Opinion

Kenneth Bardonner v. Veronika Bardonner

Court
Indiana Court of Appeals
Filed
Mar 12, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 15.5%

The opinion

FILED

Mar 12 2024, 9:19 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Court of Appeals of Indiana

Kenneth E. Bardonner,

Appellant-Respondent

v.

Veronika Bardonner,

Appellee-Petitioner

March 12, 2024

Court of Appeals Case No.

23A-DC-1393

Appeal from the Monroe Circuit Court

The Honorable Catherine B. Stafford, Judge

Trial Court Cause No.

53C04-1504-DR-192

Opinion by Judge Mathias

Judges Tavitas and Weissmann concur.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 1 of 22

Mathias, Judge.

[1] Kenneth Bardonner (“Father”) appeals the trial court’s order modifying his

parenting time with his child, K.V.B. (“Child”). Father presents two issues for

our review:

1. Whether the trial court’s order prohibiting Father from taking

Child to church services or church-related events violates his

rights under the First Amendment to the United States

Constitution or is otherwise erroneous.

2. Whether the trial court clearly erred when it modified his

parenting time with Child.

[2] We affirm.

Facts and Procedural History

[3] Father and Veronika Bardonner were married, and they had two Children

together, Child and W.B. (collectively “the Children”), who were born

February 12, 2011. In April 2015, Mother filed a petition for dissolution of the

marriage. While that petition was pending, Father underwent a psychological

evaluation with Dr. Jennifer Spencer, and she filed her report with the trial

court.

[4] Dr. Spencer “diagnosed Father as having narcissistic personality and

exhibitionism disorders. She was concerned about Father’s inappropriate sexual

boundaries, his attitudes toward women, his self-focus, and his lack of

empathy.” Appellant’s App. Vol. 2, p. 72. “Based on these concerns, . . . [the

trial] Court had encouraged Father to seek counseling to learn how to self-

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 2 of 22

monitor his thoughts and behaviors that could impact his children negatively.

Father did not engage in the recommended counseling.” Id. The trial court

issued the dissolution decree in September 2016, awarding custody of the

Children to Mother, with Father exercising parenting time.

[5] At some point, W.B. died. In June 2017, Father filed a petition to modify

custody of Child. 1 After a hearing on that petition and other pending motions,

on May 22, 2018, the trial court issued an order denying Father’s petition to

modify custody. In particular, the court found as follows:

6. There has been no change in the conflictual nature of the

relationship between Mother and Father. The Court’s prior

orders took this high conflict relationship into account by resting

sole legal custody with Mother. . . . Father disregards Mother’s

legal authority to make decisions regarding religion and

education and attempts to subvert it, going so far as to state that

it is “his house, his rules.” Father claims that Mother’s actions

demonstrate a pattern of harmful psychological conduct.

However, Father has not demonstrated that Mother’s decisions

relative to legal custody or Father’s parenting time have

psychologically harmed [Child].

7. The actions of both parties continue to place [Child] in the

middle of conflict. Mother must follow the orders of the Court

and seek input from Father, in writing if desired, on matters

concerning education, religion, and health care. Father must

respect the legal authority of Mother, particularly on matters of

religion, and strictly abide by the parenting time schedule and

Mother’s decisions.

1

Father has not included a copy of that petition in his appendix on appeal. And neither party has stated the

date of W.B.’s death in their briefs on appeal. For purposes of this appeal, we assume that Father’s 2017

petition related only to Child.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 3 of 22

***

[8c.] Father will not bring [Child] to church services at All Saints

Church. Father may bring [Child] to social activities only when church

teachings are not the focus of the activity.

Id. at 91 (emphasis added).

[6] Thereafter, Father filed additional petitions to modify custody. In August 2020,

the trial court issued an order on all pending motions and denied Father’s then-

pending petition to modify custody. And the court granted Mother’s “request to

have sole decision-making authority” for Child. Id. at 105. The court noted that

Father had not complied with court-ordered therapy, having only attended “a

few sessions” in two years. Id. The court found that “the fewer exchanges that

the Parties have to negotiate, the better” and modified parenting time “so that

Father has four consecutive days followed by Mother having seven consecutive

days.” Id.

