The parenting time schedule is an order of the court, just as much as a child support order, an order to split a 401(k), or an order giving specific personal property to one spouse or the other. Many times, the order setting out the schedule will include language such as “The parties are free to vary this schedule as they may from time to time agree” or may say that the schedule is “dependent on the children’s activities,” so that the parents have a little flexibility in rescheduling specific days or times.
But sometimes – and especially in very contested custody proceedings – the Court will include language that lets someone else set the schedule.
For example, the Court may include language that lets a counselor or family evaluator set a parenting schedule: “until such time as the family counselor, after consultation with Father’s counselor, and the P[arenting] C[oordinator] indicates there shall be an increase. The family counselor shall set the increases and delineate children involved and all changes to the above parenting time each time there is a change until the Parenting Time Guidelines are appropriate, recommended, and ordered by this Court.”
In Indiana, such delegation of judicial authority is unambiguously impermissible. “No statute permits this determination to be delegated to a caseworker, probation officer, guardian, or other authority, and to do so would be to undermine the safeguards inherent in reserving to a detached and impartial court the task of weighing the many considerations relevant to visitation. By authorizing the Family Connection Center to determine when supervised visitation is no longer needed and when the frequency of visitation may be increased, the court endowed that agency with judicial powers,” Paternity Of A.R.R, 634 N.E.2d 786, 789.
In other words, only the trial court is in the position of being able to weigh and consider the evidence presented to it concerning the parenting schedule, and to factor in the best interests of the children, while at the same time being statutorily mandated to preserve the parenting time of the non-custodial parent. Anyone else, like a family counselor or caseworker, may not have all the facts necessary to determine a schedule that is in the best interests of the children. Many times, they are not independent enough, in that these types of persons cannot separate the interests of the children (which the law presumes to be to spend as much time as possible with the non-custodial parent) from their subjective feelings about one parent or the other.
Also, the judge is the final authority on disagreements concerning the parenting schedule. In the example above, not only is no mechanism set forth to resolve disputes among differing recommendations of the respective professionals, but no system is set forth as to what factors are to be considered, what weight is to be given any particular recommendation or authority, or even what standard is to be used is making such determination – all of which are clearly defined and well-known to trial judges. It doesn’t mean the trial judge will make the decision that you want him or her to. But it does mean that the decision can be challenged more easily.
Trial courts can assign parenting coordinators, therapists, counselors, caseworkers, and whole host of people to work with the parents and with the children, to make sure that parenting time actually occurs, and with as few problems as possible. The court can require these people to issue reports to the court, so it is to your advantage to cooperate with them. But, generally speaking, only the court can decide to increase or decrease a parenting time schedule.