Section I. General Rules Applicable To Parenting Time
Effective January 1, 2022
A. Communications
1. Between Parents.
Parents shall at all times keep each other advised of their home and work addresses, telephone numbers and email addresses. Notice of any change in this information shall be given to the other parent in writing. All communications concerning a child shall be conducted between the parents. Any communication shall occur at reasonable times and places unless circumstances require otherwise. A child shall not be used to exchange documents or financial information between parents.
2. With a Child Generally.
A child and a parent shall be entitled to private communications without interference from the other parent. A child shall never be used by one parent to spy or report on the other. Each parent shall encourage the child to respect and love the other parent. Parents shall at all times avoid speaking negatively about each other in or near the presence of the child, and they shall firmly discourage such conduct by relatives or friends.
3. With a Child by Telephone.
Both parents shall have reasonable phone access to their child. Telephone communication with the child by either parent to the residence where the child is located shall be conducted at reasonable hours, shall be of reasonable duration, and at reasonable intervals, without interference from the other parent.
Whether a parent uses an answering machine, voice mail, text, or email, messages left for a child shall be promptly communicated to the child and the call returned.
Commentary
Parents should agree on a specified time for telephone calls so that a child will be available to receive the call. The parent initiating the call should bear the expense of the call. A child may, of course, call either parent, though at reasonable hours, frequencies, and at the cost of the parent called if it is a long distance call.
Examples of unacceptable interference with communication include a parent refusing to answer a phone or refusing to allow the child or others to answer; a parent recording phone conversations between the other parent and the child; turning off the phone or using a call blocking mechanism or otherwise denying the other parent telephone contact with the child. A parent may restrict access from a telephone, tablet, or other device used to communicate with the other parent as punishment for a child, but such punishment shall not prevent communications with the other parent.
4. With a Child by Mail.
A parent and a child shall have a right to communicate privately by text, e-mail and faxes, and by cards, letters, and packages, without interference by the other parent.
Commentary
A parent should not impose obstacles to mail communications. For example, if a custodial parent has a rural address, the parent should maintain a mailbox to receive mail at that address. A parent who receives a communication for a child shall promptly deliver it to the child.
5. Electronic Communication.
The same provisions above apply to electronic communications of any kind. However, these provisions shall not be construed to interfere with the authority of either parent to impose reasonable restrictions to a child’s access to the Internet.
6. Emergency Notification.
For emergency notification purposes, whenever a child travels out of the area with either parent, one of the following shall be provided to the other parent: An itinerary of travel dates, destinations, and places where the child or the traveling parent can be reached, or the name and telephone number of an available third person who knows where the child or parent may be located.
7. Communication between parent and child.
Each parent is encouraged to promote a positive relationship between the children and the other parent. It is important, therefore, that communication remain open, positive and frequent. Regular phone contact is an important tool in maintaining a parent/child relationship as well as other forms of contact such as letter, e-mail and other more technologically advanced communications systems such as video chat and Skype. No person shall block reasonable phone or other communication access between a parent and child or monitor or record such communications. A parent who receives a communication for a child shall promptly deliver it to the child. Both parents shall promptly provide the other parent with updated cell and landline phone numbers and e-mail addresses when there has been a change.
Commentary
It is important for a child to have as much contact with both parents as possible. Interference with reasonable communication between a parent and child, including monitoring of that communication is destructive not only to the child’s relationship with the other parent, but is also destructive to the child. Attempts to block access to and contact with the other parent may violate these parenting time guidelines. These types of behaviors may lead to sanctions, a change of parenting time, or in some cases, a change of custody. The prohibition applies equally to both parents.
B. Implementing Parenting Time
1. Transportation Responsibilities.
Unless otherwise agreed between the parents, the parent receiving the child shall provide transportation for the child at the start of the scheduled parenting time and the other parent shall provide transportation for the child at the end of the scheduled parenting time.
Commentary
1. Presence of Both Parents.
Both parents should be present at the time of the exchange and should make every reasonable effort to personally transport the child. On those occasions when a parent is unable to be present at the time of the exchange or it becomes necessary for the child to be transported by someone other than a parent, this should be communicated to the other parent in advance if possible. In such cases, the person present at the exchange, or transporting the child, should be a responsible adult with whom the child is familiar and comfortable. In the event a parent chooses to bring a third party to the exchange, care should be taken to ensure the person selected does not serve to increase the level of conflict at the exchange.
