Friday, November 29, 2013

Indiana Court of Appeals reverses Domestic Violence supervised parenting time order pursuant to IC 31-17-2-8.3

29 November 2013

The Indiana Court of Appeals in a published opinion on 27 November 2013 gave Glenn Hatmaker something to which he is most thankful. In that opinion the justices reversed an order for supervised parenting time order pursuant to IC 31-17-2-8.3 based upon a Domestic Violence conviction. The opinion in Hatmaker v Hatmaker written by Justice Bailey remanded to the trial court the matter of entering a parenting time order consistent with statutory law and the best interest of the children. Marion Superior Court Judge David J Dreyer denied Mr Hatmaker's motion to correct error citing statutory requirements to lift the supervision restriction.

The father, Glenn Hatmaker, after being convicted[fn1] of Domestic Battery against his then current wife was ordered to undergo anger management and parenting classes while his parenting time was supervised by a local agency for two hours per month.

As an aside it is interesting to note that the instructional foundation of the Domestic Violence class was based upon the discredited Duluth Model. “Abusers” was strictly correlated to males while “victims” was strictly correlated to females. All of the participants in the class were male with a disproportionately high level of African American males as compared to the general population within the court's jurisdiction.

Father, as did the other participants did not speak up about the flawed structure of the class but, successfully completed the anger management classes and after more than two years following the conviction he petitioned to have his parenting time unsupervised. He also sought a modification of child support payments which I do not address here. The court denied his petition and reiterated its prior supervised parenting time order but noted that father could have unsupervised parenting time “upon agreement of the parties at any time.” That is, said another way, mother could agree with father at her discretion to allow him to have unsupervised parenting time. In essence, the court relinquished its' authority and instead allowed her to prospectively make a parenting time modification consistent with the best interest of the child. This is simply not allowed.

The basis for the supervised parenting time was IC 31-17-2-8.3 which provides that following a conviction for Domestic Violence wherein such violence by a NCP was witnessed or heard by the child that parent's parenting time shall be supervised for a period of at least one year but not more than two or until the child is emancipated, whichever occurs first. Since it had been greater than two years the court had to then operate under IC 31-17-4-1(a) if it was to continue to restrict parenting time. This statute, as interpreted[fn2], provides that a court may not restrict parenting time unless there is a showing that the parent would “endanger the child's physical health or significantly impair the child's emotional development.” In the immediate opinion the appellate panel found that “supervised parenting time constitutes such a restriction.” Thus, mother who requested the supervision bore the burden of demonstrating that father was a danger to the child. The panel opined that such a burden had not been met as the trial court had not found father to be a danger to the child. Therefore, remand to the trial court to either enter and order based upon findings that father was a danger to the child or lift the restriction.

Father included in his argument that he could not afford the costs associated with supervised parenting time and his time had been reduced to two hours per month prior to the agency contending that it could no longer facilitate that time. Father claimed that the financial burden and limited availability amounted to a de facto restriction on his parenting time and as such should be lifted. The panel disagreed noting that the court is bound to make a determination based upon the best interest of the child not the parent's ability to pay. In dictum the panel noted that in such circumstances courts should look to a “grandparent, relative, or child advocate volunteer supervisor” as sources of supervision. The panel concluded that “[t]he order is erroneous, as it is internally inconsistent and in contradiction to statutory authority.”

In what I feel is an extremely important acknowledgment that I have not seen in prior rulings the panel addressed the matter of both parents contributing to the costs of supervised parenting time. The panel noted that since mother had a substantially higher income than father that if, on remand, the court finds that supervised parenting time is in the child's best interest it should find alternate low or no cost supervision or apportion some cost to mother.

While some may argue that this would make the victim financially responsible for being victimized I disagree. The purpose of the supervision is not to punish a parent by imposing a financial burden nor is it meant to reduce the amount of parenting time that one should otherwise have with the child. Rather supervision is only intended to facilitate parenting time in a safe manner that promotes the ongoing relationship between parent and child which is presumed to be in the child's long-term best interest. In much the way married parents would contribute to the costs associated with their child who had been abused without assessing blame as to who allowed the perpetrator to have contact with the child neither should such blame be assessed here. The focus is rightfully on the child and what is in the child's best interest. As parents both mother and father should be financially responsible to contribute to the necessary emotional development of the child.

Glenn Hatmaker feels very encouraged for the relationship between himself and his daughter. He feels that the “tide is turning” after years of succumbing to injustices by the courts averring to a self-delineated purported truth. In an optimistic tone Mr Hatmaker offers these words of encouragement to other parents enduring a fractured relationship with their children, “perseverance is now paying off.” He says his focus is now “towards re-establishing a normal relationship with my daughter.”

May and Bradford concurred in the opinion.

[fn1] While the opinion makes reference to the trial court's finding that Mr Hatmaker had been “tried and convicted” the conviction was actually the result of a plea agreement.
[fn2] Although the statute uses the word “might” the reviewing courts have consistently interpreted that as “would”. D.B. V M.B. 913 N.E. 2D 1271, 1274 (Ind Ct App 2009)

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