While any appeal can be stressful and a source of anxiety, those involving child custody and parenting time might be the most trying. No parent wants to imagine separation from their child for more than a very short period of time or being forced to leave the child in the care of an unfit parent for any length of time at all. Whenever a final order is issued in a case involving parenting time, a party unhappy with the determination may appeal the decision to the court of appeals. This blog discusses navigating parenting time appeals in Indiana and what you need to know at each stage of the process.
Parenting time is governed by Indiana’s parenting time rights of non-custodial parent statutes (I.C. 31-17-4) and the Indiana Parenting Time Guidelines. Section one of the code provides that a non-custodial parent shall have reasonable parenting time with the child unless the court finds, after hearing, that parenting time might “endanger the child's physical health or significantly impair the child's emotional development.” (I.C. 31-17-4-1(a)). The parenting time guidelines are meant to represent the minimum time a parent should have in order to maintain frequent, meaningful, and continuing contact with the child (Ind. Par. Time. Guid. pmbl.). That being said, trial judges have been granted a great deal of latitude and discretion when making parenting time determinations and the appellate court will defer to the trial court when reviewing such a determination, reversing only when the trial court has abused its discretion (Padilla v. Weddle-Meekins, No. 22A-JP-3000 (Ind. App. Sep. 1, 2023)). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts before the court (Weaver v. Weaver, No. 22A-DC-2111 (Ind. App. Aug. 30, 2023)).
Whether the custodial or the non-custodial parent, if you are unhappy with the courts final parenting time order, you have the right to appeal the decision to the Indiana court of appeals. The court of appeals must accept your appeal (Indiana Court of Appeals) and review the case for an abuse of discretion by the trial court. You must file your notice of appeal within 30 days of the issuance of the final determination to initiate the appeal (Ind. App. R. 9(A)(1)). If your trial attorney is not also an experienced appellate attorney, it might be wise to spend the first half of the 30 days finding an appellate attorney to handle your appeal.
Once the notice of appeal is filed, the court reporter will have 45 days to prepare and file a transcript of any hearing(s) for which you requested one (Ind. App. R. (11)(B)), and the court clerk 30 days to forward the clerk’s record, which includes the chronological case summary as well as any tangible evidence, to the appellate court (Ind. App. R. 10(C)). It is important to understand that you may not hear from your attorney during this “waiting period” as there will be nothing to report and very little to nothing to discuss. The appellate court will not be conducting a new hearing, allowing additional evidence or testimony, or deciding the case. It will simply review the transcript(s) and evidence from the trial court, read each parties argument, or brief, and then decide if the trial court abused its discretion and the decision should be reversed, or if it did not abuse its discretion and the decision should be affirmed, or left alone.
Upon filing of the record and transcript(s) the party appealing the trial court’s decision then has 30 days to submit its appellant’s brief (Ind. App. R. 45(B)(1)). The brief will include, among other things, the facts of the case, as derived from the transcript of the witness testimony or submission of tangible evidence such as documents, text messages, or videos, the issue being appealed, and a legal argument that the trial court’s decision was an abuse of its discretion. Once filed, the non-appealing party then has 30 days to submit the appellee’s brief (Ind. App. R. 45(B)(2)). Again, depending on how your attorney works, he or she may or may not need to speak with you during this process. Appeals hinge only on what happened in the trial court. No new facts or evidence can be considered, and the appellate court will not reweigh the evidence admitted in the trial court, nor judge witness credibility (Axia Holdings, LLC v. Bell, No. 23A-PL-730 (Ind. App. Aug. 24, 2023)). It will determine what happened in the trial court based solely on the transcripts, pleadings filed by the parties, and orders issued by the court. An opinion will be issued approximately six months from the date of filing the notice of appeal (Indiana Judicial Branch), stating whether the trial courts judgment concerning the appealed issue(s) is affirmed (left alone) or reversed (overturned).
If you have already initiated a parenting time appeal, or considering doing so, the experienced attorneys at Ciyou & Associates, P.C. can help protect both your child’s and your rights.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.