The Indiana Supreme Court had harsh words Tuesday for parents and attorneys who enter into agreements that stipulate giving up parenting time in lieu of paying child support. There must be extraordinary circumstances to justify denying parenting time.
“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,” Justice Steven David wrote in Michael D. Perkinson, Jr. v. Kay Char Perkinson, 36S05-1206-DR-371.
When Michael D. Perkinson and Kay Char Perkinson divorced in February 2006, they entered into an agreement in which Michael Perkinson would waive his parenting time rights to daughter L.P. in exchange for Kay Perkinson assuming sole financial responsibility and waiving enforcement of the father’s child support arrearage. If he sought parenting time in the future, he would have to pay any arrearage through the date of the approval.
Beginning two years later, father sought modification of parenting time, but each petition was denied by the trial court. The Court of Appeals reversed and remanded.
“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,” David wrote. “Just as allowing an agreement purporting to contract away a child’s right to support must be held void, an agreement to contract away a child’s right to parenting time, where the presumption that such parenting time is in the child’s best interest has not been defeated, must also be held void as a matter of public policy. Every child deserves better than to be treated as nothing more than a bargaining chip.”
Extraordinary circumstances must exist to deny parenting time to a parent, which necessarily denies the same to the child. Looking at the case before them, mother didn’t offer any evidence, such as therapist reports or expert testimony to show that parenting time between her ex-husband and L.P. would not be in the child’s best interest. The only evidence regarding endangerment was the testimony of the mother.
The trial court has many tools at its disposal, such as ordering phased-in professionally guided supervised visitation at father’s expense or the appointment of a GAL or CASA to investigate and make recommendations to the court.
The case is remanded for more proceedings.