So you are a grandparent, you love your grandchildren, and you cherish the time you spend with them. Then, suddenly your grandchildren’s parents divorce or even worse, pass away. What happens? Do you still get to see your grandchildren? When life’s circumstances change your role as a grandparent, you hope everyone deals with things with a level head and you get to stay a significant participant in your grandchild’s life. But what if one of these life events happen and the person that has custody of your grandchildren doesn’t allow you to play an active role in their life anymore? Well, Indiana law may be able to help.
I.C. 31-17-5-1 addresses when a grandparent may seek parenting time or visitation with their grandchild. The law states that a grandparent may seek visitation with a grandchild when:
1) the child’s parent is deceased;
2) the marriage of the child’s parent was dissolved in Indiana;
3) the child is born out of wedlock and, if it is the paternal grandparent, paternity has been established.
The Court of Appeals has defined the policy behind allowing for possible grandparent visitation in saying “The policy of the grandparent visitation statute is to promote inter-generational contact and strengthen the bonds of the extended family when the nuclear family has been dissolved.” Grandparents have successfully received visitation rights where they had visitation prior to the adoption of a grandchild by a stepparent. Successful grandparent visitation has also occurred when another set of grandparents has adopted the grandchild.
In contrast, grandparent visitation rights have been denied where it was a great-grandparent or a step-grandparent. In these instances the Courts held that the Statue did not provide for visitation to anyone other than natural blood grandparents. Similarly, the Courts have denied to extend visitation rights to other relatives such as aunts and uncles.
Much like the standard for determining the custody of a child, the Court will consider what is in the best interest of the child when it comes to granting or denying a petition for grandparent visitation. In most cases the Court’s won’t dictate how much visitation time is appropriate. So, if a parent is allowing a grandparent to have visits with their grandchild, normally a Court will not get into deciding is it “enough” visitation, as generally, it is in the purview of the parent to determine what is the reasonable amount of time for the child to spend time with their grandparents.
The Court of appeals stated this most clearly in a case in 2001 when it stated, “The due process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children, and there is a presumption that fit parents act in the best interests of their children; therefore, a grandparent seeking visitation under the Indiana Grandparent Visitation Act must rebut the presumption that the parents are acting in the best interests of the child when they attempt to limit or deny visitation to a grandparent.”
So, if a grandparent just doesn’t like the amount of time they get to see their grandchild, then they likely won’t prevail in a Court. If a parent in a divorce situation has completely shut out a grandparent, then the grandparent may prevail in Court by seeking an order for visitation and establishing that the presumption in favor of the parents decision can be rebutted by showing it is in the child’s best interest to visit with the grandparent. In the situation where one or both parents has passed, there is a very good case to be made that the grandparent should be given visitation rights.
At Banks & Brower, the attorneys handle visitation issues, including grandparent visitation rights. If you have a child visitation issue, either as a parent or grandparent contact Banks & Brower for a free consultation with our attorneys.
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