Monday, February 13, 2012

Amendments to Indiana Parenting Time Guidelines - Exchanges and Additional Time

After a two year process the proposed revisions to the Indiana Parenting Time Guidelines [IPTG] have now been posted on the Indiana Judiciary web-page. The Domestic Relations Committee of the Indiana Judicial Center [DRC] -- the body responsible for writing the IPTG -- will be accepting public comment on the proposed revisions until Monday, 26 March 2012 .

For the past two years I have been attending the DRC meetings and presenting proposals or providing feedback as requested. I will be analyzing each of the amended sections individually and providing commentary. Today I continue with my third posting - Exchanges and Additional Time.

The exchange of children for parenting time is an important event in many aspects. As the IPTG suggest this is a good time for parents to exchange information and engage in any discussion about the needs of the child. There is also an unspoken yet very important dynamic to parenting time exchanges -- demonstrating to the children that what brought them to go their separate ways was not the children and that when it comes to the children the parents can set aside past conflict to facilitate an orderly exchange. And so I dream on.

One of the most common questions I get asked is 'How much time do I have to wait when the other parent is late?" To this I generally say 15 minutes. Things happen -- traffic snarls, someone won't stop talking or your lose track of time. Common courtesy says make a call to the other parent. High conflict parents rarely embody the spirit of courtesy though. There are also those parents who are intentionally late just for the purpose of tormenting the other parent while not being cognizant of the effect on the child -- projecting the message that the child's schedule, thus the child, is not a high priority.

After careful discussion and deliberation it was settled upon amending the portion of the IPTG relating to punctuality. The intent is to provide guidance in resolving the tardiness of a parent and also discourage the intentional acts.

Here is the proposed -- revised in bold type -- portion: Punctuality

Punctuality. Each parent shall have the child ready for exchange at the beginning and at the end of the scheduled parenting time and shall be on time in picking up and returning the child. The parents shall communicate as early as possible regarding any situation that would interfere with the timely exchange of the child. Both parents have a duty to communicate any time the exchange is delayed. When no communication is initiated by the delaying parent, and pick up or return of a child does not occur within a reasonable time, the time and conditions of the exchange may be rescheduled at the discretion of the parent not responsible for the delay.

With this language added the parent who is inconvenienced no longer has to keep waiting, return or wait until the inconsiderate parent decides to facilitate parenting time. The inconvenienced parent will be given the power to decide when the exchange shall occur.

Most non-custodial parents embrace the opportunity for additional parenting time while some custodial parents steadfastly seek to obstruct any such opportunities for the child. This is another area that has confused many and elicited questions by my clients.

The reviewing courts have provided some guidance on when the opportunity for additional parenting time must be offered. Consistent with these rulings and upon discussion about the input from the community the DRC has provided clarification.

Here is the proposed -- revised in bold type -- portion: Opportunity for Additional Parenting Time

Opportunity for Additional Parenting Time. When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences. The other parent is under no obligation to provide the child care. If the other parent elects to provide this care, it shall be done at no cost. and without effecting child support. The parent exercising additional parenting time shall provide the necessary transportation unless the parties otherwise agree.

The original intent of this section was to give the other parent more time with the child if the parent who had the child at the time needed to have an additional party provide care for the child. It was not intended to foreclose having a family member such as sibling or subsequent spouse providing that care. It was also not meant to be triggered merely by the event of needing care but that such care would be for such a great amount of time that it would justify removing the child from one residence to the other.

In this regard I have heard it all. Keep in mind that I specialize in high conflict custody cases. I have had parents want to file contempt on the other for having the child cared for by the staff at a gym in their play facility while the parent worked out for a half hour. Others have complained of subsequent spouses tending to the child or that grandparents came to the house to do so. There has been the absurdity of a parent 400 miles away not getting notified about a three hour period of hired child-care and wanting to file for contempt.

Arguments regularly erupt over who is a "family member". The courts have interpreted that as being someone who lives in the household not a grandparent, cousin or other, who in some cases may have required a further drive than to the other parent's home to provide the care. The proposed amendment, consistent with the higher courts rulings, now states that the family member must reside in the household.

There has also been consideration given to the reasonableness of the time which will trigger the opportunity for additional parenting time. I have generally espoused the view that if the transportation time does not consume more than one-fourth of the total time that care is needed then it should trigger. "Reasonableness" will always be subject to interpretation but I feel that my guidance is quite on point as it is usually based upon actual court cases.

Finally, so as to eliminate any argument the Guidelines, as proposed, will place the transportation burden on the parent exercising additional time unless the parties agree. As a whole this section is written without regard to the custody status of the parents. It is applicable to the NCP who has the same responsibilities when he or she needs outside care during his or her more limited parenting time.

Here is the revised commentary in its' entirety --

The rule providing for opportunities for additional parenting time promotes the concept that a child receives greater benefit from being with a parent rather than a child care provider. who is not a household family member. It is also intended to be practical. When a parent's work schedule or other regular activities require hiring or arranging for a child care provider, who is not a household family member, the other parent should be given the opportunity to provide the care.

Distance, transportation or time may make the rule impractical. The period of absence which triggers the exchange will vary depending upon the circumstances of the parties. Parents should agree on the amount of child care time and the circumstances that require the offer be made. It is presumed that this rule applies in all cases which the guidelines cover; however, the parties or a trial court may, within discretion, determine that a deviation is necessary or appropriate. Any such deviation must be accompanied by a written explanation. See Shelton v. Shelton, 840 N.E.2d 835 (Ind. 2006).

This section is sometimes mistakenly referred to as the “right of first refusal.” It is more accurate to refer to this section as an opportunity to exercise additional parenting time.

The commentary is rather self-explanatory so I won't go into detail about it. The one point to make is on the closing paragraph. This rule is often incorrectly, or possibly wrongly, referred to as the “right of first refusal.” However, it is more accurately an opportunity for additional parenting time. This important language distinction denotes the importance of parenting time.

The next section will cover sharing information.

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1 comment:

Jason Amet said...

I am looking for some clarity on the "opportunity to exercise additional parenting time". The father of my girlfiend's daughter refuses to accept our relationship and invokes this right during our parenting time when she is at work. I know that the courts have defined what a family member is and we do live together but again our relationship has not advanced to the next level. However the child does see us as a whole family unit and it is very disheartning to be told that I can not care for her. However I believe that he is abusing this right as when he comes to get her, he does not utimately use the time to spend with her. He just takes her to be watched by his wife while he himself goes to work. While I disagree with what the legal defination of a family member is regarding this, I very much do not believe that the intent of this was right was just to have the child to be cared for by someone else. Correct me if I am wrong but the name of this right was "opportunity to exercise additional parenting time" meaning the actual parent should be watching the child as this is supposed to be parenting time.