All Things Family Law

Discussion of all things related to Indiana family law from an Indiana divorce attorney.

This blog provides general family law and divorce law information. If you have a specific issue or case you need assistance with please contact me directly.

Same-Sex "Parents" - Visitation and Parenting Time - Indiana Law

On October 31, 2013 the Court of Appeals decided an important case in Indiana holding that a person who is the non-biological, same-sex parent of a child has standing to seek a visitation order with the child.  In doing so the Court of Appeals challenges the legislature to review its definition of "parent" (see below) 

In reaching the holding the Court  of Appeals details the policy reasons and merits of allowing visitation to grandparents, opposite-sex stepparents, foster parents and third parties in general.  Summarizing its reasoning the Court stated:

"By recognizing a right to third-party visitation, this court has acknowledged that a child's interest in maintaining relationships with those who have acted in a parental capacity will sometimes trump a natural parent's right to direct the child's upbringing. Moreover, although the reasons our Supreme Court articulated in Worrell for denying standing to former foster parents are beyond dispute, the rationale for limiting third-party visitation to stepparents alone is less clear. It appears to us that the Court viewed a stepparent relationship as a strong indicator that a custodial and parental relationship exists. But surely custodial and parental relationships may exist with third parties other than stepparents. Indeed, the situation presented here is characterized by even stronger indicia of a custodial and parental relationship. This is so because the parties originally intended for the biological mother's partner to fulfill the role of the child's second parent and actively encouraged the development of a parental bond between the partner and the child."

Importantly, the Court explained that a same-sex partner is not automatically entitled to visitation:

"Thus, in the particular factual circumstances of this case, a partner who did not give birth to the child has standing to seek visitation with the child. This is not to say that a former domestic partner is automatically entitled to visitation in these circumstances—it must still be established that visitation is in the child's best interests. We therefore reverse the trial court's conclusion that Partner lacked standing to seek visitation with Child and remand with instructions to reconsider Partner's request for visitation under the standard set forth in our third-party visitation cases."

So, while a same-sex partner may have visitation, Indiana has not held that they are entitled to visitation per the Indiana Parenting Time Guidelines. Yet. 

Finally, one of most interesting parts of the opinion is where the Court of Appeals urges the legislature to address this issue:

"Since King, the status of the law surrounding a lesbian partner's right, if any, to enjoy the rights of a legal parent of a child born to her partner under the circumstances presented here remains uncertain.[5] When this court decided In re A.B., we solicited guidance from the General Assembly on this issue. In the years that have passed since then, none has been forthcoming. The existing statutory framework does not contemplate the increased use of assisted reproductive technologies. Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child. That deficiency is exacerbated by the growing recognition of less traditional family structures. Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is. We feel the vacuum of such guidance even more acutely now than we did eight years ago, when King was decided. Indeed, what began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time. They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived."

 

To discuss this please contact me. To see all of my postings on this topic search here

Holiday Schedule 2013-2014, Under the New and Old Indiana Parenting Time Guidelines 2013

Each year I update this post to make it relevant for the upcoming Thanksgiving and Winter Break parenting time. Holiday parenting time is often a source of confusion, and this year is more complicated because there are two sets of Guidelines what may apply.  For information about which set of Guidelines apply, please see my general Parenting Time Guidelines page.

This posting will provide the specific language of both the "old" Indiana Parenting Time Guidelines and the "new" Indiana Parenting Time Guidelines, if your child's Winter Break is from Friday, December 20, 2013 and the first day back will be Monday, January 6, 2014.  These times are consistent with the Carmel Clay School Corporation academic calendar. For links to your school system calendar see my "Indiana Schools" page which offers information about all Indiana school corporations.  Please note that the holiday parenting time is controlled by when a child gets out of school, therefore, your situation may not follow this interpretation. To discuss this further please contact me.

 Here is what the "old"  Indiana Parenting Time Guidelines presently say about the winter holidays:

HOLIDAY PARENTING TIME SCHEDULE (Under the Old Guidelines). 

Christmas Vacation. One-half of the period which will begin at 8:00 P.M. on the evening the child is released from school and continues to December 30 at 7:00 P.M. If the parents cannot agree on the division of this period, the custodial parent shall have the first half in even-numbered years. In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day. The winter vacation period shall apply to pre-school children and shall be determined by the vacation period of the public grade school in the custodial parent’s school district.

In years ending with an even number, the non-custodial parent shall exercise the following parenting time: [1] New Year’s Eve and New Year’s Day. (The date of the new year will determine odd or even year). From December 30th at 7:00 P.M to 7:00 P.M. of the evening before school resumes. [4] Thanksgiving. From 6:00 P.M. on Wednesday until 7:00 P.M. on Sunday.

