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Justices remand for more proceedings on grandparent visitation order

March 7, 2013

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.

 

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