[7] In January 2022, Father filed another petition to modify parenting time. Mother

filed a motion for rule to show cause why Father should not be found in

contempt. 2 The trial court appointed a Guardian ad Litem (“GAL”) for Child,

and she filed three reports with the trial court in 2022. On September 16, the

2

The trial court found Father in contempt for violating multiple court orders, and he does not appeal either

those findings or the sanctions imposed.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 4 of 22

trial court entered an interim order pending a final hearing on the motions. In

that order, the trial court found and concluded in relevant part as follows:

8. Father is emotionally harming the child by putting implicit and

explicit pressure on him to “fix” the parenting time[ schedule.]

***

16. Father shall attend counseling with a licensed therapist

approved by all parties, including the GAL. He shall propose a

name to the other parties within one (1) week of this order. If the

parties cannot agree on a therapist, any party may request an

expedited hearing. Father’s Counsel shall provide the therapist

with a copy of the June 1, 2022, and the August 22, 2022, GAL

reports.

17. Mother shall continue to participate in counseling as

described in the June 1, 2022, GAL Report.

18. The parents shall ensure that the child continues in

counseling and that he is assured of confidentiality in his

counseling. . . . The purpose of therapy for the child is not to

influence or change the court case or the parenting time schedule

in any way. It is not the child’s responsibility to “fix” the

parenting time schedule.

19. Father shall NOT permit the child to attend any All Saints

Orthodox Church event or any other event where members of

that church are in attendance.

***

22. It is in the child’s best interests to modify parenting time to

limit Father’s time with the child so as to minimize the

emotion[al] harm and to provide a more consistent and

predictable schedule.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 5 of 22

23. Father shall have interim parenting time every other weekend

and midweek parenting time on alternate Tuesdays and

Thursdays, as shown on the attached Exhibit A, Parenting Time

Calendar for September, October, and November 2022, which is

hereby incorporated into this Order. . . .

Id. at 128-30.

[8] A hearing on all pending motions was held beginning in November 2022 and

concluded in February 2023. In March, the parties disagreed regarding

parenting time over Child’s spring break, and Father moved the court to allow

him to take Child on a vacation. The trial court denied Father’s motion, as well

as his motion to reconsider. 3

[9] On May 23, the trial court issued its order with the following relevant findings

and conclusions:

19. A summary of the GAL’s recommendations is as follows:

A. Father’s parenting time to continue per the

Interim Order, year[-]round, with no extended

summer parenting time, and with holiday parenting

time being limited to three overnights per holiday.

This reduction of parenting time is based upon the

emotional harm [Child] experiences by Father’s

implicit and explicit pressure about “fixing” the

parenting time schedule and the mature themes to

3

Father appeals the court’s denial of that motion to reconsider. But we do not address that issue on appeal.

We cannot offer Father relief from the court’s denial of visitation for a vacation that was in March 2023, and

the issue is moot.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 6 of 22

which Father has been exposing [Child]. Father’s

parenting time should remain reduced until these

issues are resolved.

B. Father to attend counseling with a qualified

counselor approved by Mother’s counsel, with the

counselor to receive the GAL’s reports and any other

relevant information. Father’s counseling should

address his contempt for Mother, his beliefs about

women, his beliefs about the divorce, . . . compliance

with court orders, and self-monitoring of sexual

thoughts and behaviors so that he is not impacting

[Child] with these beliefs.

C. Mother to continue in counseling, addressing her

feelings toward Father so that [Child] can feel safe to

speak about Father in her presence and feel

comfortable voicing his opinions, without recourse.

***

E. Both parents to address in their own counseling

what they can do to help [Child] understand that he

is not responsible for fixing the parenting time

schedule or anything else about this proceeding.

F. [Child] should not be permitted to attend any

function or event of All Saints Orthodox Church,

based upon Father’s abuse of the discretion afforded

to him in the 2018 order that has required [Child] to

lie to protect Father.

***

26. Wishes of the Parents.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 7 of 22

A. Mother wishes Father to have parenting time with

[Child] that is analogous to the Indiana Parenting

Time Guidelines, but which is limited to no more

than three consecutive overnights.

B. Father wishes the parents to have equal parenting

time with [Child]—which would necessitate a

modification from Mother’s primary physical custody

to joint physical custody.

27. Wishes of the Child.

A. The GAL observed [Child] become visibly

uncomfortable when Father made comments about

Mother during the home visit.

