By Robin L. Kelly, Mitchell Law Group
The following is how the latest version of the Indiana Parenting Time Guidelines (IPTG) addresses each parent’s allotted parenting time on each child’s birthday (II(F)(2)(A):
"Child's Birthday. In even numbered years, the non-custodial parent shall have all of the children on each child's birthday from 9:00 a.m. until 9:00 p.m. However, if the birthday falls on a school day, then from 5:00 p.m. until 8:00 p.m.
In odd numbered years, the non-custodial parent shall have all of the children on each child's birthday on the day before the child's birthday from 9:00 a.m. until 9:00 p.m. However, if such day falls on a school day, then from 5:00 p.m. until 8:00 p.m."
If you were paying attention as you read, you should be asking yourself, “But what about the parent who follows the holiday schedule for ‘Custodial Parent’? Isn’t he/she awarded any parenting time on each child’s birthday?”
Pursuant to the plain language of the Guidelines, the technical answer is: NO. You may have assumed that the custodial parent would be entitled to the inverse of what is specifically delineated for the non-custodial parent. You may also have assumed that from a fair and equitable standpoint the custodial parent should receive the inverse of what is specifically delineated for the non-custodial parent. Unfortunately, those assumptions would be wrong according to some judges and some of your fellow family law attorneys.
There are judges who interpret the wording above to mean that parents who follow the holiday schedule for “Custodial Parent” have no right to parenting time with any of the children on any of their birthdays, unless 1) the birthday happens to fall during the custodial parent's regular PT and 2) it’s not an even-numbered year (because then the parent following the schedule for “Non-custodial Parent” gets it.) This is true even in 50/50, joint physical parenting time cases, where the original delineation of which party follows which holiday schedule was probably arbitrary.
The sad but inevitable result of our adversarial system is that each of us must seriously consider adding verbiage to our settlement agreements that clearly give the parent who follows the holiday schedule for “Custodial Parent” a right to parenting time on each child’s birthday. Otherwise, you could be explaining to your client in a year or two why he/she doesn’t get to see any of the children on any of their respective birthdays.
This post was written by Robin L. Kelly of Mitchell Law Group. If you would like to submit content or write an article for the Family Law Section page, please email Mary Kay Price at email@example.com.