The Indiana Supreme Court issued an opinion that may be one of the strongest affirmations of the necessity of parenting time.
The case was noted for its strong and clear statement by Justice David: “The concept of parents negotiating away parenting time as a means to eliminate the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable.”
The case at trial involved a father who had agreed with the mother to terminate his own parenting time rights in exchange for not paying child support to the mother. When the father later sought parenting time with his child, the trial court upheld the agreement and the matter was appealed.
“It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying child support,” Justice David wrote on June 25, 2013, in the case of Michael D. Perkinson, Jr. v. Kay Char Perkinson, 36S05-1206-DR-371. “Just as allowing an agreement purporting to contract away a child’s right to support must be held void, an agreement to contract away a child’s right to parenting time, where the presumption that such parenting time is in the child’s best interest has not been defeated, must also be held void as a matter of public policy. Every child deserves better than to be treated as nothing more than a bargaining chip.”
The opinion then discussed that the parent seeking to enforce such an order would have to present a high level of evidence that such parenting time was not in the child’s best interests.
The opinion cited Indiana Code section 31-17-4-2 which states that parenting time rights shall not be restricted unless there is a finding “that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.”
The opinion also reiterated the primacy of parenting time between the child and the non-custodial parent: “[N]ot only does a noncustodial parent have a presumed right of parenting time, but the child has the correlative right to receive parenting time from the noncustodial parent because it is presumed to be in the child’s best interest.”
This case is important for non-custodial fathers for two situations that they may be presented.
The first is the proposal from the custodial mother that the father not have to pay any more child support if he “gives up his rights (to parenting time).” The opinion makes it clear that this agreement cannot be upheld and implies that Indiana divorce attorneys may not be able to participate in such an agreement.
The second is when parenting time is being denied without an intervening court order. While the facts underlying this opinion are not directly on point, the discussion of the opinion is focused on the importance to the child of parenting time.
Fathers are encouraged to get a copy of this opinion to see how important the Indiana Supreme Court considers parenting time to be in their efforts to convince the Indiana trial court how important your parenting time is.
The opinion is available here.
Your best recourse would be to seek out immediate legal assistance from an attorney who focuses on domestic litigation, such as the Cordell & Cordell Indiana divorce lawyers who serve clients in all Indiana counties.