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Trial court erred in terminating parenting time

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The Indiana Court of Appeals reversed the termination of a father's parenting time with his teenage daughters, finding the trial court erred because the decision wasn't supported by the record or statute.

In D.B. v. M.B.V., No. 32A01-0903-CV-110, father D.B. appealed the Hendricks Circuit Court's decision to terminate his parenting time based on the recommendation of the guardian ad litem that the father have no parenting time with his daughters.

Dr. John Ehrmann, who performed a custody evaluation and believed mother M.B.V. was trying to alienate D.B. from his children to punish him for his infidelity, testified at the hearing that he was concerned unsupervised parenting time would subject the father to the risk of false abuse reports and possible arrests. There had been a history of cross-accusations between the parents involving violence and stalking, and even the children had a history of food throwing and name calling with their father during their parenting time. D.B. once used his hand to break his daughter's windshield on her car.

The court-ordered visitation supervisor testified that although the children were initially reluctant to interact with their father, it improved over time, and she didn't believe the children were at risk.

The trial court ordered D.B. to abide by no-contact orders with regard to the mother and children, and to pay M.B.V.'s $14,000 attorney fees.

The Court of Appeals unanimously decided the trial court erred by denying the father's parenting time based on Indiana Code Section 31-17-4-2. Even though the statute uses the word "might" when talking about if parenting time endangers the child's physical health or emotional development, the appellate court has previously interpreted the statutory language to mean "would" endanger the child.

After examining previous cases when the court has either ruled to restrict parenting time or overturned a restriction, the Court of Appeals determined the record in the instant case involving the past interactions between the father and his children didn't approach the "the egregious circumstances in which we have previously found that parenting time may be terminated, such as when a parent sexually molests a child," wrote Judge L. Mark Bailey.

"Clearly, our parenting time statute does not provide for the elimination of parenting time because reunification counseling has proved unusually challenging or because teenagers do not wish to interact with a parent while accepting substantial financial benefits from that parent," he wrote.

The record does support an order for supervised parenting time, which would be appropriate given the volatile relationship between the parties, the children's ages, and Ehrmann's testimony that supervised parenting time would protect the father from unfounded accusations. The appellate court reversed the no-contact orders and ordered the trial court to only restrict his parenting time upon the entry of requisite statutory finding of endangerment. It also encouraged the trial court to order supervised visits.

The Court of Appeals upheld the $14,000 in attorney fees because the mother's fees were substantially less than the father's, his salary is significantly higher than the mother's, and the conduct of the father during the court proceedings.

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  1. He did not have an "unlicensed handgun" in his pocket. Firearms are not licensed in Indiana. He apparently possessed a handgun without a license to carry, but it's not the handgun that is licensed (or registered).

  2. Once again, Indiana's legislature proves how friendly it is to monopolies. This latest bill by Hershman demonstrates the lengths Indiana's representatives are willing to go to put big business's (especially utilities') interests above those of everyday working people. Maassal argues that if the technology (solar) is so good, it will be able to compete on its own. Too bad he doesn't feel the same way about the industries he represents. Instead, he wants to cut the small credit consumers get for using solar in order to "add a 'level of certainty'" to his industry. I haven't heard of or seen such a blatant money-grab by an industry since the days when our federal, state, and local governments were run by the railroad. Senator Hershman's constituents should remember this bill the next time he runs for office, and they should penalize him accordingly.

  3. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  4. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  5. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

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