In reversing a trial court’s modification of the custody agreement even though neither parent requested a change in custody, the Indiana Court of Appeals split over how much discretion a Parallel Parenting Time Order grants a court.
The Fulton Circuit Court gave joint physical and legal custody to Shelly Bailey and her ex-husband Lance Bailey after the pair had traded contempt petitions and Shelly Bailey petitioned to restrict Lance Bailey’s visitation.
On appeal, Shelly Bailey charged the trial court should not have modified physical custody because neither party made such a request.
The Court of Appeals agreed, finding although Shelly Bailey agreed that the trial court could enter a Parallel Parenting Time Order, that was not a concession that the lower court could modify the children’s physical custody. Neither parent filed a petition requesting a change in custody and neither party presented any arguments for changing custody arrangements.
“Most importantly for purposes of this case, nothing in the new Parallel Parenting provision demonstrates any intent that it should affect the amount of parenting time awarded, except for possible elimination of mid week parenting time, makeup parenting time, and opportunities for additional parenting time that appear elsewhere in the Parenting Time Guidelines,” Judge Michael Barnes wrote for the majority in Shelly Bailey v. Lance Bailey, 25A04-1309-DR-452.
In his dissent, Judge John Baker asserted the Parallel Parenting provision would affect the amount of parenting time by reducing the father’s visitation. He also pointed to the instructions accompanying the Parallel Parenting Time Orders that the best interests of the children are paramount and the court recognize one parent could create a high-conflict situation.
Baker contended the trial court was trying to satisfy the best interests of the children as well as prevent further destructive behavior.