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Tuesday, June 25, 2013

Ind. Decisions - Supreme Court issues another this afternoon

In Michael D. Perkinson, Jr. v. Kay Char Perkinson, a 10-page, 5-0 opinion, Justice David writes:

The concept of parents negotiating away parenting time as a means to eliminate the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy.

In addition, under the circumstances of this case, the trial court’s prohibition against parenting time is not supported by the record. Trial courts are equipped with a plethora of options and a broad range of discretion to tailor each decision to the particular circumstances. However, their discretion is not absolute. We reverse the decision of the trial court which prohibited the father from exercising any parenting time with his child and provided no means by which he could earn parenting time. * * *

A dissolution decree was entered in February 2006. It distributed marital assets and debts between Father and Mother and set out child support payments for L.P. Father and Mother entered into an agreement in which Father agreed to waive his parenting time rights in exchange for Mother assuming sole financial responsibility and waiving enforcement of Father’s child support arrearage.

The agreement also set out that if Father sought parenting time in the future, “he shall be obligated to pay any support arrearage through the date of the approval” of the agreement by the trial court. The agreement was approved by the court in March 2006. * * *

In February 2008, Father filed a verified petition for modification of parenting time, seeking to reestablish visitation with L.P. The trial court denied that petition in April 2008. Father filed a motion to correct error in May 2008, which was denied by the trial court in July 2008. In December 2010, Father filed a second verified petition for modification of parenting time. In March 2011, a hearing was conducted on the petition and the trial court again denied his petition. Father submitted a motion to correct error in March 2011 and in June 2011, the trial court denied the motion to correct error. The Court of Appeals reversed and remanded. We granted transfer. * * *

The trial court has a host of tools at its disposal. It could order phased in professionally guided supervised visitation at Father’s expense. The trial court could require the testimony of a child psychiatrist or child psychologist to assist it in determining how best to structure reunification. Or perhaps the testimony of an expert would support the fact that even the introduction of parenting time would endanger the child’s well being. The trial court could even appoint a GAL or CASA to investigate and make recommendations to the trial court. These are but a few of the many courses of action the trial court could take, when, as the situation here, the facts do not support the child would be endangered by parenting time with his Father.

Conclusion. The decision of the trial court is reversed and this case is remanded.

Dickson, C.J., and Massa and Rush, J.J., concur.
Rucker, J., concurs in result.

Posted by Marcia Oddi on June 25, 2013 03:25 PM
Posted to Ind. Sup.Ct. Decisions