Indiana, like most states around the country, developed, and then restricted grandparent visitation rights. As our culture and demographics have changed over time, grandparents are frequently asked by their children to assist with raising their grandchildren.
Sometimes grandparents encroach upon a parent’s right to raise his or her children as they see fit. Custody and visitation battles over children in a grandparent visitation matter are often difficult on all parties, can be damaging to the relationship between the grandparent and the parents, and are potentially damaging to the relationship between the grandparent and the child. However, there are instances in which some contact with the grandparent will clearly be in the best interests of the children.
In 1982, the Indiana legislature enacted the Grandparent Visitation Act. Prior to this law, it was very difficult to obtain any visitation rights to grandchildren. Most of the time, a grandparent’s petition for visitation was simply denied without a hearing. Over more than 30 years working in family law, we have been involved in many grandparent visitation cases. Sometimes we have had to protect a parent’s right to raise his or her child as he or she sees fit, and sometimes we have had to protect the child’s best interest to have continuing contact with the deceased parent’s parents. Each case is unique and fact sensitive, and each requires a thorough consultation to discuss this convoluted area of law.
Indiana law allows a child’s grandparent to petition for visitation under three specific situations if:
- the grandparent’s child is deceased;
- the marriage of the child’s parents has been dissolved in Indiana; or
- the child was born out of wedlock.
It is important to note that since the Grandparent Visitation Act was first enacted, the United States Supreme Court, the Indiana Supreme Court and the Indiana Court of Appeals have narrowed the scope of the circumstances in which a grandparent can successfully petition for visitation.
One interesting case involved a child who was born to a married woman. Husband did not know it was not his biological child until years later. After the boyfriend died in a motor vehicle accident, the wife confessed to his parents that he was the father of her child. A short while later, Husband and Wife divorced and husband was granted sole custody of all of the parties’ children including the child that was not his biological child.
The deceased boyfriend’s father then filed as petition for grandparent visitation. The trial court first ordered visitation with the child and the alleged grandfather. The Court threatened the ex-husband with jail time after he denied visitation (supposedly after the grandfather had violated the visitation order). The Indiana Court of Appeals overturned the trial court, finding that the grandfather was not legally the child’s grandfather. The Court of Appeals sent the case back to the trial court so that it could enter an order requiring the grandfather to reimburse ex-husband for the attorney fees he incurred during four years of litigation.
In another case, a husband murdered his wife in front of their children. The children’s uncle then took guardianship of the children. A month later, the paternal grandmother petitioned for grandparent visitation rights.
The first trial court judge in the case likened the murderer’s prison sentence to a death and granted the paternal grandmother visitation. As numerous parties were fighting for custody of the children, a new judge was appointed. He vacated the paternal grandmother’s visitation order on grounds of lack of standing (the right to sue). The grandmother appealed and the Indiana Court of Appeals overturned the trial court, holding that the grandmother’s visitation order should remain in effect.
However, the uncle appealed this decision to the Indiana Supreme Court. The Supreme Court overturned the Court of Appeals. The Court identified two exceptions that allow a grandparent to petition for visitation. Either it had to be the grandparent’s child who was deceased, or the marriage of the children’s parents must have been dissolved by divorce in Indiana. If a grandparent meets the Supreme Court’s criteria, the trial court must also determine that an order compelling visitation with a grandparent is in the “best interests” of the child. The “best interests” standard has been used for decades in Indiana in custody and parenting time cases. In addition to the best interests of the children, a grandparent’s right to visitation must be balanced against a parent’s constitutional right to raise his or her children as he or she sees fit.
Since the U.S. Supreme Court’s ruling in 2001 in favor of a parent, grandparent visitation has been limited to occasional temporary visitation which does not disrupt the children’s nuclear family. Also, there are many cases over the last 20 years in which Indiana Court of Appeals has overturned a sympathetic trial judge who felt sorry for the grandparent. It is the best interests of the child — not the emotional pain of the grandparent — which must be considered.
Several other factors must be addressed in specific findings made by the trial court to secure an order for grandparent visitation. These factors include:
- the presumption that a fit parent acts in his or her child’s best interests;
- the special weight that must be given to a fit parent’s decision to deny or limit visitation;
- whether the grandparent established that visitation is in the child’s best interests; and
- whether the parent has denied visitation or simply limited visitation.
Despite the grandparent’s high burden, there are numerous cases in which a grandparent was properly awarded visitation. These situations include parents who are drug addicts, alcoholics, felons and neglectful of the children, among others.
Each case is unique and fact specific, so it is essential to speak with an attorney about the facts of your case.