Indiana Supreme Court Voids Agreement to Forgo Parenting Time

Family Law Case Review: Michael D. Perkinson, Jr. v. Kay Char Perkinson
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Indiana Supreme Court holds that an agreement to forego parenting time, in exchange for relief from a child support obligation, is void against public policy. Further, the Court admonished attorneys not to take part in discussing or drafting such an agreement, and trial courts not to approve them.

HELD: Limited evidence in the form of Mother’s testimony that Father had been verbally abusive to Mother, and had threatened to destroy Mother’s relationship with the child was, without more, insufficient to support the trial court’s conclusion that the child’s best interests would be served by having no parenting time with Father.

FACTS AND PROCEDURAL HISTORY:
Father and Mother married in 2004. Child was born to them in 2005. A month after Child’s birth, Father filed for dissolution of the marriage. While the dissolution was pending, Father exercised parenting time with Child, as well as another child Father had from a previous relationship.

In early 2006, the trial court entered its Decree, apparently based upon the settlement agreement of the parties, which divided assets and liabilities between the parties. The agreement also included a term whereby Father and Mother agreed that Father would waive his parenting time rights with Child in exchange for Mother assuming financial responsibility for Child and waiving enforcement of Father’s support arrearage that had accrued. The agreement added that, if Father ever sought parenting time in the future, he would be obligated to pay off the support arrearage.

In 2008, Father filed a petition to modify parenting time, seeking to establish parenting time with Child. The trial court denied Father’s petition, along with a subsequent motion to correct error.

In late 2010, Father filed a second petition to modify parenting time. A hearing was conducted, after which the trial court again denied Father’s petition. After additional motions to correct error filed by Father were also denied, Father appealed.  In early 2012, the Indiana Court of Appeals reversed and remanded the case in an unpublished opinion. (In a footnote, the Court of Appeals observed: “While we are uncertain that the agreement between Mother and Father would be enforceable of itself, we reach no conclusion on that issue, as we reverse the trial court’s decision on other grounds.”) The Indiana Supreme Court subsequently granted transfer.

The Supreme Court’s analysis began with a comprehensive review of applicable statutes and case law regarding the fundamental right to parenting, and the well-developed lineage of Indiana cases that stand for the proposition that the exercise of parenting time, and the obligation to pay child support, are not intertwined. The Court also reviewed the applicable statutes and cases addressing restrictions on parenting time because it presented a threat of physical endangerment or emotional impairment to the child. The Court also noted that the legal right to parenting time is a right held by not only the parent, but the child as well.

Noting that only extraordinary circumstances warrant no parenting time, yet also recognizing the discretion afforded to a trial court to make that determination, the Court turned to the facts of the case. The Court observed that the only evidence presented by Mother as to Child’s engagement from Father came from Mother’s own testimony that Father had been verbally abusive to her, and had neglected Child in the past – there was no evidence that Father had a criminal record, and no testimony from a GAL or therapist that parenting time should be restricted. This slender evidence, the Court concluded, was insufficient to overcome the strong presumption that the best interests of a child are served by meaningful parenting time.

In reversing and remanding the case, the Court also noted the options for proceeding with parenting time, including involving professionals to recommend a course for reunification.

To view the text of this opinion in its entirety, click here: Michael D. Perkinson, Jr. v. Kay Char Perkinson

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The Matrimonial Law Group of Bingham Greenebaum Doll, LLP is one of the largest full-service matrimonial and family law practices in the State of Indiana. We represent clients in a wide spectrum of family law matters, including premarital agreements, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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