ILNews

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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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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