Michael D. Perkinson, Jr. v. Kay Char Perkinson
2013 Ind. LEXIS 504
| Ind. | 2013Background
- Michael D. Perkinson (Father) and Kay Char Perkinson (Mother) divorced; decree (2006) approved an agreement where Father waived parenting time in exchange for Mother assuming financial responsibility and waiving enforcement of child support arrearages.
- The agreement also stated that if Father later sought parenting time he would be obligated to pay any support arrearage through the approval date.
- Father later petitioned twice (2008, 2010–11) to modify parenting time; the trial court denied his requests and barred all parenting time, finding visitation would cause significant emotional harm.
- Mother presented primarily her own testimony; there were no DCS reports, therapist reports, guardian ad litem or other expert evidence that parenting time would endanger the child.
- The Court of Appeals reversed and the Indiana Supreme Court granted transfer to decide (1) whether parents can contract away parenting time/support and (2) whether the trial court’s denial of all parenting time was supported by sufficient findings and evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether parents may contract away a child’s right to support or parenting time | Mother: Parties agreed; agreement approved by court, so it should be enforced | Father: Agreement is unenforceable to the extent it waives child’s rights; he sought to reestablish parenting time | Court: Agreements waiving a child’s right to support or presumptive parenting time are void as against public policy |
| Whether conditioning parenting time on payment of arrearages is permissible | Mother: Clause requiring arrearage payment before visitation is valid and discourages reentry | Father: Visitation and support are separate; cannot condition visitation on payment | Court: Cannot condition visitation on payment of child support; issues must not be commingled |
| Standard required to eliminate or severely restrict parenting time | Mother: Trial court found time would cause significant emotional harm — sufficient | Father: Trial court lacked specific factual findings showing parenting time "would" endanger the child | Court: Extraordinary facts must exist to deny parenting time; the statutory "might" is construed to require a showing that visitation "would" endanger or significantly impair the child, with specific findings required |
| Whether the trial court’s denial of all parenting time here was supported by evidence | Mother: Her testimony showed father’s past verbal abuse and neglect; court’s decision was in child’s best interest | Father: Record lacks corroborating evidence (experts, DCS, GAL); only mother’s testimony insufficient; court provided no remedial path (supervision, phased reunification) | Court: Reversed — mother’s testimony alone here was insufficient to meet the high threshold; trial court abused discretion by denying all parenting time without specific, supported findings or considering less restrictive alternatives |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (2000) (parental liberty interest in childrearing is fundamental)
- Straub v. B.M.T., 645 N.E.2d 597 (Ind. 1994) (agreements purporting to contract away child support rights violate public policy)
- Nill v. Martin, 686 N.E.2d 116 (Ind. 1997) (custodial parent holds support in trust and may not contract away benefits of the trust)
- Stewart v. Stewart, 521 N.E.2d 956 (Ind. Ct. App. 1988) (statute construed to require showing visitation "would" — not merely "might" — endanger child)
- Sickels v. State, 982 N.E.2d 1010 (Ind. 2013) (right to child support lies with the child; custodial parent acts as trustee of support)
- Halum v. Halum, 492 N.E.2d 30 (Ind. Ct. App. 1986) (custodial parent may not bargain away child support)
- D.B. v. M.B.V., 913 N.E.2d 1271 (Ind. Ct. App. 2009) (courts should consider supervised visitation and avoid eliminating parenting time absent egregious circumstances)
- In re Paternity of P.B., 932 N.E.2d 712 (Ind. Ct. App. 2010) (terminating parenting time effectively severs parent-child relationship and must be supported by strong evidence)
- Farrell v. Littell, 790 N.E.2d 612 (Ind. Ct. App. 2003) (trial court must make specific findings that visitation would endanger child before restricting it)
- Duncan v. Duncan, 843 N.E.2d 966 (Ind. Ct. App. 2006) (denial of parenting time requires specific supportive findings; extreme facts may justify restriction)