27 October 2013 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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As the Domestic Relations Committee of the Indiana Supreme Court undertakes the process of revising the current Indiana Child Support Guidelines I will be seeking input from parents as well as providing some contextual background to them regarding Indiana's child support payment scheme. In this posting I present the reasoning behind a recent Indiana Supreme Court decision regarding the balancing of parenting time and child support. The decision in Perkinson v Perkinson [989 N.E. 2d 758 (Ind. Ct. App. 2013)] was rendered by the court on 25 June 2013.
The decision, written by Justice Steve David, begins with the following paragraph. “The concept of parents negotiating away parenting time as a means to eliminate the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy.”
That particular agreement provided that Father agreed to waive his parenting time rights in exchange
for Mother assuming sole financial responsibility and waiving enforcement of Father’s child support arrearage. The INSC was not impressed with the actions of these 'parents'. The Court wrote-
It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying child support. It has long been established by this Court that “[a]ny agreement purporting to contract away these [child support] rights is directly contrary to this State’s public policy of protecting the welfare of children.” Straub v. B.M.T., 645 N.E.2d 597, 600 (Ind. 1994). See also Trent v. Trent, 829 N.E.2d 81, 86 (Ind. Ct. App. 2005). In Halum v. Halum, 492 N.E.2d 30, 33 (Ind. Ct. App. 1986), the Court of Appeals held that a “custodial parent may not bargain away the children’s right to support.”
A long line of cases has long established that child support payments are for the exclusive use of the children and that a parent receiving support payments does so on the child's behalf. That parent has a fiduciary responsibility to the child to administer the financial contributions from both parents for the benefit of the child. This precludes a parent from negotiating away the child's right to those payments. “It is well established that the right to child support lies exclusively with the child and that a custodial parent holds the support payments in trust for the benefit of the child.” Sickels v. State, 982 N.E.2d 1010, 1013 (Ind. 2013). Custodial parents who receive child support funds act as a trustee, and, “as a constructive trustee, [the custodial parent] may not contract away the benefits of the trust.” Nill v. Martin, 686 N.E.2d 116, 118 (Ind. 1997). To do so would violate the fiduciary duty the custodial parent owes the child in relation to any child support funds. The Court of Appeals previously held, “[v]isitation rights and child support are separate issues, not to be comingled. A court cannot condition visitation upon the payment of child support if a custodial parent is not entitled to do so.” Farmer v. Farmer, 735 N.E.2d 285, 288 (Ind. Ct. App. 2000).
The INSC touched upon the lack of fitness of these parents by noting what so many children in custody litigation are subjected to – “Every child deserves better than to be treated as nothing more than a bargaining chip.” Thus a parent who seeks to negotiate support payments contingent upon parenting time could be presumed to be not acting in the best interest of the child. This may be in one of two common ways of which one is the circumstance specifically addressed by this decision.
The first is that, as in this decision, if you will give up some parenting time I won't seek as much in support. This is in direct opposition to the ICSG which base support on parents income and an inverse correlation model between parenting time and child support payments. That is, the less parenting time a parent exercises the more support one is required to pay as less direct support is provided during the reduced parenting time. This also contravenes the fiduciary obligation of the parent receiving the child support payments. “It is well established that the right to child support lies exclusively with the child and that a custodial parent holds the support payments in trust for the benefit of the child.” Sickels v. State, 982 N.E.2d 1010, 1013 (Ind. 2013). A parent may not contract away that right on behalf of the child.
The second is when a parent requests excessive child support payments as a condition for additional parenting time. Again, this is in direct opposition to the ICSG which base support on parents income and an inverse correlation model between parenting time and child support payments. That is, the more parenting time a parent exercises the less support one is required to pay as more direct support is provided during increased parenting time. The same fiduciary responsibility applies which would compel the custodial parent to actually use all additional funding for the child.
The trial court in the present case makes a finding that parenting time “would not be in the child’s best interest and would create significant emotional harm to her” but provides insufficient facts to support its finding other than its footnote asking “How do you explain to a six (6) year old that her Father exchanged time with her for money?” The Indiana Supreme Court rightly noted what the trial court appeared to have overlooked – “As horrific as that rhetorical question is, Mother agreed to it. And Mother’s attorney prepared the documentation.” So, the contrary question becomes, “how do you explain to a six (6) year old that her Mother offered money to her Father to get out of her life?”
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Monday, October 28, 2013
Prohibition on Negotiating Parenting Time and Child Support
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