B. Based on the prior in camera interview and related

findings of this Court, and the GAL’s reported

observations, [Child] continues to feel responsible for

the Court’s orders and the amount of parenting time

Father receives. [Child] has expressed significant

distress to the Court and the GAL about his

perceived responsibility.

C. [Child] has expressed that he needs to keep his

two worlds separate. When with Mother, he does not

talk about Father. When with Father, he does not

want to talk about Mother. He agrees with whichever

parent he is with to avoid confrontation. The GAL

observed [Child]’s ability to completely change his

demeanor depending on who he was with.

***

28. Interaction and Interrelationship of the Child with Parents,

Siblings, and Others.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 8 of 22

A. [Child] has a close and loving relationship with

. . . Mother and Father. However, [Child] is under

pressure from Father to act in accordance with

Father’s suspicions of Mother to the point that

[Child] has an almost obsession with keeping his two

selves separate—he has one self at Mother’s and one

self at Father’s.

B. The GAL expressed serious and repeated concerns

that Father was speaking to [Child] about the court

proceedings and the GAL reports. The GAL was so

concerned about her meeting with [Child] on

November 3, 2022, that she stated, “This GAL is

very concerned about [Child’s] mental health and

wellbeing. It appears that [Child] is being pressured

to change his opinion with this GAL. [Child]

struggled so much during the November 3 meeting

with this GAL. This GAL finds it unlikely that

[Child] came to the conclusion on his own that he

was being “cowardice” [sic] by not telling this GAL

that he wanted more time with Father.”

C. Father repeatedly emailed Mother with alleged

statistics about the problems faced by children of

divorce, memes about things such as, “You can’t fix

yourself by breaking someone else,” and assertions

such as, “A Child in a female-headed home is 10

times more likely to be beaten or murdered. (The

Legal Beagle, July 1984, from “The Garbage

Generation”).”

***

G. Both parties acknowledge that [Child] was

baptized in the Episcopalian church as an infant.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 9 of 22

H. A prior order issued May 22, 2018, prohibited

Father from taking [Child] to church services at his

church, the All Saints Orthodox Church. Father was

allowed to take [Child] to church functions that did

not involve the church’s teachings.

I. Father has consistently disregarded the May 22,

2018, order. Father’s own witnesses confirmed that

[Child] has regularly attended All Saints Orthodox

Church services with Father. [Child] was identified

by multiple witnesses of Father’s as a “catechumen,”

a person preparing for baptism in the church. One of

Father’s witnesses reported that Father and [Child]

were on the list read by the priest of people who hope

to be baptized in the church and had been on that list

for 4 months or more.

J. Father’s picture (with [Child] in the photo and

identified in the caption) appears in the All Saints

directory from 2020.

K. Upon discovery of Father’s violations, this Court’s

September 16, 2022, Interim Order further restricted

Father from permitting [Child] to attend any All

Saints Orthodox Church event or any other event

where members of the church were in attendance.

L. Father’s own witnesses confirmed [Child]’s

continued presence at All Saints church after the

Interim Order.

M. Father believes that since Mother was raised in

the Russian Orthodox church that he should be able

to provide to [Child] any similar church teachings.

N. Mother is opposed to [Child]’s participation with

All Saints Orthodox Church for multiple reasons. . . .

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 10 of 22

O. Father alleges that this Court’s restrictions

regarding All Saints Orthodox Church violate his

constitutional rights. . . .

30. Mental and Physical Health of the Parties and Child.

A. The GAL reports as follows:

[Child] has deeply internalized Father’s beliefs and

that this is creating conflict for [Child]. [Child] is very

clearly stuck in the middle of his parents. [Child] has

a deeply ingrained desire to avoid conflict. He does

this by adopting his mom’s side when he is with his

mom and adopting his dad’s side when he is with his

dad. This GAL notes that [Child] acted noticeably

different during the home visits. Both parents

reported that [Child] was not acting significantly

different than normal during the home visit.

GAL Report, June 1, 2022, page 18.

***

W. Mother and Father reside just less than two

blocks from each other, in the same neighborhood.

X. Father placed multiple “Free [child’s first name]”

signs on trees up and down Mother’s street. The signs

were printed on white paper in large, bold, capital

lettering. The signs were clearly visible from the

windows of Mother’s home, within [Child]’s view.

