Perhaps. Yes. No. Maybe. The answer is driven by the facts.
Even with the most caring parents committed to making post-divorce parenting work, disputes and disagreements are common with the other parent’s right to reasonable parenting time.
At Ciyou & Dixon, P.C. we frequently receive questions about denial of the first right of refusal to be the caregiver when the possessory parent is unavailable , tardy pickups and dropoffs , and denial or interference with phone contact.
One of the central questions raised by our clients and other family law litigants is does this mean custody can or should be changed? The general answer is no. The legal reason this is the case is because a change in physical (or legal) custody of a child requires a substantial change in circumstances in one or more of the statutory factors the trial court utilizes in making an initial custody award in a divorce or paternity case.
However, in certain acute cases, this level of interference with parenting time impacts the child and his or her best interests and does weigh into the statutory factors. Where this is the case, the trial court may modify physical custody because the interference causes and rises to the level of a substantial change.
This may sound circular, but a denial of a phone call or a series of phone calls, while serious, probably does not rise to a substantial change. On the other hand, this is far different than a custodial parent totally shutting out the other parent and denying all contact with the other parent and his/her parenting with the child. It is somewhere on this continuum that the statutory factors impacting the child’s placement and what is in his or her best interests may amount to a substantial change in circumstances.
Nevertheless, parenting time is a corollary of the fundamental right to parent under the United States Constitution. Given this, there are a number of tools at the disposal of attorneys and aggrieved parents to use to address parenting time interference, even where a change of custody is not warranted.
In fact there is an entire chapter of the Divorce Act setting out remedies, some of the more common including the following:
- Security or Bond: With this tool, a trial court may order a custodial parent to escrow X dollars to be used to pay costs or fine or otherwise if he or she interferes with future parenting.
- Attorney’s Fees: In addition, and perhaps most common with contempt, if a custodial parent interferes with parenting time, a trial court may order that parent to pay the legal fees of the other parent to enforce parenting time.
- Contempt: A parent who willfully interferes with parenting time in violation of an order (including for parent time ) may be found in indirect contempt of court, admonished, fined or incarcerated. Typically, courts will issue an executed jail sentence, say three days, for contempt, and suspend it pending future compliance.
- Injunction/Restraining Order: In more egregious cases, which may well lead to a custody modification, the trial court may issue a permanent injunction or temporary restraining order to prevent interference with parenting time.
If you face parenting time denial, these are some of the many tools the very flexible family law provisions provide to courts to aid in obtaining parenting time. We hope you find this information useful in your education about family law and parenting time issues. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana. This blog post was written by Bryan L. Ciyou, Esq.
- 1. Ind.Code 31-17-4-1.
- 2. This is labeled the “Opportunity for Additional Parenting Time” under the Indiana Parenting Time Guidelines.
- 3. Such concept is addressed under “Implementing Parenting Time” and “Punctuality” under the Indiana Parenting Time Guidelines.
- 4. This is found under the “Communications” provisions of the General Rules Applicable to Parenting Time under the Indiana Parenting Time Guidelines.
- 5. Leisure v. Wheeler, 828 N.E.2d 409 (Ind.Ct.App.2005).
- 6. Ind.Code 31-17-2-21 (post-divorce).
- 7. Ind.Code § 31-17-2-8.
- 8. Ind.Code § 31-14-13-2.
- 9. Troxel v. Granville, 530 U.S. 57 (2000).
- 10. Ind.Code § 31-17-4-2.5.
- 11. Ind.Code § 31-17-4-3.
- 12. In the Paternity of M.F., 956 N.E.2d 1157 (Ind.Ct.App.2011).
- 13. Ind.Code § 31-17-4-8.
- 14. Ind.Code § 31-17-4-4, -5.