Sunday, April 13, 2008

New Grandparent's Visitation Case

The Indiana Court of Appeals has a new decision on Indiana's Grandparent's Visitation statute: Hicks v. Larson (PDF format). I think this case is a significant opinion - and I am quoting liberally from the facts below. Essentially, the case turns on the grandparents' evidence failing to meet the clear and convincing standard necessary to rebut the parent's right to refuse grandparent visitation.

The facts go like this: mother and children live with maternal grandparents prior to mother's death, children go back to live with father, father lets grandparents see the children, father remarries, and relationship with maternal grandparents deteriorates.

... Moreover, Grandparents were unhappy with Father's decision to place all photographs of Mother in photo albums, and with Father's request that Grandparents not take the children to visit Mother's grave or to `a softball tournament held in her honor. Despite these disagreements, Father continued to `allow Grandparents to have regular visitation with the children.
(Opinion at 4). Then came allegations of grandfather molesting one of the daughters. A grand jury did not indict grandfather but father terminated any contact with grandfather. (Opinion at 5).

The grandparents filed for visitation which the trial court granted:
... In its findings of fact and conclusions of law, the court found in part:
16. The evidence presented in this case establishes by clear and convincing evidence [that Grandfather] appropriately applied a cream or ointment medication upon the genital area of [KIT] for treatment of a rash; that such conduct was not done knowingly or intentionally to arouse a sexual desire in [KIT.]. approximately 4 years of age. the alleged victim or in himself to constitute a criminal action, a molestation or child abuse.
Appellant's App. p. II. Further, the court concluded:
2. The grandparents have had a meaningful contact with the children of Father] and the late [Mother]. The children had a meaningful relationship with [Grandparents] and the children enjoyed extensive visitation prior to he allege [sic] incident. Neither grandparent did any thing to legally harm the children.
3. It is in the best interest of [the children] to have a visitation relationship with [Grandparents].
4. The evidence is sufficient to rebut any presumption on behalf of the
(Opinion at 5). The court also decided "...that Grandparents would be irreparably harmed if they were not allowed visitation with the children.... (Opinion at 5; my emphasis).

The Court of Appeals discussed the law on grandparents visitation which I restate as follows:
  1. The trial court may grant a grandparent's petition for visitation if it determines that visitation is in the best interests of the child.
  2. The best interests" determination is a matter for the trial court's discretion, and we will reverse only upon a showing of an abuse of that discretion. Ramsey, 863 N.E.2d at 1237. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effects of the facts and circumstances before the trial court or the reasonable, probable deductions to be drawn therefrom. Id.
  3. Trial courts are to presume that a fit parent's decision is in the best interests of the child in deciding whether to grant or deny a grandparent's request for visitation.
  4. Acting under this presumption, trial courts must give special weight to a parent's decision to deny or limit visitation.
  5. However, the presumption is rebuttable with grandparents having the the burden of rebutting the presumption.
  6. The trial court is not required to accept a parent's reasons for denying or restricting visitation with grandparents as necessarily true but to listen to the evidence and judge the witnesses' credibility.
(Opinion at 7-8).

Grandfather testified that he applied ointment to the girl's genitals due to a rash. (Opinion at 9) The Court of Appeals decided this about grandfather's testimony:
...At most, Grandfather's testimony establishes that it is possible that he touched K.H.'s genital area to apply diaper rash cream. however, his statements do not support the trial court's conclusion under the clear and convincing evidence standard it cites that it is certain his only reason for touching K.H.'s genitals was to apply diaper rash cream. Therefore, the trial court's finding and conclusion in that regard are not supported by the evidence.
Therefore, father did not act unreasonably in denying the grandparents visitation. (Opinion at 9 - 10).

The dissent writes that this decision gives a parent "carte blanche to deny grandparent visitation for any reason or no reason at all." I think that parents have had a veto over grandparent visitation since the United States Supreme Court handed down the Troxel decision. (See opinion at 12). Yet, I am not so certain that I agree with the dissent that Troxel's veto has become carte blanche.

Yet I think the majority's decision shows a point that the dissent overlooks - the grandparents agreed that father was a fit person. (Opinion at 10). Combined with the majority relying on the reasonableness of the parent's objection to visitation, the successful grandparent visitation case requires a parent acting unreasonably in denying visitation. Thus, it comes to the evidence of each case without much of a brightline rule.

The dissent gives me another thought about evidence. The dissent suggests supervised visitation might have been a better remedy than ordering no visitation. No suggestion exists in the opinion that the record contained any evidence that supervised visitation was brought up in any manner. (Or for that matter, visitation only with maternal grandmother). I have no way of checking the record and so I guess no question was put to the parties about supervised visitation. I think I would have done so. Whether supervised visitation violates the parent's constitutional rights is another issue. However, it is not an issue I want to delve into at this point.


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