2. Distance/Cost as Factors.
Where the distance between the parents' residences is such that extended driving time is necessary, the parents should agree on a location for the exchange of the child. The cost of transportation should be shared based on consideration of various factors, including the distance involved, the financial resources of the parents, the reason why the distances exist, and the family situation of each parent at that time.
3. Parental Hostility.
In a situation where hostility between parents makes it impracticable to exchange a child at the parents' residences, the exchange of the child should take place at a neutral site. The use of a law enforcement facility for exchanges is an extreme measure which should only be considered in cases where protective orders between the parents exist or in cases where there is a history of repeated acts of physical violence or intimidation between the parents. In lieu of a law enforcement facility, parties are encouraged to use other public places (i.e., gas station, restaurant, grocery store) to ensure the safety and smooth transition of the child.
2. Punctuality.
Each parent shall have the child ready for exchange at the beginning and at the end of the scheduled parenting time and shall be on time in picking up and returning the child. The parents shall communicate as early as possible regarding any situation that would interfere with the timely exchange of the child. Both parents have a duty to communicate any time the exchange is delayed. When no communication is initiated by the delaying parent, and pick up or return of a child does not occur within a reasonable time, the time and conditions of the exchange may be rescheduled at a time and place convenient to the parent not responsible for the delay.
Commentary
Punctuality is a matter of courtesy to the child and impacts the child’s sense of security and well-being. Parents should make every effort to pick up and return a child at the agreed time, and not substantially earlier or later. Parents should recognize, however, that circumstances occur that require leeway in the scheduled times. What constitutes unreasonable time is fact sensitive. Parents are encouraged to include in their parenting plans what constitutes an unreasonable time.
3. Clothing.
The custodial parent shall send an appropriate and adequate supply of clean clothing with the child and the non-custodial parent shall return such clothing in a clean condition. Each parent shall advise the other, as far in advance as possible, of any special activities so that the appropriate clothing may be available to the child.
Commentary
It is the responsibility of both parents to ensure their child is properly clothed. The non-custodial parent may wish to have a basic supply of clothing available for the child at his or her home.
4. Privacy of Residence.
A parent may not enter the residence of the other, except by express permission of the other parent, regardless of whether a parent retains a property interest in the residence of the other. Accordingly, the child shall be picked up at the front entrance of the appropriate residence unless the parents agree otherwise. The person delivering the child shall not leave until the child is safely inside.
C. Changes In Scheduled Parenting Time
Introduction
Parents should recognize there will be occasions when modification of the existing parenting schedule will be necessary. Parents should exercise reasonable judgment in their dealings with each other and with their child. Parents should be flexible in scheduling parenting time and should consider the benefits to the child of frequent, meaningful and regular contact with each parent and the schedules of the child and each parent.
1. Scheduled Parenting Time To Occur As Planned.
Parenting time is both a right and a responsibility, and scheduled parenting time shall occur as planned. Both parents are jointly responsible for following the parenting time orders. A child shall not make parenting time decisions. If a parent is unable to provide personal care for the child during scheduled parenting time, then that parent shall provide alternate child care or pay the reasonable costs of child care caused by the failure to exercise the scheduled parenting time.
Commentary
Parents should understand it is important for a child to experience consistent and ongoing parenting time. A child is entitled to rely on spending time with each parent in a predictable way and adjusts better after a routine has been established and followed. A parent who consistently cancels scheduled parenting time sends a very harmful message to the child that the child is not a priority in that parent's life. In addition to disappointing a child, the voluntary cancellation of scheduled parenting time by one parent may interfere with the plans of the other parent or cause the other parent to incur child care and other costs.
Parents share a joint and equal responsibility for following parenting time orders. A child shares none of this responsibility and should not be permitted to shoulder the burden of this decision. See also Section E. 3.
Unacceptable excuses for denying parenting time include the following:
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The child unjustifiably hesitates or refuses to go.
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The child has a minor illness.
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The child has to go somewhere.
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The child is not home.
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The noncustodial parent is behind in support.
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The custodial parent does not want the child to go.
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The weather is bad (unless the weather makes travel unsafe).
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The child has no clothes to wear.
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The other parent failed to meet preconditions established by the custodial parent.
