As a general rule, in matters where child custody and child support are at issue, the Court will grant parents joint or sole custody and Order an obligation for child support to be paid. Often, the Indiana Parenting Time Guidelines (IPTG)1 are used as a baseline for determining parenting time for the non-custodial parent. For older children, IPTG parenting time for non-custodial parents is a midweek time and every other weekend.
However, as the IPTGs state, they are only a guide/model, and parents should work together to determine the best parenting time division in the best interests of their Children. This may include more time than is contemplated by the IPTGs. If less time is contemplated, there needs to be a specific finding/showing of a problem, as explained below.
Fostering relationships among children and both parents is a key principle of domestic law. However, in certain limited instances, parenting time with one parent may not be appropriate, or needs to be constricted based on certain factors. There is a fundamental liberty interest that parents have in the care, custody, and control of their children2. To limit this fundamental right, there must be a specific showing that “parenting time might endanger the child’s physical health or significantly impair the child’s emotional development”.3
A recent Indiana Supreme Court addressed a variant of denial of parenting time. In Perkinson v. Perkinson, the parties divorced and agreed that Father would not have any child support obligation in lieu of him not getting any parenting time with the Children4. The agreement further specified that if Father wanted to receive parenting time in the future, he would have to pay a child support arrearage (back payment calculation).
Approximately two (2) years later, Father filed a petition to establish his parenting time. Same was denied. Another two (2) years after that, Father filed a second petition to establish parenting time, which was also denied. The case went through the Court of Appeals, was reversed and remanded, and transfer was granted to the Indiana Supreme Court.
The Court analogized agreements to relinquish parenting time in exchange for not having to pay child support to agreements to contract away child support rights. The child support is for the benefit of the children, and as such, a parent cannot bargain away these rights. Similarly, a parent should not contract away parenting time to avoid child support. Parenting time with both parents is in the best interests of the child, unless there is a physical or emotional danger (described above).
The Court found that this agreement to terminate/relinquish parenting time was not related to physical or emotional harm to the child5. Further, Father did agree to pay the arrearage amounts to see the parties’ Child, as contemplated in the agreement. The Court found that this agreement was against public policy, and cautioned others against the use of similar agreements. The Court noted that the trial courts have several tools to help transition into appropriate parenting time, including supervised time or enlisting the assistance of a GAL or CASA to make recommendations to the Court.
Agreements to forgo child support payments in exchange for not seeing one’s child are against public policy, and will not likely be enforced. Knowing the rights of the Children and the best interests of the Children can help parents create an appropriate parenting time arrangement. We hope that this blog post has been helpful in exploring this matter. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.