After reviewing the Guidelines, if your child gets out of school on December 20th and goes back on January 6th, one interpretation of the Guidelines for the winter holidays in 2013-2014 is as follows:

  • Thanksgiving Break - with custodial parent in 2013; 
  • Winter School Break - with the noncustodial parent from December 20th at 8 p.m. until December 25th at noon, then the custodial parent would have the child from December 25th at noon until December 30th at 7 p.m., whereupon the noncustodial parent would have the child from December 30th at 7 p.m. until January 5th at 7 p.m. 

Typically the guidelines give the parent who does not have Christmas day the right to have the child noon to 9 p.m. on Christmas day; however, this year if the child's school gets out on December 20th, the Winter Break division is on December 25th.

Here is what the “new” Indiana Parenting Time Guidelines say about the winter holiday (note: the new guidelines still refer to the school Winter Break as a “Chirstmas Vacation”:

HOLIDAY PARENTING TIME SCHEDULE (Under the New Guidelines). 

 The Christmas vacation shall be defined as beginning on the last day of school and ending the last day before school begins again. Absent agreement of the parties, the first half of the period will begin two hours after the child is released from school. The second half of the period will end at 6:00 p.m. on the day before school begins again.  Each party will receive one half (1/2) of the total days of the Christmas vacation, on an alternating basis as follows:

1. In even numbered years, the custodial parent shall have the first one half (1/2) of the Christmas vacation and non-custodial parent shall have the second one half (1/2) of the Christmas vacation.

2. In odd numbered years, the non-custodial parent shall have the first one half (1/2) of the Christmas vacation and custodial parent shall have the second one half (1/2) of the Christmas vacation.

3. In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day.

4. No exchanges under this portion of the rule shall occur after 9:00 p.m. and before 8:00 a.m., absent agreement of the parties.

 New Year’s Eve and New Year’s Day shall not be considered separate holidays under the Parenting Time Guidelines.

Thanksgiving. From 6:00 P.M. on Wednesday until 7:00 P.M. on Sunday, shall be exercised by the noncustodial parent in even numbered years and the custodial parent in odd numbered years.

After reviewing the new Guidelines, if your child gets out of school on December 20th, at 3:00 p.m. and goes back on January 6th, there are 16 days and 1 hour of winter break.  One interpretation of the Guidelines for the winter holidays in 2013-2014 is as follows:

  • Thanksgiving Break - with custodial parent in 2013; 
  • Winter School Break - with noncustodial parent from December 20th until      December 28th, but the custodial parent would have the child on December 25th from noon to 9 p.m., then the custodial parent would have the child from December 28th until January 5th at 6 p.m.

It is also important to note that the “new” Guidelines clarified the hierarchy between holiday parenting time and regular parenting time, and state that sometimes, due to holiday parenting time, a parent may have 3 weekends in a row.  However, the “old” Guidelines are not consistent with the “new” Guidelines on these points.  So there are not only different holiday schedules, but also different rules regarding how to set the regular parenting time schedule after the holidays, i.e. who has the weekend following the holidays.  Remember that “existing parenting time orders in effect on March 1, 2013 shall be enforced according to the parenting time guidelines that were in effect on the date the parenting time order was issued.” 

To discuss this please contact me. To see all of my postings on this topic search here

Looking for the "old" guidelines? Go here.

Obamacare / PPACA & Indiana Divorce - Indiana Divorce Law 2013 and 2014

 

Under the PPACA, every individual, regardless of marital status, will be required to obtain individual health care coverage.  This represents a drastic change from the nation’s previous health care practices and requirements. While the enactment of the PPACA will inevitably result in major changes in the health insurance industry, the PPACA may also have a profound effect on the institution of marriage in the United States.  Indeed, the incentive to marry solely to obtain health care coverage will seemingly be eliminated. Conversely, particular provisions of the PPACA, especially those allowing low-income individuals to obtain tax reductions in order to pay for health insurance, may actually incentivize certain individuals to abstain from marriage or seek divorce. Furthermore, certain provisions of the PPACA may also have an effect on child support and spousal maintenance payments.  

To keep this topic updated I created a page in this blog that I will update as the PPACA and Indiana Divorce Law develops.  Go here for the  “Obamacare” / PPACA & Indiana Divorce Law page.  

The review or transmission of information at this site is not legal advice and does not establish an attorney-client relationship.   All data and information provided on this site is for informational purposes only. I make no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. Should you be seeking legal advice, I recommend you retain an attorney. Please contact me  here.