2. Adjustments to Schedule / “Make Up” Time.
Whenever there is a need to adjust the established parenting schedules because of events outside the normal family routine or the control of the parent requiring the adjustment, the parent who becomes aware of the circumstance shall notify the other parent as far in advance as possible. Recurring events which may require an adjustment, such as military drill obligations or annual work obligations, should be communicated as soon as those scheduled events are published. Both parents shall then attempt to reach a mutually acceptable adjustment to the parenting schedule.
If an adjustment results in one parent losing scheduled parenting time with the child, “make-up” time should be exercised as soon as possible. If the parents cannot agree on “make-up” time, the parent who lost the time shall select the “make-up” time within one month of the missed time. “Make-up” time is not an opportunity to deny the other parent of scheduled holidays or special days, as defined with the Guidelines, and should not interfere with previously scheduled activities.
“Make-up” parenting time is intended to help maintain a parent-child relationship, while taking into consideration everyday life demands. “Make-up” parenting time may not be used routinely due to a parent’s failure to plan in advance, absent a true emergency.
Commentary
There will be occasions when scheduled parenting times should be adjusted because of events or activities outside of a parent’s control, such as illnesses, mandatory work, or military obligations, or special family events such as weddings, funerals, reunions, and the like. Each parent should accommodate the other in making the adjustment so that the child may attend the family event or receive “make-up” parenting time with a parent, when adjustments are needed. After considering the child's best interests, the parent who lost parenting time may decide to forego the “make-up” time.
Decisions made by a parent that are voluntary in nature and prevent their regular exercise of parenting time such as vacations or participation in other, voluntary activities, should not be subject to “make-up” parenting time, absent an agreement by both parents to accommodate the adjustment and subsequent “make-up” time. These events may result in the opportunity for additional parenting time for the other parent.
3. Parties who exercise equal periods of parenting time
may not exercise more than three (3) additional days of “make-up” parenting time at any one time, in conjunction with regularly scheduled parenting time, so the parent does not exercise more than ten (10) consecutive days of regular and make-up parenting time. These additional days should be exercised outside of those holidays and special days as designated within the Guidelines when possible.
4. Opportunity for Additional Parenting Time.
When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences. The other parent is under no obligation to provide the child care. If the other parent elects to provide this care, it shall be done at no cost and without affecting child support. The parent exercising additional parenting time shall provide the necessary transportation unless the parties otherwise agree.
Commentary
The rule providing for opportunities for additional parenting time promotes the concept that a child receives greater benefit from being with a parent rather than a child care provider who is not a household family member. The household family member is defined as an adult person residing in the household, who is related to the child by blood, marriage or adoption. The rule is also intended to be practical. When a parent's work schedule or other regular activities require hiring or arranging for a child care provider who is not a household family member, the other parent should be given the opportunity to provide the care. Distance, transportation or time may make the rule impractical. The period of absence which triggers the exchange will vary depending upon the circumstances of the parties. Parents should agree on the amount of child care time and the circumstances that require the offer be made. It is presumed that this rule applies in all cases which the guidelines cover; however, the parties or a trial court may, within discretion, determine that a deviation is necessary or appropriate. Any such deviation must be accompanied by a written explanation. See Shelton v. Shelton, 840 N.E.2d 835 (Ind. 2006)
This section is sometimes mistakenly referred to as the “right of first refusal.” It is more accurate to refer to this section as an opportunity to exercise additional parenting time.
D. Exchange of Information
Introduction
Parents should obtain and share information about their children. Parents should take the initiative to obtain information about their child from the various providers of services. Each parent is responsible to establish a relationship with the child’s school, health care provider and other service provider. A child may suffer inconvenience, embarrassment, and physical or emotional harm when parents fail to actively obtain and share information.
1. School Records.
Under Indiana law, both parents are entitled to direct access to their child's school records, Indiana Code § 20-33-7-2. Each parent should obtain school information on their own without depending on the other parent. A parent shall not interfere with the right of the other parent to communicate directly with school personnel concerning a child. The noncustodial parent shall be listed as an emergency contact unless there are special circumstances concerning child endangerment.
2. School Activities.
Each parent shall promptly notify the other parent of all information about school activities, which is not accessible to the other parent. A parent shall not interfere with the right of the other parent to communicate directly with school personnel concerning a child's school activities. The parent exercising parenting time shall be responsible to transport the child to school related activities.
