By Andrea Ciobanu, Ciobanu Law PC
Grandparents’ visitation rights seemingly suffered a crucial blow in the wake of the landmark United States Supreme Court case Troxel v. Granville, 530 U.S. 57 (2000). In Troxel, paternal grandparents petitioned a Washington Superior Court for visitation time with their grandchild despite the mother’s resistance to such visitation. The grandparents relied on the Washington statute which provided "any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interests of the child, whether or not there has been any change of circumstances." Wash. Rev. Code § 26.10.160(3). The Court notably ruled in favor of the parents, and held that the Washington statute "unconstitutionally interferes with the fundamental right of parents to rear their children."
In Indiana, grandparents’ visitation rights are governed by Ind. Code § 31-17-5 et seq., which provides exclusively the circumstances that must exist to entitle a grandparent to visitation rights. Indiana’s Grandparent Visitation Act provides three specific instances in which a grandparent may seek visitation rights: (1) child’s parent is deceased; (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) the child was born out of wedlock, and if the petitioning party is a paternal grandparent then the child’s father must have established paternity. Ind. Code § 31-17-5-1.
The issue of standing in grandparents’ visitation cases has presented quite a challenge to grandparents. One problematic situation occurs when a child is born out of wedlock, paternity is established, and the grandparents and parents enter into a visitation agreement pursuant to the Grandparent Visitation Act. What happens if the parents later marry one another? Is the grandparent visitation agreement enforceable? Indiana case law holds: unequivocally no. The Indiana Court of Appeals provided that “the policy of the Grandparent Visitation Statute is to promote intergenerational contact and strengthen the bonds of the extended family when the nuclear family has been dissolved.” In re Visitation of J.P.H., 709 N.E.2d 44, 46 (Ind. Ct. App.1999) (citing Sightes v. Barker, 684 N.E.2d 224, 231 (Ind. Ct. App. 1997) trans. denied (emphasis in original)).
The Indiana Court of Appeals provided that in the above scenario, the grandparents cannot “be afforded standing to seek visitation against the wishes of the custodial parents whose marriage remains intact.” J.P.H., 709 N.E.2d at 48.
Yet another standing issue presented itself in the recently decided Indiana Supreme Court case In re Guardianship of A.J.A., 991 N.E. 2d 110 (Ind. 2013). In this case, a husband murdered his wife in front of the couple’s two young children. Shortly thereafter, the husband’s brother and his significant other filed for guardianship over the children, which the court granted. Subsequently, the children’s paternal grandmother intervened in the guardianship matter, and petitioned for grandparent visitation. The parties to the proceeding entered into an agreement which provided paternal grandmother with supervised visitation once a week for a trial period of six (6) weeks. However, the children’s guardians sought to terminate the temporary visitation order after determining that the paternal grandmother had violated the temporary visitation order and a no contact order by taking the children to visit their father in jail, and allowing the oldest child to communicate with his father.
The children’s guardians argued that paternal grandmother lacked standing under the Grandparent Visitation Act to pursue grandparent visitation. Paternal grandmother alleged that she had standing because her son was essentially deceased due to his sixty year prison sentence. Paternal grandmother also argued in the alternative that the parent’s marriage was dissolved upon the wife’s death. The Court determined that “both of Grandmother’s theories would produce an absurd result.” A.J.A., 991 N.E. 2d at 113.
The Court further provided “in this case, there is clearly a difference between those who, as Grandmother argues, are essentially dead because they are in prison, and those who are dead.” Id. The Court determined that paternal grandmother’s alternative argument that she had standing because her son’s marriage was essentially dissolved upon his wife’s death produced “an even more nonsensical result. We cannot construe any scenario where the General Assembly intended the Grandparent Visitation Act to potentially require grandparent visitation by the mother of an individual who shot and killed the grandchildren's other parent.” Id. at 114.
Finally, the Court held that the trial court’s original order granting paternal grandmother visitation was “void ab initio” because paternal grandmother lacked standing, as she “was not the grandparent of the deceased parent, nor was she the grandparent of a dissolved marriage.” Id. at 115.
The Grandparent Visitation Act, “represents a Legislative recognition that a child's best interest is often served by developing and maintaining contact with his or her grandparents." In re Paternity of K.I., 903 N.E.2d 453, 462 (Ind. Ct. App. 2009) (citing Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999). Through its enactment, the legislature sought to balance "the rights of parents to raise their children as they see fit and the rights of grandparents to participate in the lives of their grandchildren." Id. (citing Swartz, 720 N.E.2d at 1222). It appears that achieving this balance has proven more difficult than expected.
A unique twist in all of this may be grandparents of military families. Although the initial intent was not considered “grandparents rights” per se, grandparents of military parents can essentially exercise visitation, by standing in the shoes of military parents and exercising visitation with the children instead. Pursuant to, Ind. Code 31-17-2-21.1, Sec. 21.1., “if a parent in the military receives deployment orders, the court may delegate the parent’s parenting time, or part of the parent’s parenting time, during the time the parent is deployed to a person who has a close and substantial relationship with the parent's child.” It’s important to note that the visitation substitution in this scenario is still discretionary. The court must find that “delegating the parent's parenting time is in the best interests of the child.” This provision automatically terminates after the parent returns from deployment, and if the court determines that the delegated parenting time is no longer in the best interests of the child, the delegated parenting time may be terminated earlier.
Should grandparent time be voluntarily agreed upon by the parties, or permissible and/or court-ordered, it is best for all parents and grandparents to work together on a schedule that is in the child’s best interests, as is the case in most domestic situations.