Is Denying Visitation Grounds for a Change in Custody in Indiana?

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“I came across this on your website: “If your ex denies your visitation, you will need to go back to court. In some states denying visitation is grounds for a change in custody.”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

Can you tell me if Indiana is one of these states? My son is 9 years old and my ex wife has been regularly denying me visitation since we got divorced when my son was about 1 year old. I have been to court so many times. Just recently went to court April 2006 and my ex was found guilty of contempt. Since then I haven’t had any problems until today. Today was my scheduled weekday visitation and she again denied me visitation. I went to her house and she wasn’t home. I called her and she hung up on me. I called the police so now I have a police report. How can she keep getting away with this? I know she knows its driving me crazy when I can’t see my son. I am struggling financially and I have been laid off from work the past 3 weeks. I am back to work now though. I am not behind on child support. I can’t afford to go back to court and she knows that. Any suggestions on what I can or need to do to stop this? I live in Butler Indiana (Dekalb County) and my ex lives in Ohio. We live about 30 minutes from each other. Our divorce and visitation was done in Indiana. Child support was transferred to Ohio last year.”

I am not an attorney in Indiana, so all this should be verified with an attorney there. Indiana Code 31-17-4-2 provides: [t]he court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. Extensively in this Section (IC 31-17-4, that is) concerning non-custodial parent’s rights, procedures are outlined for getting injunctions against custodial parents, having them post bonds, getting restraining orders, holding them in contempt, having them pay fees and costs, having them perform community service and other remedies. All of these things would be filed in the Court that originally made the custody and visitation order in your case. In addition, in Illinois there also may be criminal liability for frustration of parental rights. Additionally, I saw provisions in the Illinois Code about “make up” time if you missed some timeshare. Should you get your TRO or injunction, IC 31-17-2-22 titled “Custodial parent’s violation of injunction or temporary restraining order considered in custody modification” provides: “[a]n intentional violation by a custodial parent of an injunction or a temporary restraining order issued under IC 31-17-4-4 or IC 31-17-4-5 (or IC 31-1-11.5-26 before its repeal) may be considered a relevant factor under section 8 of this chapter that the court must consider in a proceeding for a custody modification under section 21 of this chapter.” If the contempt conviction in April included an injunction or TRO, she may have given you one (more?) ground for modification of visitation, or indeed custody.

But that does not end the analysis. The Court will consider many factors. IC 31-17-2-21, “Modification of child custody order” provides: “(a) The court may not modify a child custody order unless: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter. (b) In making its determination, the court shall consider the factors listed under section 8 of this chapter. (c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this chapter.” The factors enumerated in Section IC 31-17-2-8 are: “(1) The age and sex of the child. (2) The wishes of the child’s parent or parents. (3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child’s parent or parents; (B) the child’s sibling; and (C) any other person who may significantly affect the child’s best interests. (5) The child’s adjustment to the child’s: (A) home; (B) school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent.” So based on the totality of circumstances, the Court will make a determination of your child’s best interests. So the violation of Court orders does not necessarily mean you will end up with custody – it is ONE factor in the court’s determination.

If you follow up with the police, you might want to see if they are going to refer the case to the State’s attorney. There may be ways to facilitate that. But waiting for State action that may never come can be frustrating. If you want to enforce your rights, you either need to find the resources to hire an attorney, learn how to file papers yourself, or find a pro bono service. If you do prevail, then you _may_ be awarded fees and costs of suit. This may be enough to convince someone in your life to take a chance on loaning you the necessary scratch to engage an attorney experienced in this area of law.

All of the things I have mentioned do not necessarily make relations better for the sake of your child. Usually cooperative co-parenting does. It is unfortunate that some people never learn. You either need to find a stable way of dealing with your ex, or you will be back and forth to Court for the next 18 years. There may be counseling avaiable to you to help you cope, and there may also be counseling avaiable to both you and the ex to learn how to cooperatively co-parent your child. Sometimes these things are covered by heath insurance.



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Author: House Attorney

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