Friday, November 16, 2007

What if parents oppose grandparent visitation?

The Florida Divorce Blog ran an article the other day about a Michigan case where the parents opposed grandparent visitation. See MI: No Grandparent Visitation Where Both Parents Oppose.

My first thought was that I could not remember a similar case in Indiana. Looking at Updates in Michigan Family Law, I found this article: Michigan's Grandparenting Statute Survives Constitutional Attack. Here is a prime example of what I mean by fifty states and fifty different kinds of family law. Michigan's Grandparent's Visitation Statute has a major difference with Indiana's statute:

Section 5 of that law states as follows:

(5) If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court shall dismiss a complaint or motion seeking an order for grandparenting time filed under subsection (3). This subsection does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.

So no applying this case to Indiana cases, but it did shine a light on a potential problem I had not thought of and that is the effect of joint custody on grandparent's visitation. Indiana law allows the custodial parent the right to control visitation with grandparents subject to the grandparent showing that the parent is acting so unreasonably that the refusal equates with unfitness and then the grandparent must show that visitation with the grandchild is in the grandchild's best interests. I am unaware of any Indiana case where parents having joint custody deny a grandparent visitation.


Grant Griffiths said...

I was the poor sole who argued the first Grandparent case right after Troxell in Kansas. I represented the parent and we won. However, since than, the Kansas appeals courts have been trying to find a way to chip away at the protections parents have. They are suppose to give deference to what a fit parent determines what is in the best interest of their children. If we lived in a perfect all grandparents would be wonderful people. But they are not, just like all parents are not fit.

Our courts have set a new standard and that is even if the parents are fit, if the interference, yes interference, with grandparent visitation is unreasonable, the court can issue grandparent visitation orders. I have even seen it in one case where the parents of a deceased parent was given the same visitation schedule as the dead son had in the divorce.

Sam Hasler said...

Although it has been about three years since my last contested grandparent's visitation case, I must say that Indiana has gone a bit differently from your descriptioin of Kansas. Before Troxell, I would have said that grandparent visitation was granted 99% of the time. It will be granted now unless we can show that it is not in the children's best interests. The grandparents not getting visitation are those who are not such wonderful people.

I am not so sure that Troxell brought a major change to Indiana law. We have a fairly restrictive grandparent's visitation statute. However, I think it did have one unintended consequence. Those cases where the grandparent is not a bad actor and the custodial parent is being merely obstinate are going to get settled and maybe even get settled very quickly. Those where the grandparents are bad actors and custodial parents are being reasonable in protecting their children have - in my opinion - a low level of success. At any rate, this is my explanation for seeing fewer of the grandparent visitation cases.