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COA rules on parenting time restriction

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Indiana Court of Appeals judges had differing opinions as to whether the trial court was required to enter findings during a hearing in which a mother's parenting time was restricted. One judge believed because she was granted parenting time, the court didn't have to enter findings pursuant to Indiana Code, and she can't challenge the court's failure to make any findings.

Judge Terry Crone wrote in his dissent that Indiana Code Section 31-14-14-1 requires the trial court to enter findings only when it denies any parenting time to the noncustodial parent. Judges Elaine Brown and Melissa May interpreted that statute to require a court to make a specific finding of physical endangerment or emotional impairment before restricting a noncustodial parent's visitation.

"To equate reasonable parenting time with the full panoply of visitation rights pursuant to the Parenting Time Guidelines and to allow a deviation therefrom only in situations where there is child endangerment would severely limit a trial court's ability to fashion a visitation schedule that best suits the situation of the parents involved. Such a result would be ill advised," wrote Judge Crone.

In T.W. v. S.N. III, No. 49A05-0903-CV-138, mother T.W. appealed the trial court's grant of a petition to modify child custody granting father S.N. III physical custody of their teenage son. She also argued the trial court abused its discretion by limiting her parenting time. The trial court found it would be in the best interests of the son to live with his father in Indianapolis, and the Court of Appeals unanimously agreed.

But Judges Brown and May agreed with the mother regarding the parenting time limitations and remanded for the court to either enter an order containing sufficient findings to support a visitation restriction or enter an order that doesn't contain a visitation restriction. After granting physical custody of their son to his father, the trial court ordered T.W. to have parenting time pursuant to the Indiana Parenting Time Guidelines, with the exception she only have one weekend a month of parenting time.

The majority found the restriction to be an error because the trial court didn't release a finding that a restriction was warranted. Using Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003), the majority determined the use of the word "might" in I.C. 31-14-14-1 means the court can't restrict visitation unless it would endanger the child's physical health or well-being.

Judge Crone argued because T.W. was granted parenting time, the court wasn't required to enter findings pursuant to statute, so she can't challenge the court's failure to enter such findings.

"Mother may challenge only whether her parenting time is reasonable. Based on the record before us, including evidence regarding the significant geographical distance between Mother and Father, I conclude that it is," he wrote.

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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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