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COA affirms order allowing grandparent visitation with deceased son's daughter

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The Indiana Court of Appeals Wednesday upheld the order granting visitation to the paternal grandfather of a child whose father killed himself before her birth. But one judge had reservations about the visitation arrangements.

Mother K.L. was legally separated from her husband W.L. when she began a relationship with L.H. in April 2011. She became pregnant and spent time at the home of E.H., L.H.’s father, on occasion during their relationship. In October 2011, L.H., the father of L.L., committed suicide, which led to a break in communication between K.L. and E.H. The father’s attended a baby shower for her and K.L. invited E.H. and his wife to the hospital after L.L. was born. It was later determined that L.H. was the baby’s father.

K.L. and W.L. have reconciled since their divorce. E.H. had been unable to see L.L., despite his requests, so he filed for visitation. The trial court ordered mediation, but it was unsuccessful. The court granted E.H.’s petition and dictated that L.L. would visit E.H. every other Sunday for two hours. The visits would initially be supervised, but later transition to unsupervised.

K.L. appealed, arguing the mediator should have been able to testify that E.H. was the one who made mediation unsuccessful as well as that the visitation should not have been granted. She claimed to have a limited relationship with E.H., was worried he could not care for L.L.’s tubes in her ears properly, and worried the visitation would raise questions about her biological father before K.L. was ready to explain the issue to her child.

In K.L. v. E.H., 29A02-1308-MI-681, the Court of Appeals rejected K.L.’s argument regarding the mediator’s testimony, noting that the trial court made it clear that the statements made during mediation would be confidential and the mediator could not testify. It does not matter that this issue involves visitation of a child, as K.L. argued.

The judges also found no abuse in discretion in granting E.H.’s petition for visitation, citing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), and Indiana Code. The trial court noted limited contact K.L. had with E.H.’s family before and after L.H.’s death, that mother ignored E.H.’s requests for visitation, E.H.’s extensive experience caring for children, and there was no evidence L.L. would be in danger when visiting her grandfather. The court also afforded little to no weight to some of the concerns expressed by K.L.

Judge Margret Robb, in her separate opinion, took issue with the trial court’s lack of consideration to the mother’s concerns and dissented from the majority’s decision to affirm without reservation the visitation order. Robb believed the visitation schedule is not crafted to meet L.L.’s best interests, given how quickly the order increases visitation time and frequency. Robb would remand for the visitation to occur twice a month for two hours under mother’s supervision, with any modifications to be made only after a report to the court.

 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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