Questions

[Imom]

This is for a friend, her ex in laws were awarded gardianship of her to children. She was awarded visitation.  Here is what the co reads as for visitation.

16.  It is also in the children's best interest that they enjoy generous visitation with their mother. Therefore, the Court imposes the Indiana Parenting Time Guidelines in this case, with the addition of parenting time with xxx for several hours each Saturday or Sunday the children do not have visitation with her according to the Guidelines. To the extent this visitation conflicts with the Natural Father's parenting time, his time is modified due to the fact he lives with the Petitioners and may see the children at all times they do not have parenting time with xxx.      

The guidelines are the normal e/o weekend and mid week visit with alternating holidays.

The ex in-laws state that the father has rights too, the extra vist on her non weekend was put in by mistake. And have only allowed the one extra visit thats ordered which this weekend should have been another but they were not home.

My friends attorney has filed an appeal on the gardianship matter (she did not have an attorney at the time, long story).

For the mid-week visit they are only allowing three hours, however they are allowing her 2 1/2 extra hours during her weekends with the guidelines so you could say that rather evens out.

The guidelines state the following for reg. visits v. Holidays.

1.  Conflicts Between Regular and Holiday Weekends.  

The Holiday Parenting Time Schedule shall take precedence over regularly scheduled and extended parenting time.  Extended parenting time takes precedence over regular parenting time unless otherwise indicated in these Guidelines.

If the non-custodial parent misses a regular weekend because it is the custodial parent's holiday, the regular alternating parenting time schedule will resume following the holiday.  If the non-custodial parent receives two consecutive weekends because of a holiday, the regular alternating parenting time schedule will resume the following weekend with the custodial parent.


This year would be the gp's year for New Years Eve/Day Holiday this  is how the guideline reads:

[1]  New Year's Eve and New Year's Day.  (The date of the new year will determine odd or even year).  From December 30th at 7:00 P.M to 7:00 P.M. of the evening before school resumes.


But the youngest child's B-day is December 31 and this is how the guidelines read for that:  

[3] 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.    


1. Would the mother still get her extra visit on Saturday or Sunday as in the court order over holidays or is it considered a reg. visit?

2. Would the mother still be intitled to the child for the youngest B-day even though its during a Holiday?

[socrateaser]

>1. Would the mother still get her extra visit on Saturday or
>Sunday as in the court order over holidays or is it considered
>a reg. visit?

Holiday schedule takes precedent over regularly scheduled visits, therefore no extra visit during holiday.

>
>2. Would the mother still be intitled to the child for the
>youngest B-day even though its during a Holiday?
>

Holiday schedule takes precedent over extended schedule visits, therefore no extra day for bday that conflicts with holiday schedule.

[Imom]

>2. Would the mother still be intitled to the child for the
>youngest B-day even though its during a Holiday?
>

Holiday schedule takes precedent over extended schedule visits, therefore no extra day for bday that conflicts with holiday schedule.



This is where we are really confused as Birthday's, etc. ARE listed under holiday's too. Its not listed under extended visits or are we reading it wrong.

[socrateaser]

>This is where we are really confused as Birthday's, etc. ARE
>listed under holiday's too. Its not listed under extended
>visits or are we reading it wrong.

Well, that's a horse of a different color. You didn't post the headings, so I took it to mean that a bday is regular/extended time. But, if both Bdays and Holidays are considered holiday time under the guidelines, then I would say that the Indiana Guidelines are ambiguous and that you're best bet is to pay a local family law attorney who regularly practices before the judge who wrote your order, to decipher the order and send a letter to the other parent explaning it, assuming that the interpretation supports your position.

The reason why you want an attorney who knows the judge, is because he/she will know how the judge would likely rule on this sort of thing.

Other than that, you will need to file a motion with the court to clarify the ambiguity -- I can't, because, well, because it could be interpreted either way.

And, of course, there's always negotiating with the other party. But, just so you're aware -- custody orders aren't up for negotiating, from a strictly legal viewpoint. They are ORDERS, and they are not optional or modifiable, except by the court, and they instruct both parties when they are to exercise custody/visitation.

You make a long term mistake if you begin to routinely alter the orders with the other parent's consent, because you establish a false sense that what you are doing has some legal weight. It doesn't.

Absent a modification of the parenting plan, you are both supposed to do EXACTLY what it says (assuming that you can figure out what to do in conflicting situations, that is).

Anyways, happy holidays!

[Imom]

Thanks. I do understand you. When I said they allow 2 1/2 extra ours on her weekends is because.......the Guidelines do state e/o 6pm Friday-6pm Sunday..but also state the times can be adjusted to fit the parents schedules.....so they agreed to 4:30 pm Friday until 7 pm Sunday. I have explained to her that if they get a stick up there butts and refuse to give the kids to her until 6pm or pick up at 6 pm ... there is nothing she can do.



The biggest issue is the several Hours on Saturday or Sunday she does not have the kids with the Guidelines. They say and (their lawyer) it was put in by mistake.....as the father does not live with them.  (Their lawyer typed it lol.)  And that he has rights too, so she can not have them.


The gardianship issue is in appeals (just started though), and her attorney just does not want to push the visitation issue, We don't understand that....I am sure you may???? We don't even understand how the appeal works so you can see how lost we are.

However, if the appeal comes back not in my friends favor can she still file contempt for then not allowing the several hour visit on Saturday or Sunday she does not have the kids with the Guidelines. Dating back to this weekend?

[socrateaser]

>However, if the appeal comes back not in my friends favor can
>she still file contempt for then not allowing the several hour
>visit on Saturday or Sunday she does not have the kids with
>the Guidelines. Dating back to this weekend?

No, I don't understand why you would not push the visitation issue, except that you may not have clear and convincing proof that the other party is routinely disobeying the court order. Otherwise, it's contempt, and that would give you some leverage for a settlement.

Can you file for contempt later? Sure, but you need strong independent proof, or an admission from the other party that he/she is routinely frustrating your visitation contrary to the court order. And, I suspect that your attorney doesn't think you havfe it, or he/she would file for contempt.