Saturday, January 19, 2008

Indiana Grandparent Rights Law: Following up on "Indiana General Assembly Proposing Change to Grandparent's Visitation"

I wrote a small post about Senate Bill 48 in "Indiana General Assembly Proposing Change to Grandparent's Visitation", this post expands a bit on my views.

The Bill expands the possible universe of grandparent visitation cases. The current statute allows for grandparent visitation when one parent is dead, the parents or divorced or there is a paternity case. As I read the new Bill, except for paternity cases, all these requirements are gone. Put another way, a grandparent could file for visitation where both parents remain married to one another. Which leaves us with more people being able to file for court ordered grandparent visitation.

Making the denial of visitation only where the parent's act unreasonably does nothing to cut down on litigation. It raises the odds of even more litigation defining what is "unreasonable." At this time, a grandparent seeking visitation must show that the parent's denial of visitation is so unreasonable that the parent is in effect not acting in the child's best interests to such an extent as to be unfit. That is my condensation and paraphrase of the United State Supreme Court's decision in Troxel v. Washington. Going up against one parent can be tough but I expect going up against two parents will be even harder.

I am left wondering what benefit this really gives to grandparents who are obviously in a strained relationship. Maybe if the Senator proposed mandatory counseling for grandparent and parent and child, I would be optimistic that this Bill would actually do some good.

After writing the above paragraphs, I found the website for Home School Legal Defense Association which has a page for Indiana. From there, I found a brief discussion of SB 48 which includes this paragraph:

This bill has been introduced in prior years but has never been heard in committee. We will continue to monitor the bill but understand it is unlikely to move.
This page includes the view that SB 48 gives "courts the authority to declare that these parental decisions are unreasonable and order grandparent visitation contrary to a parent’s better judgment." Therein lies the very conflict with the federal Fourteenth Amendment and Troxel
that I mention above.

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