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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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