Would this warrant a modification?

[hire21618]

What is the name of your state? Indiana EDIT TO ADD: Original decree was signed May 26, 2021

This might be long - my apologies. My ex husband currently has supervised visitation by his mother per the Indiana Parenting Time Guidelines. After the court order, he only exercised seeing them a few hours every Saturday, then changed jobs where he works a swing shift and he asked for every other weekend. Per the Indiana Parenting Guidelines and our court order, he is allowed that as long as his mother supervises the entire time. He had been living with his mother since our divorce, and she has been present at every pick up/drop off since the court order came out. I suspected, but had no proof, that she was not actually supervising the entire visitation. He has a history of harassing me via text/phone, so all of our non-emergency communication is to go through the Talking Parents app per our court order.

He was to have our two boys (5, 2) from December 17 at 6pm to December 19 at 6pm. At 5:20pm on December 18 I received a Facebook message from his mother that my ex is no longer allowed in her house. I called her within minutes and she states she was going to let him finish out his visitation for the weekend but he continued to be disrespectful so he needed to leave immediately. I called his cell phone and he stated he was leaving and taking the boys to a hotel. I told him that violated the court order and asked that they meet me at our usual meeting spot (we live about 30-35 minutes away from each other and typically exchange at a gas station halfway). He told me he refused to drive his car there so I would need to make the full drive or suck it up and trust him alone with the boys. I told him to text me the address and I was leaving immediately. I didn't get a text from him so I messaged his mom - she stated he left the boys with her and she would meet me at our usual spot.

When she arrived, I asked what happened. She basically stated that he became disrespectful and she wasn't putting up with it in her own house. She states she "won't lie for him or cover for him, and I'll be the first to turn him in" which led to me asking if he was using drugs or drinking. She said she didn't think he was doing drugs, she hadn't witnessed him drinking, but 'for him to be acting that way he has to be on something.' She states she will not allow him in her home, and therefore cannot supervise.

Here is the current wording of our divorce decree:
3.1. The Court finds that exercise of unsupervised parenting time by Father would endanger the physical health of the children, or significantly impart the children's emotional development. The Court thus finds that it is in the best interest of the children that Father's parenting time be supervised.
3.2 Father's parenting time shall be supervised by paternal grandmother, XXX. The supervisor shall supervise the parenting time and remain in visual and hearing distance at all times. The first two parenting times shall take place in a public location. Following the two public location visitations, Father's parenting time shall be set forth in the Indiana Parenting Time Guidelines, including holidays and extended time, subject to the supervisor's ability to supervise parenting time.
3.3 If paternal grandmother is unwilling to supervise parenting time, then Father's parenting time shall be supervised by Family Connections, subject to their availability and restrictions. The parties shall each pay one-half (1/2) of the cost of supervised parenting time. Family Connections may be reached at xxx.xxx.xxxx.

I sent him a recap message through Talking Parents as given our current court order, I knew that I can now require visits to go through Family Connections. He responded and agreed to use Family Connections, and also admitted that his mother has not ever fully supervised the visits - so I have an in writing admission that he has been violating the court order.

I used Indiana Legal Services for my divorce so I am not currently represented. I know that given the wording of the court order I can require that he go through the supervised facility for visits going forward, especially since he has admitted to violating the court order and his mother not supervising. My question is:

a) can I file a modification to remover as the supervisor since she is clearly not an appropriate supervisor if she isn't going to be present the entire time and he's not able to get along with her? (For the record, he has never had a good relationship with his mother, and I voiced concerns to the magistrate when he suggested her as the supervisor)
b) can I file a modification requesting that he be responsible for the full cost of the supervised facility visits? The reason he asked for someone else to supervise is because he claimed he could not afford the visits through the facility, which is what he was ordered during our provisional orders. He is now at a new job making $3-4 more per hour so this should not be an issue any longer. I also feel it's unreasonable and unfair that I should have to pay for part of the visits given it's not my fault they have to be supervised in the first place, and it's not my fault he can't be respectful to his mother for 48 hours twice a month.

I would be using the self-help forms to file for modification pro se. Any advice appreciated.