The Court notes that this is at least the second time

that Father has involved others in the neighborhood

in his conflict with Mother, having previously sent

emails to neighbors about Mother’s alleged parental

alienation.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 11 of 22

Y. Mother immediately filed a petition for rule to

show cause and a request for emergency orders

restraining Father from displaying the signs. On

January 20, 2022, this Court issued an order directing

Father to remove all signs, including those within his

own home, to refrain from posting any additional

signs, and to refrain from disparaging Mother to

[Child] or in [Child]’s presence.

Z. Despite the January 20, 2022, order, at the time of

the GAL’s home Visit in April 2022, Father had a

“Free [redacted]” sign laying on his stairs, in plain

sight. Father admits that he discussed the signs with

[Child] the first time he had him after the signs had

been posted and that they have talked about them

whenever the subject comes up. Father believes

[Child] was amused by the signs. Father is incorrect.

***

FF. Father defends his practice of sharing

information with [Child] about these proceedings and

the court system/conflict with Mother, in general.

Throughout this proceeding, and before, Father has

shared with [Child] content that is objectively

inappropriate. This content has included articles

about fatherless children, the movie Kramer vs.

Kramer, and an episode of Dateline depicting a high

conflict custody battle which ended with the mother

killing the father. [Child] reported to the GAL that he

watched Kramer vs. Kramer; “that it was depressing,

and he didn’t like it.”

HH. Father demonstrates absolutely no recognition

that his exposure of [Child] to this mature, parental

conflict-related content is harmful. To the contrary,

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 12 of 22

Father believes it is appropriate and even beneficial to

[Child].

***

38. Religious Activities of the Child

A. A child’s legal custodian “may determine the

child’s upbringing, including the child’s education,

health care, and religious training.” Ind. Code § 31-

17-2-17(a)(2).

B. No party has petitioned to modify legal or physical

custody.

C. As [Child]’s legal custodian, Mother has the sole

authority to determine his religious training. Mother

objects to [Child]’s exposure to All Saints Orthodox

Church and to Father’s participation in any religious

training for [Child].

D. Restriction of Father’s engagement in religious

training for [Child] that violates Mother’s legal

custody rights is not a violation of Father’s right to

his own religious freedom of expression. Father is

free to exercise his own religious practices, separately

from [Child].

***

F. In this case, Father has gone beyond taking [Child]

to extracurricular activities at his church. Father’s

own witnesses identified [Child] as a “catechumen”

—a person preparing for baptism in the church.

Father has invaded Mother’s right to determine

[Child]’s religious upbringing and has done so despite

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 13 of 22

earlier less restrictive orders, leading to the current

order.

***

41. Parenting Time

A. Guidelines. This matter DOES involve allegations

of family violence, substance abuse, and risk of flight

with a child, or other circumstances that the Court

reasonably believes would endanger the children’s

physical health or safety, or significantly impair the

children’s emotional development. Specifically,

[Child] is emotionally endangered when Father puts

him—personally and publicly—in the middle of

Father’s disputes with Mother. Thus, the Indiana

Parenting Time Guidelines (“Guidelines”) . . . are

NOT in effect in this case except as specifically

adopted, below.

***

C. Compliance with Prior Orders. Father has not yet

complied with the August 2020 Order to complete

“at least three months of no less than weekly therapy

sessions with an appropriate therapist and . . .

received a statement from the therapist that Father

has done enough work so that he will not pose a

burden on his son with respect to Mother.”

D. [Child]’s Best Interests. The Court has carefully

considered the statutory best interest factors as well

as Father’s constitutional rights to parenting time and

[Child]’s strong relationship with Father and must

balance those against the emotional harm that Father

does to [Child] during parenting time in denigrating

Mother, in exposing [Child] to the conflict between

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 14 of 22

the parents, and most seriously, in burdening [Child]

with the responsibility for the parenting time

schedule.

E. School Year Schedule. The Court adopts Section

II(D)(1) of the Guidelines, for School Year Parenting

Time, as follows:

1) Every other weekend: Father shall

have parenting time every other

weekend from after school on Friday to

drop off at school on Monday. . . .

2) Midweek: Father shall have midweek

parenting time with [Child] on the

Thursdays prior to Mother’s regular

weekends from 5:00 pm to 8:00 pm, and

on Tuesdays following Mother’s regular

weekends from 5:00 pm to 8:00 pm.

