice to the
custodial parent of the selection by April 1 of each year. If such notice is not
given, the custodial parent shall make the selection.”

A few questions come to mind my mind about this situation –

What would a parent pay to get three additional weeks per year with his or her child?

How did this father find this attorney?

What were the attorney's qualifications to take on a child custody case?

What amount of money did this father pay to that attorney to get less than what the IPTG suggest as a minimum to maintain a suitable relationship with his child?

What is the potential psychological impact that this could have had on the child?

What is the prospect of this father getting half the Summer break with his child in the future?

I can't answer the first four questions but if you are in a similar situation then you certainly can. As for the last question I do have the answer for that.

Very unlikely. The reason for that is because it is the policy of the State of Indiana to bring child custody proceedings to a conclusion and maintain consistency for the child. “This doctrine is reinforced by the concern for finality in custody matters.” See Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind. 2008).

Thus, a parent seeking to modify a child custody order has a significant burden to overcome. That parent must show a substantial change in at least one of the factors that a court must consider under I.C. 31-17-2-8 and that the modification is in the best interest of the child. Here that just isn't likely to be the case. It is a long-held standard that a party is responsible for the oversights of his or her attorney.

So, onto the point I intend to make. It is extremely important that you start a child custody proceeding being as prepared as possible. That means being organizationally equipped, having knowledgeable counsel inclusive of an attorney if you are going to use one, knowing the pitfalls and being the best parent you can be.

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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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