 

[Zigner]

a) can I file a modification to remover as the supervisor since she is clearly not an appropriate supervisor if she isn't going to be present the entire time and he's not able to get along with her? (For the record, he has never had a good relationship with his mother, and I voiced concerns to the magistrate when he suggested her as the supervisor)

Yes, you can. Frankly, though, it's a waste of time. There's no reason for the change, as the order already addresses this situation.

b) can I file a modification requesting that he be responsible for the full cost of the supervised facility visits? The reason he asked for someone else to supervise is because he claimed he could not afford the visits through the facility, which is what he was ordered during our provisional orders. He is now at a new job making $3-4 more per hour so this should not be an issue any longer. I also feel it's unreasonable and unfair that I should have to pay for part of the visits given it's not my fault they have to be supervised in the first place, and it's not my fault he can't be respectful to his mother for 48 hours twice a month.

If you had a problem paying half, then you should have objected to it from get-go.

 

[hire21618]

Yes, you can. Frankly, though, it's a waste of time. There's no reason for the change, as the order already addresses this situation.
If you had a problem paying half, then you should have objected to it from get-go.

Thank you - I wondered if it was worth it since the order addresses what happens if she can't supervise.

The judge actually made the final order on her own, so it was very up in the air until she issued the final decree. At that time he had not had visitation for 4 months. I did discuss it with my lawyer, but we didn't feel he would exercise any visitation at all, let alone get to the point where he had to go through the facility. It took him almost 2 full months after the court order came out to ask for visitation, and then it was just a couple hours every week and not even following the guidelines. I'm not sure now, even though he agreed, if he will actually call and set it up. So yes, I should have objected early on but was basically advised that it wouldn't be worth it.

 

[Zigner]

Thank you - I wondered if it was worth it since the order addresses what happens if she can't supervise.

No, it addresses what will happen if she is unwilling to supervise (per your first post in this thread).

Do you think he's going to arrange and pay for half of the supervision? Do you know that the provider will even be able accept your application at this time?

 

[hire21618]

No, it addresses what will happen if she is unwilling to supervise (per your first post in this thread).

Do you think he's going to arrange and pay for half of the supervision? Do you know that the provider will even be able accept your application at this time?

I do not think he will actually set up visitation. He was ordered to go through a facility during our provisional orders and flat out refused, at one point even stating he was going to ask the judge to sign his rights away. When we went to the final hearing he stated it was unfair that he had to pay for supervision because he couldn't afford it. She asked if he had someone else in mind who could supervise, and he suggested his mother. At that point I voice numerous concerns over this as an option - including that she did not have an established relationship with our kids who she didn't even meet until our 5 year old was 4, and only saw them maybe 2-3 times in total. The judge took it all under advisement and came up with the current order.

Despite being ordered the regular once weekly visit and every other weekend, he only asked to see them for 2 hours every Saturday. It took 1 month (my previous comment was incorrect after reviewing my records) after the final divorce decree for him to ask for this. He cancelled 5 of those weekly visits. He just started every other weekend at the end of September. He has cancelled 2 of those, 3 if you include this partial visit last weekend. So he is very much inconsistent and doesn't even take the amount of time he's ordered.

I'm not sure if the facility can accept him at this time, but it is the only facility in our town that does supervised visits so I assume they must have to work it out somehow. I don't know as I've never gone through this before. It's my understanding that it is his responsibility to call and set up the visitation.

 

[LdiJ]

What is the name of your state? Indiana EDIT TO ADD: Original decree was signed May 26, 2021

This might be long - my apologies. My ex husband currently has supervised visitation by his mother per the Indiana Parenting Time Guidelines. After the court order, he only exercised seeing them a few hours every Saturday, then changed jobs where he works a swing shift and he asked for every other weekend. Per the Indiana Parenting Guidelines and our court order, he is allowed that as long as his mother supervises the entire time. He had been living with his mother since our divorce, and she has been present at every pick up/drop off since the court order came out. I suspected, but had no proof, that she was not actually supervising the entire visitation. He has a history of harassing me via text/phone, so all of our non-emergency communication is to go through the Talking Parents app per our court order.

