Indiana Court of Appeal Reverses Shared Parenting Order Today

In Bailey v Bailey published today the Indiana Court of Appeal reversed an order of the Fulton Circuit Court, Special Judge Richard Maughmer presiding, that provided that parents would have joint legal custody and 50/50 parenting time. This was a modification of the existing parenting time order although no petition was before the court to modify parenting time or custody. The court made the changes under the auspices of the Parallel Parenting provision of the 2013 Indiana Parenting Time Guidelines when the parties appeared for mutual actions for contempt.

These were high conflict parents. During the proceedings, there were approximately five contempt actions, one protective order, one request for emergency custody, one petition for modification of custody, one petition for restricted visitation, five attorneys, and two judges.

Judge Maughmer should be commended for taking the position ordering these parents into 50/50 parenting time and joint legal custody. While some trial courts have taken an approach to hostile or embattled parents by granting primary physical and sole legal custody to one parent to mitigate opportunities for conflict that may be ignoring the best interest of the child. Sometimes the parent who has instigated or perpetuated the conflict has been the one receiving the greater rights and responsibilities. Our reviewing courts have shunned this idea.

In 1996 a panel of the Indiana Court of Appeals noted that “Allowing modification of custody in favor of one whose misbehavior has led to the supposed 'substantial change,' in circumstances rewards misconduct and should therefore be avoided.”[fn1] A few years earlier the court expressed its rationale for awarding sole custody and primary parenting time to one parent in high conflict cases.

In 1992 a panel of the Indiana Court of Appeals in arriving at its decision noted that “obstreperous parents sharing legal custody would have significant difficulties reaching a consensus on such fundamental issues as child-rearing philosophies, religious beliefs, and lifestyles.[fn2] When divorced parents are charged with making major decisions as a unit, it is apparent that a relationship filled with hostility and resentment presents a significant obstacle. It follows, therefore, that when child-rearing becomes a 'battleground,'[fn3] modification of joint legal custody is a sensible step to take for the best interests of the children.”

One of our justices explained it this way;
Every day in our State, trial courts engage in the fact-finding process of determining which of two parents—oftentimes, both parents who have behaved poorly—is the better choice to serve as a primary physical custodian. All too often, this involves determining who between two parents is the lesser of two evils—which parent is least likely to poison the children and alienate them from their other parent. The majority’s opinion permits sidestepping this process and allows the trial court to “split the baby.” I would reverse on this issue and remand to the trial court with instructions that it award sole legal and physical custody of the children either to James or Jane and grant the other parent parenting time scheduled in a manner that is conducive to the best interests of the children.[fn4]

I contend that those positions are in error, especially given that at least one of the parents who engages in making child rearing a battleground will get rewarded with sole legal and primary physical custody. Concurrent with that is the risk that the parent who so benefits may be the one who instigated the culture of conflict. I believe that it also ignores the best interest of the child. It was this position that was advanced and held while the Domestic Relations Committee was reviewing the Indiana Parenting Time Guidelines which were amended in March 2013 to include a parallel parenting section.

In 1989 and cited again in 1994 two other panels of the Indiana Court of Appeals adopted the concept of Parallel Parenting when they held, “We must realize that, by allowing [families] to rely on the courts to settle such disputes, we deprive families of the opportunity to work out their problems and be the shapers of their own destinies. To the extent that we usurp the natural functions of the family unit – including handling fallings out – we put an obstacle in the path of reconciliation rather than removing one. By acting as we do, we assume the responsibility for the decisions that would be made entirely internally in a family if it were still intact. If warring family members can blame the court, they will be less likely to recognize and acknowledge their own culpability. Without a feeling of responsibility for, or participation in, either the decision or the result, there is less incentive for the individual family members to improve relations.[fn5]

In the immediate case though the panel reversed the trial court's order of Shared Parenting which modified the prior parenting time order. This is because the parties appeared before the court on dual motions for contempt. The panel articulated its holding in citing “[l]ongstanding Indiana law” which “has prohibited trial courts from sua sponte ordering a change of custody.”[fn6] When such an important issue as the custody of children is involved, a modification generally can be ordered only after a party has filed a petition requesting such a modification, the other party has notice of the filing, and a proper evidentiary hearing is held at which both parties may be heard and the trial court fully apprised of all necessary information regarding change of circumstances and a child’s best interests before deciding whether a modification should be ordered.

While it appears that the trial court was correct in its determination of Shared Parenting through a Parallel Parenting plan it suffered from basic due process requirements.

Notes
1] Meade v. Levett, 671 N.E.2d 1172, 1177 (Ind. Ct. App. 1996).
2] Aylward v Aylward, 592 N.E.2d 1247, 1251-52 (Ind. Ct. App. 1992).
3] id at 1252
4] Dissent of Vaidik in Van Weirten
5] McKay v. McKay, 644 N.E.2d 164, 167 (Ind. Ct. App. 1994) (quoting Milne v. Milne, 556 A.2d 854, 856 (Pa. Super. Ct. 1989)) (alteration omitted).
6] See In re Marriage of Henderson, 453 N.E.2d 310, 315 (Ind. Ct. App. 1983) (quoting State ex rel. Davis v. Achor, 225 Ind. 319, 327, 75 N.E.2d 154, 157 (1947)).

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