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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  2. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  3. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  4. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

  5. No, Ron Drake is not running against incumbent Larry Bucshon. That’s totally wrong; and destructively misleading to say anything like that. All political candidates, including me in the 8th district, are facing voters, not incumbents. You should not firewall away any of voters’ options. We need them all now more than ever. Right? Y’all have for decades given the Ds and Rs free 24/7/365 coverage of taxpayer-supported promotion at the expense of all alternatives. That’s plenty of head-start, money-in-the-pocket advantage for parties and people that don’t need any more free immunities, powers, privileges and money denied all others. Now it’s time to play fair and let voters know that there are, in fact, options. Much, much better, and not-corrupt options. Liberty or Bust! Andy Horning Libertarian for IN08 USA House of Representatives Freedom, Indiana

ADVERTISEMENT