Originally published on the Indianapolis Bar Association website, February 21, 2019
If you’re a family law practitioner, you always hope that your clients who are co-parents can figure out their own parenting plan and adjust it as necessary when life happens. The best scenarios are when parents are flexible and child-focused in their plans. But what happens when they are not?
One of the most common areas my clients and even reasonable attorneys fight about is the “opportunity for additional parenting time” versus “make-up time” under the Indiana Parenting Time Guidelines (IPTG).
For those who don’t wade into the shark-infested waters that are family law, the opportunity for additional parenting time (commonly – yet mistakenly – still referred to as the “right of first refusal”) arises when a parent is unable to exercise his or her parenting time for any reason and there is no adult household family member related to the child by blood or marriage who is available to provide the childcare. I am told that “in the time before,” there was a provision in the IPTG that the opportunity for additional parenting time included a three- or four-hour minimum before it kicked in, depending upon whom you ask. This has not been part of the IPTG since at least 2001 and as a result has led to parents sparring about the occasional trip to Costco or the time after little Johnny gets off the school bus and before the parent gets home from work. To avoid parents fighting over time, best practices suggest that attorneys include an amount of time that will trigger the opportunity when drafting agreements.
A careful reading of the IPTG reveals that a parent being unable to exercise his or her time does not trigger make-up time. An opportunity for additional parenting time occurs, pursuant to IPTG, Section I(C)(3), when the parent who has parenting time is unable to personally care for the child. If there is no “responsible household family member” available (such as a step-parent, live-in grandparent, or older child), “the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the childcare by the other parent is practical considering the time available and the distance between residences. The other parent is under no obligation to provide the childcare.” (Emphasis added.) If the parent who is not supposed to be exercising the parenting time cannot provide childcare, guess what? The parent needing care must find a suitable sitter, whether that’s Grandma, Uncle Joe or Susie from down the street. If an alternate sitter is found, can the parent get make-up time from the sitter? The answer is no, of course not. If the time could not be made up, but for a parent providing the care, then the make-up time provisions in the IPTG are not triggered.
Make-up time, pursuant to IPTG, Section I(C)(2), occurs “whenever there is a need to adjust the established parenting schedules because of events outside the normal family routine.” That’s pretty vague, right? But the commentary suggests “occasions when scheduled parenting time may need to be adjusted because of illness or special family events such as weddings, funerals, reunions and the like. Each parent should accommodate the other in making the adjustment so that the child may attend the family event.” (Emphasis added.) The make-up time language further goes on to provide, “if an adjustment results in one parent losing scheduled parenting time with the child, ‘make-up’ time should be exercised as soon as possible.” (Emphasis added.) I read this to suggest that if a parent desires to take a child to an event that is occurring on the other parent’s parenting time, such that the other parent would lose some regularly scheduled time with the child, then make-up time should be offered, preferably in the request for the time.
So, in summary: is Dad unmarried and has to go out of town for work? Opportunity for additional parenting time. Is it Dad’s weekend but Mom’s sister is getting married and the child is in the wedding? Dad gets make-up time. Setting these rules and expectations for parents who don’t deal well “in the gray areas” can save your clients a great deal of headache down the road.