Split COA Reverses Mother’s Contempt Finding Over Parenting Time Sessions
Jennifer Nelson for www.theindianalwyer.com
A mother’s appeal of the order finding her in contempt for not bringing her child to supervised parenting time sessions at a facility drew three opinions from a panel of the Indiana Court of Appeals Friday. The majority agreed to reverse after holding the parenting time order improperly delegated parental authority to the facility.
Mother B.D. had daughter J.W. in 2009, and father J.P.’s paternity was established in 2012, when he was in prison for battery upon B.D. When he was released from prison, father sought parenting time. Mother had full custody and argued if he was granted parenting time, it should be under supervision. A May 2016 order granted father limited parenting time under the supervision and control of the Community Anti-Violence Alliance Family Ties program in Angola. His supervised visits were outlined in the order, which also allowed the parties by mutual agreement to alter the days and times.
Father had therapeutic sessions with Family Ties therapist Jeff Lewis, with which daughter J.W. participated. At some point, mother did not agree with her daughter receiving therapeutic sessions at Family Ties and wanted a different person to supervise the visits. She also asked the court to have parenting time relocated to the Children First Center because neither party lived in Angola anymore and it was a two-hour round trip to Family Ties.
Family Ties tried to reschedule the times, but mother said they conflicted with daughter’s exiting gymnastics practices or for other reasons. That’s when father filed a petition for contempt. The court denied mother’s motion to move the parenting time location, and found her in contempt for denying parenting time. She was ordered to serve 30 days in jail or pay a portion of father’s attorney fees.
In her appeal, in which father did not file an appellate brief, mother maintained the court infringed upon her parental rights to decide as to what type of parenting sessions would be conducted, who would conduct the sessions and when they would occur.
Judges L. Mark Bailey and Margret Robb voted to reverse the contempt order, but cited different reasons. Bailey cited Matter of A.R.R., 634 N.E.2d 786 (Ind. Ct. App. 1994), a parenting time order reversed by the COA that gave a service agency authority that properly resided with the parent. The majority also pointed out that the court ordered the father to participate in therapeutic counseling, not the child, so Family Ties had no authority to impose that element on the parenting time session.
Chief Judge Nancy Vaidik in her dissent maintained that if mother was unhappy with the trial court allowing Family Ties the discretion to decide if the supervised visits should be therapeutic in nature, she should have appealed within 30 days, but did not. To this point, Robb in her concurring opinion with Bailey, said the order as written did not put undue burdens on mother and therefore she had nothing to appeal. It wasn’t until Family Ties began exercising its limited discretion that was outside of the bounds of the order that the issue arose.
Vaidik also maintained that even if mother disagreed with the court order, it was still in effect when she petitioned to change locations and should have abided by it until the court ruled on her motion.
The case is In the Paternity of J.W., 76A04-1610-JP-2476.