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Appeals court reverses judge on visitation ruling

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The state’s intermediate appellate court has reversed a southern Indiana judge’s ruling that a boyfriend should retain visitation rights over an ex-girlfriend’s child. It ruled that the finding is contrary to law because lawmakers didn’t allow for that type of circumstance to warrant visitation.

A unanimous decision came today in K.S. v. B.W., No. 22A05-1102-DR-79, a case from Floyd Superior Judge Susan Orth and Magistrate Judge Daniel B. Burke, Jr. The case involved a child, M.M., born in September 2002. The child’s biological father died the following spring and for about three years starting in 2004, the mother K.S. dated B.W., living with him in West Virginia. The child called B.W. “daddy” and “dad” during that time and the boyfriend was listed on M.M.’s school enrollment papers as her dad. After the two broke up in September 2007, the mother allowed for her ex-boyfriend to maintain regular visits even after she married another man in 2009 and moved back to Indiana.

B.W. filed a motion in September 2009 to establish him as a de factor parent and allow for parenting time, but the mother moved to dismiss that motion for failure to state a claim. She stopped allowing her ex-boyfriend visitation about eights months later.

The trial court last year denied the mother’s motion to dismiss and B.W.’s request to be named a de facto parent, but granted his request to visit with the child every other weekend and ordered the parties meet halfway between Indiana and West Virginia to exchange the girl. The court also denied K.S.’s request that B.W. pay her attorney fees, and early this year the court denied her requests that the judgment be stayed and errors corrected.

In the six-page decision Wednesday, Judge Melissa May wrote that the trial court’s decision was contrary to Indiana Code 31-9-2-25.5 defining a de facto custodian. Specifically, that statute defines someone in that role as the primary caregiver and financial support-giver of a child residing with him or her for at least six months if the child is younger than 3 and at least one year if the child is at least 3 years old. The statute applies only to custody proceedings after a paternity determination, actions for child custody or modification of custody, and temporary placement of a child in need of services taken into custody.

The Court of Appeals also cited Indiana Supreme Court caselaw holding that the statute only applies to custody and is silent on visitation. One of the most recent decisions on that came in K.I. ex rel. J.I. v. J.H., 903 N.E. 2d 453, 461-62 (Ind. 2009), and the Court of Appeals determined that the reasoning in K.I. controls in this situation.

“We must accordingly reverse the grant of visitation to B.W. because (he) is not M.M.’s father,” Judge May wrote. “While he was an important part of M.M.’s life at one time, Indiana does not provide for an order of visitation under this circumstance.”

The appellate panel affirmed the lower court’s denial of K.S.’s request for attorney fees, which she had argued should be awarded because B.W.’s claims were “unreasonable, groundless, and frivolous.” But the appellate court determined state statute allows for attorney fees to go to a “prevailing party” and the trial court was correct in denying those fees because K.S. didn’t prevail at trial.

Reading the court’s ruling, Indianapolis attorney Andrew Soshnick – past chair of the Indiana State Bar Association’s Family Law section – found the attorney fee aspect of the case interesting since the appeals court found the trial court had wrongly ruled against the mother on the visitation issue and in that reversal essentially declared her as “prevailing” after the fact.

He noted that the attorney fee statute, Indiana Code 34-52-1-1(b)(2) goes to meritless claims, and that while the mother could argue that B.W. brought a meritless claim because of what state law says, his argument wasn’t without merit. He suggested that the trial and appellate courts might not have wanted to assess attorney fees against the ex-boyfriend because he had been such an important part of the child’s life at one point before she remarried.

“Given the discretion in applying the fee statute, and the politics of the situation, it is not surprising that the fee denial was upheld,” Soshnick said.
 

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  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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