He was to have our two boys (5, 2) from December 17 at 6pm to December 19 at 6pm. At 5:20pm on December 18 I received a Facebook message from his mother that my ex is no longer allowed in her house. I called her within minutes and she states she was going to let him finish out his visitation for the weekend but he continued to be disrespectful so he needed to leave immediately. I called his cell phone and he stated he was leaving and taking the boys to a hotel. I told him that violated the court order and asked that they meet me at our usual meeting spot (we live about 30-35 minutes away from each other and typically exchange at a gas station halfway). He told me he refused to drive his car there so I would need to make the full drive or suck it up and trust him alone with the boys. I told him to text me the address and I was leaving immediately. I didn't get a text from him so I messaged his mom - she stated he left the boys with her and she would meet me at our usual spot.

When she arrived, I asked what happened. She basically stated that he became disrespectful and she wasn't putting up with it in her own house. She states she "won't lie for him or cover for him, and I'll be the first to turn him in" which led to me asking if he was using drugs or drinking. She said she didn't think he was doing drugs, she hadn't witnessed him drinking, but 'for him to be acting that way he has to be on something.' She states she will not allow him in her home, and therefore cannot supervise.

Here is the current wording of our divorce decree:
3.1. The Court finds that exercise of unsupervised parenting time by Father would endanger the physical health of the children, or significantly impart the children's emotional development. The Court thus finds that it is in the best interest of the children that Father's parenting time be supervised.
3.2 Father's parenting time shall be supervised by paternal grandmother, XXX. The supervisor shall supervise the parenting time and remain in visual and hearing distance at all times. The first two parenting times shall take place in a public location. Following the two public location visitations, Father's parenting time shall be set forth in the Indiana Parenting Time Guidelines, including holidays and extended time, subject to the supervisor's ability to supervise parenting time.
3.3 If paternal grandmother is unwilling to supervise parenting time, then Father's parenting time shall be supervised by Family Connections, subject to their availability and restrictions. The parties shall each pay one-half (1/2) of the cost of supervised parenting time. Family Connections may be reached at xxx.xxx.xxxx.

I sent him a recap message through Talking Parents as given our current court order, I knew that I can now require visits to go through Family Connections. He responded and agreed to use Family Connections, and also admitted that his mother has not ever fully supervised the visits - so I have an in writing admission that he has been violating the court order.

I used Indiana Legal Services for my divorce so I am not currently represented. I know that given the wording of the court order I can require that he go through the supervised facility for visits going forward, especially since he has admitted to violating the court order and his mother not supervising. My question is:

a) can I file a modification to remover as the supervisor since she is clearly not an appropriate supervisor if she isn't going to be present the entire time and he's not able to get along with her? (For the record, he has never had a good relationship with his mother, and I voiced concerns to the magistrate when he suggested her as the supervisor)
b) can I file a modification requesting that he be responsible for the full cost of the supervised facility visits? The reason he asked for someone else to supervise is because he claimed he could not afford the visits through the facility, which is what he was ordered during our provisional orders. He is now at a new job making $3-4 more per hour so this should not be an issue any longer. I also feel it's unreasonable and unfair that I should have to pay for part of the visits given it's not my fault they have to be supervised in the first place, and it's not my fault he can't be respectful to his mother for 48 hours twice a month.

I would be using the self-help forms to file for modification pro se. Any advice appreciated.

Filing to remove her as the supervisor would be pointless considering that the order already spells out what happens if she is no longer able/willing to supervise.

You might have a basis to file for a modification that you don't have to share in the costs of the supervised visitation. Your basis to do that would be that things have changed (ie he is making more money and therefore can afford the supervised visits better) and that his mother actually refuses to supervise due to his behavior with her. I cannot guarantee you will win because I don't know why the judge ordered that you were to share in the cost in the first place. It was a somewhat odd thing for a judge to order.

However I wouldn't do either one until you see whether or not dad is actually going to take the initiative to get supervised visitation set up unless it would be such an economic hardship for you to start with that you must try to pre-empt it happening even for a short time.

 

[not2cleverRed]

I do not think he will actually set up visitation. He was ordered to go through a facility during our provisional orders and flat out refused, at one point even stating he was going to ask the judge to sign his rights away.

Then wait until he actually schedules visits with some regularity and the $ becomes an issue. Don't file for a modification based on what may be a hypothetical - because you don't know if he'll actually set up visitation.

Bonus in doing this: If he doesn't set up anything, it's totally on him - he can't use $ as an excuse if he's not paying. This shows a pattern.

If he does show up, and gets his act together to the point where it becomes a financial issue for you, it will mean he's a changed man.