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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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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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