Many grandparents will say that being a grandparent has all the perks of parenting without most of the work. While this may be true for some, when it comes to visitation, grandparents always come in second place. Generally, parents can cut off their children's visitation with a grandparent without repercussion. A grandparent bears the burden of proving that visitation is necessary to a child's best interests.
Several factors go into determining whether grandparent visitation is appropriate in a particular case. If you're a grandparent seeking more time with your grandchild, it's important to understand your legal rights and limitations. This article provides an overview of grandparent visitation rights in Indiana. If after reading this article you have questions, contact a local family law attorney for advice.
Grandparent visitation rights are regulated by individual states. However, each state's laws must follow the policy set forth in the U.S. Supreme Court case Troxel v. Granville. Under Troxel, a judge must consider a parent's wishes regarding grandparent visitation, but a child's best interests are paramount to any visitation decision. In other words, grandparent visitation should only be ordered if it would serve a child's best interests. Even when visits are appropriate, a court will ensure that the grandparent's time with the child doesn't interfere with the parent-child relationship.
In Indiana, grandparents may enjoy broad legal protections and seek visitation if certain criteria are met. Namely, a grandparent must show that visitation serves a child's best interests. Parents have a fundamental right to parent their own children without governmental (or grandparent) interference unless a child's needs aren't being met. So a grandparent will need to make a strong showing to overcome that. In Indiana, a grandparent may seek visitation with a grandchild when:
One caveat to this rule is that paternal grandparents can't seek visitation if paternity hasn't been established for a child. Specifically, in one Indiana case, an unmarried mother and father (grandparents' child) had a baby together shortly before the child's father committed suicide. Paternity wasn't established before the father's death; however, the child's mother and grandparents stipulated to paternity. Because of this, the grandparents were later able to seek court-ordered visitation when the child's mother began limiting visits. Ultimately, the court denied grandparent visitation because the mother hadn't cut-off visitation completely, and additional visitation wouldn't serve the child's best interests.
As demonstrated in the above case, even when a grandparent can seek visitation, it doesn't mean that a court will order the visits. Specifically, Indiana law presumes that a parent will act in a child's best interests and a judge must give special weight to a parent's wishes. In another Indiana case, a grandmother who previously had custody of the grandchild was denied visitation. The court based its decision on the child's father's wishes to limit visits and the child's best interests.
A fit and proper parent always has superior custody rights to a grandparent. The preference for parents extends even when the grandparent is more attached to the child or better able to provide for the child's financial needs. To overcome a parent's presumption of custody, a grandparent must show that it's in a child's best interests for the grandparent to have custody and that a grandparent placement would substantially and significantly benefit the grandchild. Judges typically consider the following evidence when deciding to award custody to a grandparent:
Once the grandparent overcomes a parent's presumption of custody, a court will analyze a child's best interests. The judge will look at factors such as the child's age, the child's wishes, the child's emotional and physical needs, the child's bond with parents and/or grandparents, and any other factor the court deems relevant.
In one Indiana case, the children's father initially received primary custody while the mother had regular visitation. Shortly after the parents' divorce, the children's father died. The trial court granted custody to the paternal grandparents because the mother was not emotionally fit to parent the children. After considering the mother's mental instability, poor physical health, and continuing alcohol abuse, the court determined that awarding custody to the paternal grandparents was in the children's best interests.
In Indiana, a biological grandparent's visitation rights continue even after the grandchild is placed for adoption. However, there are a few exceptions to this rule. First, visitation must be in the child's best interests. Second, the grandparent must seek court-ordered visitation before the adoption takes place.
Specifically, in one case, maternal grandparents were denied visitation with a grandchild who was adopted by a stepmother. The child's mother (grandparents' daughter) and father divorced. Just one month after the father's remarriage, the child's mother died. The new wife adopted the child and completed a new birth certificate. It wasn't until after the adoption was complete that the maternal grandparents sought visitation. Because they failed to establish visitation before the adoption, they were precluded from seeking it later on.
As demonstrated in the case above, grandparents can quickly be shut out of a grandchild's life. A big part of being a parent is making decisions about your child's upbringing, including how much time they get to spend with a grandparent. The good news for grandparents is that there's often legal recourse if they want to spend time with a grandchild, but have been cut-off. Timing is key, so it's essential to understand your rights and obligations. If you have additional questions regarding grandparent visitation or custody in Indiana, contact a local family law attorney for advice.