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Indiana grandparents petitioning for visitation face long odds

July 17, 2013

Thirteen years after the Supreme Court of the United States issued its watershed ruling in a grandparent visitation dispute, Indiana, like many states, continues to struggle to balance the rights of parents to raise their children with the desire of grandparents to be a part of the children’s lives.

The Indiana statute which governs grandparent visitation has remained largely unchanged for years while state courts have been issuing opinions that have narrowed the statute’s interpretation. At the same time, ironically, members of the Indiana General Assembly have been introducing bills that would expand the law.

zoeller-brian-mug Zoeller

Compounding the situation are families who have little patience and can act harshly toward their own relatives for seemingly minor slights.

Attorneys say the Indiana Code should be revised. However, their agreement quickly unravels when they get to the details of how it should be rewritten. Their differing ideas reflect the struggle in the courts and the Statehouse and indicate solutions may not come quickly.

Prior to 2000, states were actually broadening their visitation rights laws to give grandparents greater ability to spend time with their grandchildren. That changed when the U.S. Supreme Court handed down Troxel v. Granville, 530 U.S. 57 (2000).

There, the court considered a case that centered on a Washington state law that let “any person” petition for visitation rights and allowed the court to grant those petitions whenever the best interests of the child is served by that visitation.

The majority found the Washington law violated the U.S. Constitution’s Due Process Clause in the 14th Amendment. Specifically, the court pointed to the presumption that fit parents act in the best interest of their children and as long as the parents are fit, the state will have no grounds to question the parents’ decisions for raising their children.

Parents have a right to raise their children as they see best.

Brian Zoeller, chair of the family law practice group at Cohen & Malad LLP called Troxel a “watershed case” that changed everything. Since the high court issued the decision, cases in Indiana have narrowed the scope of the state’s visitation statute.

The state’s caselaw has taken the teeth from the statute, he said, and given grandparents the greater burden when petitioning to see their grandchildren. Consequently, grandparents bringing legal action are less likely to win in court.

Indiana Code 31-17-5 enables grandparents to seek visitation rights in three circumstances – the child’s parents are deceased; the child’s parents are divorced; or the child was born out of wedlock. Zoeller pointed out if the two parents are married or if the single parent is allowing the grandparents some contact, no matter how limited, the grandparents have no grounds to petition the court.

So difficult are these cases to prove that attorney Deborah Agard estimates she only files a petition once for every nine or 10 grandparents who come to her asking for help. She explained she does not want to waste their time and money when she knows the petition will be denied.

Opposing expansion

The problem, Agard said, is the statute is written, and is being interpreted, too narrowly. She advocates listing specific factors, like those that the child custody statute puts forth, for the court to consider in grandparent visitation cases.

In almost every session during the last few years, the Indiana General Assembly has entertained one or more bills regarding grandparent visitation rights. Mainly, these bills have sought to expand visitation rights to great-grandparents. Other measures have attempted to give grandparents the ability to seek visitation even when families are intact.

None have been enacted into law.

One group that has actively opposed expanding grandparent visitation rights in Indiana and other states is the Coalition for the Restoration of Parental Rights, a national organization that exists primarily in cyberspace. Bloomington attorney Karen Wyle has represented the group and advocated for parental rights ever since she wrote an amicus brief in Troxel.

The group has worked to narrow and even eliminate grandparent visitation rights. The reasons for opposing grandparent visitation are varied, Wyle said, but she noted adults do not automatically become cookie-baking, kind-hearted individuals when their child produces a child.

wyle-karen-bw-mug Wyle

Some grandparents may be in denial about the effects their medication has on their behavior. Maybe they do not accept modern-day child-rearing techniques or are not willing to step back and allow the parent to raise the child. Sometimes grandparents are simply not safe or good role models.

Wyle applauded the Troxel decision that underscored the fundamental right of parents to raise their children as they see fit. She has proposed her own revisions to Indiana statute, namely to make the grandparent visitation law conform to caselaw so the presumption in favor of the parent is included.

Zoeller, too, supports writing the statute so it reflects caselaw. Currently, reading the grandparent visitation law without knowing about the court cases that have since added key interpretations can lead to misconceptions, he said.

Moreover, attempts in the Statehouse to broaden visitation rights would likely be struck down by the courts.

“I don’t see what the Legislature could do except, I think, they could make the statute conform to caselaw,” he said.

Human costs

Although the Troxel ruling gave parents the trump card, the decision still left several issues for the lower courts to figure out.

Wyle said the unresolved issues include what a grandparent must prove to rebut the presumption that the parent’s decision to limit or deny visitation is in the child’s best interest, and whether the grandparent has to prove that by a preponderance of evidence or by the higher standard of clear and convincing evidence.

Also, the question remains if there are any procedural thresholds to clear before allowing the lawsuit to proceed, especially in light of the damage that litigation can inflict on custodial families.

“I think litigation is a terrible way to solve these problems,” Wyle said. “It tends to make them worse in a permanent or semi-permanent way.”

In fact, she views grandparent visitation lawsuits as almost counterproductive. The financial resources that would have gone to support the child are redirected to the attorney, which is not in the best interest of the youngster, she said.

More than the financial consequences, Zoeller has seen the emotional cost of grandparents and parents squaring off in court. Hurtful comments and anger can linger long after the court issues a decision.

He remembered one case where the mother allowed her 9-year-old son to be put on the witness stand. Zoeller objected, but the court overruled. On the stand, the boy told opposing counsel he did not want to spend time with his grandfather. However, later he broke down in tears when he recounted that his grandfather always said he loved him and couldn’t wait to see him again.

“There is a human cost to these lawsuits,” Zoeller said.•

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