Tavitas, J.
Case Summary
J.L. (“Father”) appeals the trial court’s grant of an order for protection filed by M.M. (“Mother”) for the protection of Z.B.M.L. (“Child”). Father argues that Mother failed to demonstrate by a preponderance of the evidence that domestic or family violence occurred and that Father was, at a minimum, entitled to supervised parenting time. We conclude that the trial court did not err by granting the order for protection. The trial court, however, erred by prohibiting Father from having any contact with Child and denying Father parenting time for two years under the protection order. Accordingly, we affirm in part, reverse in part, and remand for the trial court to allow some supervised contact and/or therapeutic parenting time between Father and Child until this matter is addressed in the paternity action.
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Next, Father, relying in part upon the parenting time modification statute, claims that the trial court should have granted Father supervised parenting time in the protection order. Father’s argument requires that we consider the relationship between the protection order statutes and parenting time modification statutes…
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A. Protection Order Statutes
The purpose of an order for protection is to promote the “protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner” and to prevent future domestic violence and family violence. I.C. § 34-26-5-1. Thus, an order for protection can bring an immediate cessation of abuse. Here, the trial court entered an ex parte order and then properly transferred the matter to the paternity court for consideration of the protection order. [Footnote omitted.] The court then had thirty days to conduct a hearing on the petition. See I.C. § 34-26-5-10.
Indiana Code Section 34-26-5-9(d) provides….A trial court, thus, may deny parenting time or order supervised parenting time where an order for protection is granted. 3 The statutes allow for the issuance of an order for protection for a two-year period, or the trial court may choose a different length of time. See I.C. § 34-26-5-9 (“[A]n order for protection . . . is effective for two (2) years after the date of issuance unless another date is ordered by the court.”). The trial courts have discretion to determine the duration necessary to stop the violence.
We also note that Indiana Code Section 34-26-5-9(i) provides: “An order for custody, parenting time, or possession or control of property issued under this chapter is superseded by an order issued from a court exercising dissolution, legal separation, paternity, or guardianship jurisdiction over the parties.” Thus, the protection order is “superseded” by an order from the paternity court here.
B. Modification of Parenting Time Statute
Father argues that a restriction of his parenting time is governed by Indiana Code Section 31-17-4-2…“Although the statute uses the word ‘might,’ this Court has previously interpreted the language to mean that a court may not restrict parenting time unless that parenting time ‘would’ endanger the child’s physical health or emotional development.” S.M. v. A.A., 136 N.E.3d 227, 230 (Ind. Ct. App. 2019) (citing Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied).
C. Application
To resolve the different requirements for both an order for protection and a parenting time order, we must look to both statutes and harmonize them. The protection order statutes allow a trial court to move quickly where a child’s safety is in question. The protection order statutes offer expedited and ex parte proceedings to provide a “stop gap” to stabilize the situation until the trial court can determine the best interests of the child in a modification proceeding. The protection order statutes, however, should not be used as a de facto method to modify custody and/or parenting time.
A protection order is a useful tool to protect a child where there is no pending action to address parenting time or custody, such as where the parents are married and no court action is pending. In general, however, where a court is already addressing parenting time and/or custody in a proceeding, a protection order should not be used to modify custody and/or parenting time. The use of a protection order has the effect of criminalizing family law issues. For example, here, due to the protection order, Father would be subject to criminal penalties for sending Child a text, letter, or gift or attending Child’s sporting events or school functions, even though there is no evidence that Father would be a danger to Child at such public events.
These statutes also contain different standards. The modification of parenting time statute requires the trial court to restrict parenting time where such a restriction would serve the best interests of the child, but the protection order statutes do not specifically include a consideration of the best interests of the child. Moreover, although the trial court here found that domestic or family violence has occurred and that Father is a credible threat to Child’s safety— which warranted a protection order—the trial court did not find that all types of parenting time, including supervised parenting time, with Father would “endanger Child’s physical health or emotional development,” which is required to modify parenting time. I.C. § 31-17-4-2.
Furthermore, the two-year duration of the protection order here is concerning. Although a trial court has the statutory authority to issue an order for protection and deny parenting time for two years, such an extreme action should be undertaken in very limited circumstances, and the evidence here does not support such an order. We are not convinced that the two-year protection order was necessary to stop the violence. We note that, even where a parent has been convicted of domestic violence, there is a rebuttable presumption that the parent is entitled to supervised parenting time. [Footnote omitted.] A better practice is to stabilize the situation with a limited-duration protection order and fashion a parenting time order that implements supervised parenting time, therapeutic parenting time, and/or other methods so as not to eliminate the parent-child relationship completely unless absolutely necessary to protect the child. The complete deprivation of parenting time or contact for two years here gave Father no opportunity to rectify the issues between Father and Child and was not warranted here.
The trial court noted that Child was starting counseling and that the order for protection could be modified as the circumstances evolved. Custody, education, parenting time, and support issues were pending before the trial court in the paternity cause at the time the order for protection was issued. Given these circumstances, we conclude that the trial court erred by ordering a complete denial of parenting time and all contact for two years. Accordingly, we reverse the portion of the protection order that denied Father parenting time for two years. We remand with instructions to allow Father to have some contact with Child, including supervised or therapeutic parenting time between Father and Child until this matter is addressed in the paternity action.
Conclusion
The trial court did not err by granting the order for protection, but the restriction of no direct or indirect contact for two years was an abuse of discretion. The trial court erred by denying Father parenting time and all contact for two years under the protection order. Accordingly, we affirm in part, reverse in part, and remand for the trial court to amend the protection order to allow certain contact between Father and Child, including supervised and/or therapeutic parenting time with Child, and attendance at the Child’s school functions until this matter is addressed more fully in the paternity action.
Affirmed in part, reversed in part, and remanded.
Riley, J., and May, J., concur.