Justices remand for more proceedings on grandparent visitation order

Back to TopCommentsE-mailPrintBookmark and Share

After finding a grandparent visitation order entered in Johnson County is voidable because of defects, the Indiana Supreme Court sent the case back to the trial court for new findings and conclusions without hearing new evidence.

M.L.B. was born out of wedlock and never had a relationship with his biological father. But his paternal grandfather M.A.B. was present in the child’s life from the beginning and mother K.J.R. allowed the boy to have frequent contact with the family, as long as the biological father was not present. After her new husband sought to adopt M.L.B., she curtailed the visits. M.A.B. intervened in the proceedings to petition for grandparent visitation.

The court awarded him visitation beyond what the boy typically experienced, including overnights and a summer family vacation of up to 10 days. The mother appealed, arguing it violated her fundamental parental rights. A divided Indiana Court of Appeals affirmed.

In In Re: Visitation M.L.B.: K.J.R. v. M.A.B., 41S01-1209-MI-556, Justice Loretta Rush outlined the four factors a grandparent visitation order should address, as discussed in Troxel v. Granville, 530 U.S. 57 (2000), and later adopted by the Court of Appeals in McCune v. Frey, 783 N.E.2d 752, 757-59 (Ind. Ct. App. 2003), and by the Supreme Court in In Re K.I., 903 N.E.2d 453, 457 (Ind. 2009). The first three factors implement the constitutionally protected right of fit parents to make child-rearing decisions and reflect the significant burden of proof grandparents must carry to override those decisions. The order in the instant case is insufficient as to all three, Rush pointed out.

None of the trial court’s findings give any indication it recognized the presumption that a fit parent acts in his or her child’s best interests or special weight to a fit parent’s decision to deny or limit visitation. The justices also found that the amount of visitation awarded to M.A.B. far exceeded the parties’ earlier pattern.

On the fourth factor, which considers the child’s best interest, the trial court’s findings are amply supported by the evidence and that factor is satisfied.

“… despite the trial court’s ample ‘best interests’ findings, the lack of findings on the other three factors, both standing alone and as compounded by the extensive visitation awarded without those necessary findings, violates Mother’s fundamental right to direct M.L.B.’s upbringing,” Rush wrote for the unanimous court.

The justices found the trial court order is defective and voidable and ordered on remand for the trial court to issue new findings and conclusions as required by McCune and K.I.



Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?