Friday, January 18, 2013

Domestic Relations Committee met today to review implementation and application of the 2013 Amended Indiana Parenting Time Guidelines

On 04 January 2013 the Indiana Supreme Court approved the Amended Indiana Parenting Time Guidelines that will become effective on 01 March 2013. The amendments are not applied retroactively. This is indicated under Preamble (C)(2) Scope of Application -
Amendments “Existing parenting time orders on the date of adoption of these amendments shall be enforced according to the parenting time guidelines that were in effect on the date the parenting time order was issued. Changes to the Indiana Parenting Time Guidelines do not alone constitute good cause for amendment of an existing parenting time order; however, a court or parties to a proceeding may refer to these guidelines in making a change to a parenting time order after the effective date of the guidelines.”

The Commentary to this section provides:
“Parents who agree that current changes to the Indiana Parenting Time Guidelines are in their child's best interest should file written agreement with the court for approval. Parents may agree to some or all of the changes to the Indiana Parenting Time Guidelines and should be specific in their written agreement.”

I have been speaking to judges about their interpretation as to applying the modified IPTG prospectively and received varying opinions. All agree that adoption of the amended IPTG to current cases must be in the best interest of the child. Where it becomes ambiguous is the specific language, “Changes to the Indiana Parenting Time Guidelines do not alone constitute good cause for amendment of an existing parenting time order”. Does this imply that there must also be a substantial change in one of the enumerated factors under IC 31-17-2-8? Listening to the members of the committee discuss the matter provided little clarity either.

The Indiana Supreme Court explain in Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008), that the factors to be considered in both an initial custody determination and a modification of a custody order are essentially the same. In particular, the Baxendale court observed that:
The general provision governing custody modifications is found in section 31-17-2-21. Modifications are permitted only if the modification is in the best interests of the child and there has been “a substantial change” in one or more of the factors identified in Section 8 as considerations in the initial custody determination.

The crux of the argument for adopting the amended IPTG [2013 Guidelines] is whether the amendments constitute a “modification of custody”. What I am hearing from judges thus far varies. Some view that the adoption of the 2013 Guidelines is not making a change to the custody order such as from joint legal to sole legal or making Sunday an overnight for the NCP and then requiring that parent to provide transportation to school. Others though view the 2013 Guidelines as making a change to parenting time when the current order adopts the IPTG. In a technical sense the 2013 Guidelines do change the parenting time order. Simply look at the winter break schedule that many parents agreed to adopt this past year. It changed the parenting time. When faced with a contested modification all judges seem to agree that they inherently have the authority to apply the 2013 Guidelines prospectively. That is, they can now be ordering that the 2013 Guidelines go into effect for the particular case on 01 March 2013.

I feel that the matter of the burden for meeting the requirement for a modification may end up being resolved by the Indiana Court of Appeals and very likely I'll be involved in the case. I can see one of the parties in a high conflict case – the area in which I specialize – taking this to that level just because the other parent adopts the alternative position on applicability.

The Spring Judicial Conference will be held on 17-19 April 2013. I would like to raise this issue for discussion at the conference to see if there can be consensus on application of using the 2013 Guidelines to amend current custody orders.

The next meeting of the Domestic Relations Committee is scheduled for 15 February 2013, 10:30 a.m. at the Indiana Judicial Center, 30 South Meridian Street. Members of the public are welcome to attend but these meetings are not public input sessions.

I offer assistance to parents who would like to have the 2013 Guidelines applied to their current custody order whether by agreement or contested and also whether represented by an attorney. If you would like to change your custody order to adopt the 2013 guidelines then please visit my website and contact my scheduler to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

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

©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

1 comment:

Timon berg said...

Wasp dudes! Awesome stuff keep it up.
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