Commentary
Each parent with knowledge of the child’s event should promptly inform the other parent of the date, time, place and event. The opportunity for a child to attend a school function should not be denied solely because a parent is not able to attend the function. The child should be permitted to attend the function with the available parent. Scheduled parenting time should not be used as an excuse to deny the child's participation in school related activities, including practices and rehearsals.
3. Other Activities.
Each parent shall promptly notify the other parent of all organized events in a child's life which permit parental and family participation. A parent shall not interfere with the opportunity of the other parent to volunteer for or participate in a child's activities. If the child’s activities occur during one parent’s time with the child, that parent shall have the first opportunity to provide transportation to the activity.
Commentary
Each parent should have the opportunity to participate in other activities involving the child even if that activity does not occur during his or her parenting time. This includes activities such as church functions, athletic events, scouting and the like. It is important to understand that a child is more likely to enjoy these experiences when supported by both parents.
Parents should attempt to achieve a balance when scheduling extra-curricular activities. A reasonable amount of extra-curricular activities can enrich the child’s life and strengthen the bond between parent and child through these shared experiences. On the other hand, excessive participation in these activities could serve to diminish the quality of parenting time. Parents should take care to ensure these activities do not unreasonably infringe upon parenting time with either parent.
Extra consideration should be given to a child’s participation in travel activities (i.e. basketball, baseball, softball, soccer, etc.). The cost, time away from home and demands on the child should be considered and balanced with the activity and social experience for the child.
4. Health Information.
Under Indiana law, both parents are entitled to direct access to their child's medical records, Indiana Code § 16-39-1-7; and mental health records, Indiana Code § 16-39-2-9.
a. If a child is undergoing evaluation or treatment, the custodial parent shall communicate that fact to the noncustodial parent.
b. Each parent shall immediately notify the other of any medical emergencies or illness of the child that requires medical attention.
c. If a child is taking prescription medication or under a health care directive, the custodial parent shall provide the noncustodial parent with a sufficient amount of medication and instructions whenever the noncustodial parent is exercising parenting time. Medical instructions from a health care provider shall be followed.
d. If required by the health care provider, the custodial parent shall give written authorization to the child's health care providers, permitting an ongoing release of all information regarding the child to the noncustodial parent including the right of the provider to discuss the child's situation with the noncustodial parent.
Commentary
Each parent has the responsibility to become informed and participate in ongoing therapies and treatments prescribed for a child and to ensure that medications are administered as prescribed. An evaluation or treatment for a child includes medical, dental, educational, and mental health services.
5. Insurance.
A parent who has insurance coverage on the child shall supply the other parent with current insurance cards, an explanation of benefits, and a list of insurer-approved or HMO-qualified health care providers in the area where each parent lives. If the insurance company requires specific forms, the insured parent shall provide those forms to the other parent.
Commentary
Qualified health care orders may permit the parent to communicate with the medical health care insurance provider.
E. Resolution of Problems and Relocation
1. Disagreements Generally.
When a disagreement occurs regarding parenting time and the requirements of these Guidelines, both parents shall make every effort to discuss options, including mediation, in an attempt to resolve the dispute before going to court.
2. Mediation.
If court action is initiated, the parents shall enter into mediation unless otherwise ordered by the court.
3. Child Hesitation.
If a child is reluctant to participate in parenting time, each parent shall be responsible to ensure the child complies with the scheduled parenting time. In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.
Commentary
In most cases, when a child hesitates to spend time with a parent, it is the result of naturally occurring changes in the life of a child. The child can be helped to overcome hesitation if the parents listen to the child, speak to each other and practically address the child's needs.
Parents should inquire why a child is reluctant to spend time with a parent. If a parent believes that a child's safety is compromised in the care of the other parent, that parent should take steps to protect the child, but must recognize the rights of the other parent. This situation must be promptly resolved by both parents. Family counseling may be appropriate. If the parents cannot resolve the situation, either parent may seek the assistance of the court.
4. Relocation.
When either parent or other person who has custody or parenting time considers a change of residence, a 30 day advance notice of the intent to move must be provided to the other parent or person.
Commentary
1. Impact of Move.
Parents should recognize the impact that a change of residence may have on a child and on the established parenting time. The welfare of the child should be a priority in making the decision to move.
