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Parenting Time Cannot Be Bargained Away

 

In perhaps the most publicized family law case in recent times, the Indiana Supreme Court has reaffirmed long-established law that any agreement to contract away child support rights is directly contrary to the public policy of protecting the welfare of children and is therefore void.

Visitation rights and child support rights are separate issues, and both are rights possessed by the child. Indiana code 31-17-4-2 provides that parenting time should not be restricted unless time spent with that parent might endanger a child’s physical health or impair the child’s emotional development. Additionally, the child has a right to receive financial support from both parents. These rights should not be co-mingled by trading parenting time for reduced or eliminated support orders.

Justice David of the Indiana Supreme Court issued a strongly worded opinion including, “The concept of parents negotiating away parenting time as a means to limit the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be part of such discussion and should advise their clients that any such discussion is unacceptable.”  Perkinson v.  Perkinson, 989 N.E.2d 758 (Ind. 2013).

While parenting time can, by agreement of the parties, be reduced or eliminated as being in the best interests of the child, that determination should be based on potential danger to the child’s physical or emotional health. An agreement to reduce or eliminate child support should likewise be based on financial issues of the parties. While parents can agree to modify both child support and parenting time as being in the child’s best interest, what they should not do is base an elimination of parenting time on a parent’s desire not to pay child support, or vice versa.

Any parties considering an agreed order which varies substantially from the Indiana Parenting Time Guidelines or the Indiana Child Support Guidelines should seek the advice of an attorney regarding the proper drafting of such an agreement.