IndyBar: Restricting Parenting Time

By Katie Kelsey, Kids’ Voice of Indiana

All lawyers who regularly practice family law know the standard for parenting time and can rattle it off without a second thought: A noncustodial parent is entitled to parenting time, unless the court finds that the parenting might endanger the child’s health or significantly impair the child’s emotional well-being. As with so many things in family law, that standard is both helpful enough and vague enough to allow flexibility in addressing the variety of situations families present to lawyers and the courts.

But what does that standard mean, really? What are the key elements of restricting parenting time? What counts as a restriction of parenting time? What are the ways in which we can expect to see courts restrict parenting time? There’s so much nuance behind that easily recited standard.

A court may modify an order granting or denying parenting time rights whenever a modification would serve the child’s best interests. I.C. 31-17-4-2; I.C. 31-14-14-2. However, this is subject to the requirement that a court may not restrict a parent’s parenting time rights unless a court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s health or significantly impair the child’s emotional well-being. I.C. 31-17-4-1(a) and I.C. 31-17-4-2; I.C. 31-14-14-1(a). This “might endanger” must be read as “will endanger”. See Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003); Patton v. Patton, 48 N.E.3d 17 (Ind. Ct. App. 2015).

Other statutory provisions create a rebuttable presumption in favor of supervised parenting time. These provisions include situations like domestic and family violence convictions (I.C. 31-17-2-8.3; I.C. 31-14-14-5) and convictions for child molesting or child exploitation, with the outcomes varying depending on the age of the conviction (I.C. 31-17-4-1; IC 31-14-14-1). These rebuttable presumptions effectively switch the burden of proof in cases where a person seeks to restrict a parent’s parenting time on these bases.

The burden of proof for the modification or restriction of parenting time is a preponderance of the evidence, and the party seeking the modification of parenting time holds that burden. See In Re Paternity of P.B., 932 N.E.2d 712, 720-21 (Ind. Ct. App. 2010); Stewart v. Stewart, 521 N.E.2d 956, 963 (Ind. Ct. App. 1988) trans. denied. This even applies to a noncustodial parent with restricted parenting time. See In Re Paternity of Snyder, 26 N.E.3d 996 (Ind. Ct. App. 2015). A hearing is necessary in order to restrict a parenting time, with appropriate exceptions made for ex parte orders. See Burkett v. W.T., 857 N.E.2d 1031, 1033 (Ind. Ct. App. 2006) (evidentiary hearing required); Pence v. Pence, 667 N.E.2d 798, 802 (Ind. Ct. App. 1996) (addressing ex parte orders ending parenting time). If a parent’s parenting time will be restricted, the court must issue findings. See Hazelett v. Hazelett, 119 N.E.3d 153, 161 (Ind. Ct. App. 2019); Hatmaker v. Hatmaker, 998 N.E.2d 758, 762-63 (Ind. Ct. App. 2013).

Placing restrictions on a parent’s parenting time does not automatically trigger the “will endanger” provisions, as long as the parenting time is not restricted in a way that gives the parent less than the Indiana Parenting Time Guidelines. See Hazelett v. Hazelett, 119 N.E.3d 153, 162 (Ind. Ct. App. 2019). Similarly, modifying parenting time in such a way that reduces the amount of time does not automatically count as a restriction of a parent’s parenting time, as long as the parenting time is not modified below the Indiana Parenting Time Guidelines. See In Re the Paternity Of C.B. and S.B., 112 N.E.3d 746, 754 (Ind. Ct. App. 2018); Clary-Gosh v. Gosh, 26 N.E.3d 986 (Ind. Ct. App. 2015).

Restricted parenting time can vary widely. It could mean not permitting midweek visits, having parenting time only in public places, having parenting time without overnights, supervised parenting time or even the most extreme remedy, suspending or terminating a parent’s parenting time. Even supervised parenting time presents a spectrum of choices, ranging from supervision by a family member or “pop-in” supervision to supervised parenting time in a secure facility. The level of restriction depends entirely on the circumstances presented, balancing the child’s best interests and safety with the parent’s rights. There’s a smorgasbord of caselaw to examine on the types of parenting time restrictions that courts have ordered, encompassing all these options and more.

These brief highlights on restricted parenting time don’t even scratch the surface. There’s far more nuance to discuss, as befits such an important piece of a parent-child relationship.•