Each week, Father and [Child] will have

one midweek parenting time. . . .

***

H. All Saints Orthodox Church. Father shall NOT

permit the child to attend any All Saints Orthodox

Church service, Sunday school, social event, any

event located at the church, any event sponsored in

whole or in part by All Saints Orthodox Church; nor

any private events hosted by a member of All Saints

Orthodox Church. Father is not prohibited from

taking [Child] to community events where other

members of the All Saints Orthodox Church may

happen to be in attendance.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 15 of 22

Id. at 67-82. This appeal ensued.

Discussion and Decision

Standard of Review

[10] Father appeals the trial court’s order, which includes extensive findings and

conclusions, following an evidentiary hearing. Our standard of review is well

settled:

The trial court entered findings of fact and conclusion of law in

its order denying modification of custody. Pursuant to Indiana

Trial Rule 52(A), the reviewing court will “not set aside the

findings or judgment unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court to judge the

credibility of the witnesses.” D.C. v. J.A.C., 977 N.E.2d 951, 953

(Ind. 2012) (internal quotation and citations omitted). . . .

Additionally, there is a well-established preference in Indiana

“for granting latitude and deference to our trial judges in family

law matters.” In re Marriage of Richardson, 622 N.E.2d 178 (Ind.

1993). Appellate courts “are in a poor position to look at a cold

transcript of the record, and conclude that the trial judge, who

saw the witnesses, observed their demeanor, and scrutinized their

testimony as it came from the witness stand, did not properly

understand the significance of the evidence.” Kirk v. Kirk, 770

N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind.

201, 204, 210 N.E.2d 850, 852 (1965)). “On appeal it is not

enough that the evidence might support some other conclusion,

but it must positively require the conclusion contended for by

appellant before there is a basis for reversal.” Id. “Appellate

judges are not to reweigh the evidence nor reassess witness

credibility, and the evidence should be viewed most favorably to

the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)

(citations omitted).

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 16 of 22

Steele-Giri v. Steele, 51 N.E.3d 119, 123-24 (Ind. 2016).

Issue One: Child’s Religious Training

[11] Father first contends that the trial court’s order prohibiting Child’s attendance

at Father’s church or at any church-related activity violates his “Federal and

State First Amendment constitutional rights.” 4 Appellant’s Br. at 31. In

particular, he asserts that his “religious freedom and freedom of association is

infringed when he is forced by the trial court to choose between involving his

child in his church community or face having his access to his son stripped.” Id.

We do not agree.

[12] The First Amendment to the United States Constitution provides in relevant

part that “Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof[.]” In support of his argument on appeal,

Father cites Israel v. Israel, 189 N.E.3d 170 (Ind. Ct. App. 2022), trans. denied. In

Israel, a father argued that a non-disparagement clause in the trial court’s

dissolution decree was an unconstitutional prior restraint of his speech. That

clause prohibited both parents from disparaging the other in front of their child

or to “anyone.” Id. at 175. On appeal, we held that the prohibition did not

violate the father’s constitutional rights with respect to statements he made in

the presence of his child given the “compelling government interest ‘in

4

Father makes no separate argument under the Indiana Constitution. Accordingly, we address only his

argument under the First Amendment to the United States Constitution.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 17 of 22

protecting children from being exposed to disparagement between their

parents.’” Id. at 180. But we held that the clause went “far beyond furthering

that compelling interest to the extent it prohibits the parents from ‘making

disparaging comments’ about the other in the presence of ‘anyone’ even when

Child is not present.” Id.

[13] Father’s reliance on Israel is misplaced. In Israel, the First Amendment violation

was based on a prohibition of the father’s freedom of speech. Here, in contrast,

the trial court has not restricted Father’s First Amendment freedom of religion

in any way.

[14] Moreover, as Father acknowledges, Indiana Code section 31-17-2-17 grants a

custodial parent the right to “determine [a] child’s upbringing, including the

child’s education, health care, and religious training.” (Emphasis added.) The

statute further provides that a court may only limit the custodian’s authority

upon a determination that, “in the absence of a specific limitation” of that

authority, the child’s physical health would be endangered or his emotional

development would be significantly impaired. Id. Here, Father has made no

such showing, and Mother’s right to determine Child’s religious training is

therefore without limit, which includes her right to exclude Father’s religious

preferences.