2. Indiana Law.
Indiana law (Ind. Code § 31-17-2.2) requires all individuals who have (or who are seeking) child custody or parenting time, and who intend to relocate their residence to provide notice to an individual who has (or is seeking) child custody, parenting time or grandparent visitation. The notice must be made by registered or certified mail not later than 30 days before the individual intends to move. The relocating party's notice must provide certain specified and detailed information about the move. This information includes: the new address; new phone numbers; the date of the proposed move; a stated reason for the move; a proposed new parenting time schedule; and must include certain statements regarding the rights of the non-relocating party. The notice must also be filed with the Court. The notice is required for all proposed moves by custodial and noncustodial parents in all cases when the proposed move involves a change of the primary residence for a period of at least sixty (60) days. The notice is not required to be filed with the court if a person’s relocation will reduce the distance between the relocating and non-relocating person’s home or will not result in an increase of more than 20 miles between the relocating and non-relocating parents’ homes and allow the child to remain enrolled in the child’s current school.
5. Withholding Support or Parenting Time.
Neither parenting time nor child support shall be withheld because of either parent's failure to comply with a court order. Only the court may enter sanctions for noncompliance. A child has the right both to support and parenting time, neither of which is dependent upon the other. If there is a violation of either requirement, the remedy is to apply to the court for appropriate sanctions.
6. Enforcement of Parenting Time.
A. Contempt Sanctions.
Court orders regarding parenting time must be followed by both parents. Unjustified violations of any of the provisions contained in the order may subject the offender to contempt sanctions. These sanctions may include fine, imprisonment, and/or community service.
B. Injunctive Relief.
Under Indiana law, a noncustodial parent who regularly pays support and is barred from parenting time by the custodial parent may file an application for an injunction to enforce parenting time under Ind. Code § 31-17-4-4.
C. Criminal Penalties.
Interference with custody or visitation rights may be a crime. Ind. Code § 35-42-3-4.
D. Attorney Fees.
In any court action to enforce an order granting or denying parenting time, a court may award reasonable attorney fees and expenses of litigation. A court may consider whether the parent seeking attorney fees substantially prevailed and whether the parent violating the order did so knowingly or intentionally. A court can also award attorney fees and expenses against a parent who pursues a frivolous or vexatious court action.
F. Custody and Parenting Time During a Public Health Emergency
Introduction
Existing court orders regarding custody and parenting time shall remain in place during a public health emergency and shall be followed. Parties should be flexible and cooperate for the best interests and health of the children during this time.
1. School Calendar.
For purposes of interpreting custody and parenting time orders, the school calendar as published at the start of the academic year or as amended during the academic year, from each child’s school shall control. Custody and parenting time shall not be affected by the school’s closure during a public health emergency.
2. Transportation.
Transportation for parenting time shall follow the provisions of the custody order or agreement unless such transportation is restricted pursuant to Executive Order.
3. Temporary Modification.
If both parents and any other parties to their court case (“the parties”) believe there is a reason to temporarily modify or change the terms of a custody or parenting time court order effective for the duration of a public health emergency and modification is not prohibited by the terms of their existing order, they may agree in writing to temporarily modify their existing order; however, the agreement must be filed and approved by the court to be enforceable. If the parties cannot reach a temporary agreement or do not remain in agreement, any party may file a petition to modify the existing order.
4. Child Support.
Many county child support clerk’s offices may be closed or not accepting payments in person. Existing court orders for child support payments remain in place and shall be followed. Child support payments can be made online, by telephone, by mail, and at other locations, as described on the Indiana Department of Child Services, Child Support Bureau website. Parents who are unable to make their full or any child support payments as a result of a public health emergency may file a petition to modify child support with the court.
5. How to file documents.
Agreements, petitions, or motions should be filed electronically, as documents sent by U.S. Mail or fax may not be reviewed as promptly by the judge. Filings with the court for a party represented by an attorney shall be made by the attorney.
Commentary
A parent’s decision to forgo parenting time in order to protect the child’s health and well-being or to insulate the health and well-being of household family members should not be considered a voluntary relinquishment of parenting time. If a parent is acting in a child’s best interest due to dangerous conditions which make the exercise of parenting time unsafe, for example, during a global pandemic or due to dangerous travel advisories, and opts to forgo parenting time, a parent should be able to exercise “make-up” time in the future. The exercise of “make-up” time may not be feasible within 30 days of the missed time, depending upon the severity of those dangerous conditions and it may not be reasonable for “make-up” time to occur in a single block of time, if a significant period of parenting time was missed.