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COA: Aunt and uncle have no standing for visitation petition

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Indiana statutes and caselaw do not allow for aunts or uncles of a child to petition for visitation, the Indiana Court of Appeals held Monday.

In Danny R. Kitchen, Jr. v. Rebecca Kitchen (deceased), Michael Lake and Shelly Lake, No. 27A04-1101-DR-14, father Danny Kitchen challenged the grant of visitation to his child’s maternal aunt and uncle. Kitchen and his wife divorced, and his wife and K.K. moved in with Michael and Shelly Lake, where they lived until Rebecca Kitchen died.

The Lakes were given temporary custody of K.K., but the court later granted full custody of the child to Kitchen and awarded supervised visitation to the Lakes in June 2009. Neither party appealed the order. But in March 2010, Kitchen asked the court to vacate the portion of the order granting visitation to K.K.’s maternal aunt and uncle. The trial court denied his motion, finding Kitchen was attacking the sufficiency of the evidence to support the visitation order and that time for that challenge had passed.

The trial court erroneously relied on In Re Paternity of J.A.C., 734 N.E.2d 1057 (Ind. Ct. App. 2000), to conclude it had the authority to grant visitation to the Lakes, the Court of Appeals held. The Lakes’ arguments that King v. S.B., 837 N.E.2d 965 (Ind. 2005) and M.S. v. C.S., 938 N.E.2d 278 (Ind. Ct. App. 2010), support their position that Indiana appellate courts are amenable to an expansion of the class of petitioners with standing to request visitation are also misplaced, wrote Judge James Kirsch.

Caselaw or statutes have allowed parents, step-parents and grandparents standing to seek visitation under certain conditions, but that right has never been extended to other third parties.

The judges also determined that Kitchen’s challenge of the visitation order was timely. In the instant case, the trial court lacked the authority to grant visitation to the Lakes because they didn’t have standing to petition for visitation with K.K. Because the lack of standing can’t be cured, that portion of the June 2009 order is void, wrote Judge Kirsch.

The judges remanded the matter for further proceedings.

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