[15] Still, in addition to the alleged First Amendment violation, Father contends that

the court’s order unfairly restricts Child’s extra-curricular activities and that

Mother should not be “permitted to use religion as a weapon in order to dictate

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 18 of 22

where Father and [Child] can go and with whom they can associate, when

there is both no demonstrated interference with Mother’s religious training and

no demonstrated harm to [Child].” Appellant’s Br. at 29. But Father’s

arguments amount to a request that we reweigh the evidence, which we will not

do on appeal. The bottom line is that Mother has the exclusive authority to dictate

Child’s religious training, and she has decided that Child shall not participate in

Father’s church. Mother does not need to explain her reasons or justify her

decision in any way.

[16] Finally, we note that it was Father’s own violations of previous court orders,

which were less restrictive on this issue, that led the trial court to impose the

current prohibition against taking Child to even private functions hosted by

members of Father’s church. Given the trial court’s broad discretion in family

matters, we decline Father’s invitation to find an abuse of that discretion here.

[17] In sum, the trial court’s order does not violate Father’s First Amendment rights;

nor is it erroneous for other reasons.

Issue Two: Parenting Time

[18] Father next contends that the trial court abused its discretion when it modified

his parenting time, including a reduction in his summer parenting time to less

than that recommended under the Parenting Time Guidelines. Father argues

that the court’s order is “arbitrary, capricious and is not reasonably related to

any probable harm to [Child].” Appellant’s Br. at 34. We do not agree.

[19] Indiana Code section 31-17-4-2 provides as follows:

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 19 of 22

The court may modify an order granting or denying parenting

time rights whenever modification would serve the best interests

of the child. However, the court shall not restrict a parent’s

parenting time rights unless the court finds that the parenting

time might endanger the child’s physical health or significantly

impair the child’s emotional development.

As this Court has explained,

Indiana recognizes that the right of a noncustodial parent to visit

his or her children is a “precious privilege.” Duncan v. Duncan,

843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied. Thus,

although a court may modify a parenting time order when the

modification would serve the best interests of the child or

children, a parent’s visitation rights shall not be restricted unless

the court finds that the parenting time might endanger the child’s

physical health or significantly impair the child’s emotional

development. Id. (citing Ind. Code § 31-17-4-2). Even though 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. See Stewart v.

Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans.

denied. A party who seeks to restrict a parent’s visitation rights

bears the burden of presenting evidence justifying such a

restriction. Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App.

2003).

D.B. v. M.B.V., 913 N.E.2d 1271, 1274-75 (Ind. Ct. App. 2009).

[20] Here, the trial court concluded that

[t]his matter DOES involve allegations of family violence,

substance abuse, and risk of flight with a child, or other

circumstances that the Court reasonably believes would endanger

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 20 of 22

the children’s physical health or safety, or significantly impair the

children’s emotional development. Specifically, [Child] is

emotionally endangered when Father puts him—personally and

publicly—in the middle of Father’s disputes with Mother. Thus,

the Indiana Parenting Time Guidelines (“Guidelines”) . . . are

NOT in effect in this case except as specifically adopted, below.

Appellant’s App. Vol. 2, p. 81. In support, and as excerpted above, the trial

court found multiple examples of Father’s conduct that harmed Child, especially

“in exposing [Child] to the conflict between the parents[.]” Id. And our review

of the record shows that the court’s assessment is well supported. Thus, the

court’s restriction of parenting time to less than that recommended under the

Guidelines was not an abuse of discretion. Father’s contention on appeal

amounts to a request that we reweigh the evidence, which we will not do.

Conclusion

[21] The trial court’s order prohibiting Child’s involvement in certain activities

related to Father’s church does not violate Father’s First Amendment rights.

Nor is it otherwise erroneous. Further, the trial court’s order modifying Father’s

parenting time is supported by the evidence and is not clearly erroneous.

[22] Affirmed.

Tavitas, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 21 of 22

ATTORNEY FOR APPELLANT

Cassandra A. Kruse

Emswiller, Williams, Noland & Clarke, LLC

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Kendra G. Gjerdingen

Mallor Grodner LLP

Bloomington, Indiana

Court of Appeals of Indiana | Opinion 23A-DC-1393 | March 12, 2024 Page 22 of 22

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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