One key aspect of human nature is to see our problem(s) as more important than everyone else’s problems. In addition, the need for a timely resolution of any given stressor is important to living a fulfilled life. As domestic advocates at Ciyou & Dixon, P.C., we observe these two factors collide and often create great duress for clients when child/ parenting time disputes arise.
The protective nature of a parent (with perhaps some unresolved emotion from the divorce itself) necessitates a dispute be settled NOW! Unfortunately, many of these matters occur at the margins of what the Indiana Parenting Time Guidelines specify. Normal parent-child contact and exchanges generally do not create such situations.
Instead, it is the weekend, holiday, and special or unique situations (i.e., weddings) that trigger acute and hostile “war” between parents. These parents need a resolution in real time, but courts are not set up this way. A contempt or other after-the-fact motion is generally how these matters are dealt with.
Because there are only about 300 Indiana trial courts and few more judicial officers (magistrates and commissioners), and thousands upon thousands of domestic and related cases pending at any one time, there is no ability for contemporaneous judicial decision. A contempt or related hearing days, weeks or months later, even given they are a priority, just lets the matter fester.
It is for this reason that the concept of a parenting coordinator (known as “PCs”) has come into the legal landscape over the last several years. A PC is ordered by the trial court to decide or resolve matters in real time. PCs are typically licensed clinical social workers, clinical psychologists, or lawyers.
The barrier to PCs (other than the fact they are paid service providers, unlike trial courts supported by tax dollars) is the authority to allow a non-judicial official to decide the matter at hand in real time or otherwise limit or delay access to Indiana’s trial courts; such challenges have not been embraced by Indiana’s appellate courts in the past (Fuchs v. Martin, 845 N.E.2d 1038 (Ind.2006)).
In the past, such authority has faced various challenges, such as unconstitutional denial of access to the court or impermissible delegation of judicial authority to a third party (Bacon v. Bacon, 877 N.E.2d 801 (Ind.Ct.app.2007)). To avoid this, most Indiana trial courts require the parties to agree to appointment of PCs to decide disputes as they occur. The theory is that the parties may contract for this so long as the PC acts in the child’s best interests.
In other words, PCs are not found in specific authority in Indiana divorce law (statues, cases or rules) – (Gomez v. Gomez, 887 N.E.2d 977 (Ind.Ct.App.2008)). The caselaw on point is thin. The legal right to go immediately to court without some intermediate attempt to resolve a dispute was challenged early on when courts adopted their own rules to order mediation before coming to court to litigate dispute.
This appears to be the similar theory as the Indiana Supreme Court seeks comment on PC guidelines. If (when) adopted, this will make PCs a part of domestic law not sounding in contract law. Thus, where parties do not agree, a court may still order parties to work through a PC before coming to court.
Whether you are a domestic litigant, or just a general member of Society concerned about the best interests of children in divorce along with the right to go to court, we hope this blog post helps you weigh these potentially competing interests and rights. At present, and as reflected in the media, the Indiana Supreme Court is considering adopting PC rules.
The ISC solicits comments–your comments–on such during a comment period ending on March 26 -- http://www.in.gov/judiciary/3763.htm. Real time resolution of disputes–outside of the courtroom--may well be the final frontier in handling post-divorce custody disputes. However, it is well to note the trial court will always be a line of last resort to all (domestic) litigants, carefully supervision processes before a cases reaches that point (such as parenting coordination to mandatory mediation). Be a part of this history. Be involved and be heard.
This blog post is written by attorney Bryan L. Ciyou, Ciyou & Dixon, P.C. Ciyou & Dixon, P.C. handles cases throughout the State of Indiana.