ILNews

Appeals court reverses judge on visitation ruling

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT