ILNews

Court affirms stepfather's visitation rights

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals April 23 affirmed a trial court's decision that a stepfather may continue to have visitation rights with his stepdaughter even though the mother wanted his visitation rights terminated.

In Nicole A. Shaffer v. Robert J. Schaffer, No. 22A04-0709-CV-513, Nicole requested Robert's third-party stepparent visitation rights with her daughter, M.S., be terminated because it was in her daughter's best interest to not have any more contact with Robert. Nicole and Robert were married when she had a child by another man; Robert knew the child was not biologically his, was listed as the father on the birth certificate, and raised the girl as his daughter. When the Shaffers divorced, Nicole was awarded sole custody and Robert was granted visitation because of his custodial relationship with the young girl. DNA testing when M.S. was almost 6 confirmed Charles Moon was the biological father of M.S., and Moon was awarded parenting time as well.

Robert filed a petition to modify visitation in 2007; Nicole asked that the court terminate his visitation rights because he is not the biological father. Nicole wanted Robert's rights terminated because she believed M.S. would be confused by spending time at three different households, and she wanted her daughter to develop a father-daughter relationship with Moon.

The trial court reduced Robert's visitation rights and denied Nicole's request for termination of visitation.

Nicole believed the trial court violated her fundamental right as a parent to make decisions concerning the care, custody, and control of her child, citing Troxel v. Granville, 530 U.S. 57, 66 (2000). In Troxel, the U.S. Supreme Court held a Washington grandparent visitation statute unconstitutionally infringed on the fundamental rights of a parent and ruled it is for the parent to decide whether a relationship between the grandparents and child would be beneficial.

Judge Nancy Vaidik wrote the appellate court agreed with Nicole that cases involving initial grandparent visitation rights should be extended to stepparent visitation proceedings.

However, in the instant case, the court is asked to rule on a visitation modification, not the initial visitation determination.

Judge Vaidik cites Francis v. Francis, 654 N.E.2d 4 (Ind. Ct. App. 1995), which dealt with third-party stepparent visitation issues. In that case, Robert Francis petitioned the court to enforce his initial visitation order with two children he raised as his own with his ex-wife, Anita, until he discovered a different man fathered both children. Anita wanted the visitation reduced after she married the children's biological father. The trial court expanded Robert Francis' visitation because it was in the best interest of the children, which the appellate court affirmed.

The issue in Shaffer in modifying visitation is whether the modification is in the best interest of M.S., wrote Judge Vaidik, because the existence of a custodial and parental relationship between M.S. and Robert was already established when he was originally awarded visitation.

Nicole needed to show why Robert's visitation rights should be terminated, but the trial court ruled she didn't introduce any evidence to show termination would be in M.S.'s best interest. As the appellate court ruled in Francis, a parent's mere protest that visitation with a third party would somehow harm the family isn't enough to deny visitation in all cases, especially when the third party cared for the children as his own, wrote Judge Vaidik.
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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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