Tuesday, April 7, 2009

New Indiana Supreme Court Case: Grandparents Visitation

My compliments to Mary Beth Mock of Madison on In Re the Matter of the Paternity of K.I. case. The case deals with modification of a third party custody order and grandparents visitation order. Today, I am writing about the grandparent visitation case.

First the facts and issues as set out by the Indiana Supreme Court (pages 2 and 4 of the opinion):

The trial court modified the custody of a minor from the child‟s maternal grandmother to the child‟s natural father. The trial court also directed that grandmother be granted visitation consistent with the Indiana Parenting Time Guidelines. We conclude the trial court correctly modified custody but erred in directing the parties to rely on the Guidelines to determine visitation.

...J.H. cross-appealed contending the trial court abused its discretion by granting J.I. visitation under the Guidelines as though she were a noncustodial parent. Appellee‟s Br. at 4.....
Then we have our Indiana Supreme Court Justices taking on an issue that has been rolling around the Indiana Court of Appeals: do the Indiana Parenting Time Guidelines apply to grandparent visitation. The Indiana Supreme Court answered they do not.
However, as the Court of Appeals has observed, “The guideline‟s title – Indiana Parenting Time Guidelines – indicates that they apply to parents, not other family members. More to the point: „The Indiana Parenting Time Guidelines are based on the premise that it is usually in a child‟s best interest to have frequent, meaningful and continuing contact with each parent.‟ Given this specificity and the repeated references to „parents‟ throughout the guidelines, we suggest they have no mandatory application to grandparent visitation disputes.” Woodruff v. Klein, 762 N.E.2d 223, 229 (Ind. Ct. App. 2002) (internal citations omitted) (emphasis supplied in original); see also Spaulding v. Williams, 793 N.E.2d. 252, 263-64 (Ind. Ct. App. 2003) (noting trial court error in entering a visitation order in favor of grandparents pursuant to the Guidelines that “erroneously treat Grandparents as if they were parents” and declaring, “[p]arenting Guidelines do not apply to grandparent visitation matters”).
Opinion at page 11. The grandmother apparently argued that the de facto custodian statute permitted use of the Parenting Time Guidelines. The Indiana Supreme Court put that argument down with this:
But we disagree with our colleagues that the de facto custodian statute provides J.I. any relief. More specifically, even assuming J.I. qualifies as a de facto custodian that status bears only on the question of custody. See Indiana Code § 31-14-13-2.5(b)(2) (providing in relevant part “In addition to the factors listed in section 2 of this chapter, the court shall consider the following factors in determining custody: . . . The extent to which the child has been cared for, nurtured, and supported by the de facto custodian.”) (emphasis added). The apparent intent of the de facto custodian statute is to clarify that a third party may have standing in certain custody proceedings, and that it may be in a child‟s best interests to be placed in that party‟s custody. In re Guardianship of L.L., 745 N.E.2d 222, 230 (Ind. Ct. App. 2001). The statute is silent on the question of visitation. In a modification proceeding, once the trial court determines that it is in the child‟s best interest that custody be granted to the natural parent, we must look elsewhere for guidance on whether and to what extent a third party may be granted visitation. That brings us to our next discussion.
Opinion at pages 11- 12 (footnote omitted).

The Indiana Supreme Court then discusses the Grandparent Visitation Act and ends with what I see as defining grandparent visitation (yes, the emphasis is mine):
Under the Act, a grandparent may seek visitation only if (1) the child‟s parent is deceased; (2) the child‟s parents are divorced; or (3) the child was born out of wedlock, but only if the child‟s father has established paternity. I.C. § 31-17-5-1. And the trial court may grant visitation if it determines that “visitation rights are in the best interests of the child.” I.C. § 31-17-5-2. When a trial court enters a decree granting or denying grandparent visitation, it is required to set forth findings of fact and conclusions of law. McCune v. Frey, 783 N.E.2d 752, 757 (Ind. Ct. App. 2003). In those findings and conclusions, the trial court must address: (1) the presumption that a fit parent acts in his or her child‟s best interests; (2) the special weight that must be given to a fit parent‟s decision to deny or limit visitation; (3) whether the grandparent has established that visitation is in the child‟s best interests; and (4) whether the parent has denied visitation or has simply limited visitation. In re Guardianship of J.E.M., 870 N.E.2d 517, 520 (Ind. Ct. App. 2007); In re Paternity of P.E.M., 818 N.E.2d 32, 37 (Ind. Ct. App. 2004). We also observe that although the amount of visitation is left to the sound discretion of the trial court, “[t]he Grandparent Visitation Act contemplates only "occasional, temporary visitation‟ that does not substantially infringe on a parent's fundamental right "to control the upbringing, education, and religious training of their children.‟” Hoeing v. Williams, 880 N.E.2d 1217, 1221 (Ind. Ct. App. 2008) (quoting Swartz, 720 N.E.2d at 1221).
Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

I forgot to mention that the oral argument was written up under Third Party Custody: In re Paternity of K.I.: J.I. v. J.H.

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