Indiana Parenting Time Can’t Be “Negotiated Away” High Court Rules

Calling the practice “repugnant and contrary to public policy,” the Indiana Supreme Court has ruled that for parents to negotiate lesser parenting time with their children as a means of reducing child support obligations is not legal.As such, our Hammond child custody lawyers understand that the court has instructed family law attorneys to refuse to be a part of such discussions and further to advise clients that engaging in such talks is “unacceptable.”

The court further ruled in this case, Perkinson v. Perkinson that the trial court had abused its discretion by prohibiting the father from exercising any parenting time with his child and further providing no means whatsoever by which he could earn parenting time.

This kind of strong language is rare for the state’s highest court, which handed down a unanimous 5-0 decision in the case. The ruling stems from a 2006 divorce case in which the father was required to give up all parenting time with his child in exchange for the mother assuming sole financial responsibility for the child.

While the initial divorce dissolution agreement was something to which the father had consented, he later attempted to change the arrangement and get time with his child. However, per the terms of the agreement, he was repeatedly denied by the county court.

The Supreme Court ruled that the issues of parenting time and child support are to be decided separately. One should not rely on the other. Rare are the cases, the court said, where the best interest of the child will involve eliminating the parenting time of either parent.

In reaching its conclusion, the court cited the U.S. Supreme Court case of Troxel v. Granville, which held that the right of both parents to be involved in the upbringing of their child is historically and fundamentally imperative and should not be infringed upon except in the most extreme circumstances.

In its discussion regarding this tactic of “contracting away” parenting time rights, the court said that one parent would give up his or her right to parent their own child in lieu of not paying child support is “incomprehensible.” In fact, to do so is directly contrary to the state’s public policy of protecting the welfare of children, which assumes that children have the right to, at the very least, be financially supported by both parents. The court can’t force a parent to spend time with his child, but it can hold him accountable to pay for the child’s needs. For the custodial parent to contract away those financial benefits is a violation of that parent’s fiduciary duty to the child.

Further, the court found that obligating the father to pay an arrearage if he later sought to spend time with his child only serves to discourage development of the parent-child bond. That’s why the two issues have to remain separate, a point well-established in the 2000 Farmer v. Farmer case.

The only case in which parenting time should be restricted, the court ruled, is when failure to do so would endanger the child’s physical health or emotional development.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources:
Perkinson v. Perkinson, June 25, 2013, Indiana Supreme Court
More Blog Entries:
Making Indiana Divorce Tougher Would Do More Harm Than Good, May 15, 2013, Hammond Child Custody Lawyer Blog