Supervised and Restricted Parenting Time

We get a lot of questions about restricting parenting time, or having parenting time supervised. Supervised parenting time cases are very difficult on the parties, professionals, judges and, most importantly, the children involved. Most of the time it is not appropriate to have parenting time supervised; however, in some circumstances it is necessary.

Restriction or denial of parenting time is governed by Indiana Code Section 31-17-4-2, which provides as follows:

The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.

In a case published today the Court of Appeals explains how this standard is applied:

Although a court may modify a parenting time order when the modification would serve the best interests of the child or children, a parent’s visitation rights shall not be restricted unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development. Even though the statute uses the word “might,” this Court has previously interpreted the language to mean that a court may not restrict parenting time unless that parenting time “would” endanger the child’s physical health or emotional development. A party who seeks to restrict a parent’s visitation rights bears the burden of presenting evidence justifying such a restriction.

In most cases, barring emergency, eliminating or restricting parenting time on a continuing basis is a last resort. Typically, these cases are going be the ones where mental health evaluators, parenting coordinators and guardian ad litems have been employed, and counseling has been implemented.

Change of Judge in a Divorce or Paternity Case

It is my opinion that Indiana has some great judges, magistrates and commissioners. Really. However, in family law cases sometimes litigants desire a change of judge. Typically this happens where one judge presides over the divorce trial and issues a ruling, and then later child support or custody needs to be modified.

Trial Rule 76, which controls motions for change of judge and venue, states:

After a final decree is entered in a dissolution of marriage case or paternity case, a party may take only one change of judge in connection with petitions to modify that decree, regardless of the number of times new petitions are filed.

The important distinction here is that typically you get only one change of judge for motions to modify. There are other ways to move for a change of judge due to cause, such as conflict or bias, but those circumstances are rare.

Collect Child Support, Maintenance, or Alimony with a QDRO

The collection of child support arrearages, as well as spousal alimony or maintenance arrearages, can occur by seizing and partitioning the paying party's retirement account. A Qualified Domestic Relations Order (QDRO) is a court order which has been filed with the court and determined by the Retirement Plan Administrator to be acceptable or “qualified” under certain federal ERISA rules. A QDRO recognizes the existence of an alternate payee (i.e., legally separated spouse, former spouse, domestic partner, child and/or other dependent) who has the right to receive benefits that are or will be payable to a member.

QDRO's are most commonly used in divorces to divide retirement assets. Essentially, the retirement account of one party is partitioned and a certain amount, or right to receive future payments, is set-off to the other party.

The use of QDRO's to collect other domestic relations judgments is often overlooked. Pursuant to federal law a retirement plan can be used to provide child support and alimony payments through the use of a QDRO.

In today's economy the use of QDRO's to collect child support or spousal maintenance/alimony payments is important. People are being laid off everyday and unemployment is high; however, individuals still may have some retirement assets or benefits from their former job. The retirement assets or benefits could be used to pay the debt owed.

Care must be used when using a QDRO because of the tax issues involved. The person receiving the assets via QDRO may have a taxable event when they liquidate the assets they receive. Imagine you receive retirement assets of $10,000 to satisfy a $10,000 child support debt, but after tax you only realize $7,000. There are ways to deal with this issue, including having the amount you receive 'grossed-up' to account for tax you have to pay, or have the child named as the alternate payee.

For more information regarding QDRO's see the Department of Labor FAQ's.