ILNews

COA reverses father's visitation of adopted daughter

Back to TopCommentsE-mailPrintBookmark and Share

Although one Indiana Court of Appeals judge concurred that a biological father’s petition granting visitation with his daughter should be reversed, he urged legislators and the Indiana Supreme Court to reconsider the issues raised in this case to “avoid equally unjust results in future cases.”

Judges Cale Bradford, James Kirsch, and Terry Crone ruled that biological father J.D.’s visitation petition regarding his daughter A.H. should be reversed, but for different reasons.

J.D. and J.S. had daughter A.H. when they were in high school and she was born with a congenital heart defect. J.S.’s parents adopted A.H. so that she could have medical insurance and child care. J.D. consented to the adoption. The two married and had a second daughter. They filed a petition to adopt A.H. but it was never finalized.

J.S. and J.D. later divorced and J.S. remarried. During the pendency of the proceedings, J.D. was able to visit with A.H. without any issue, but visitation issues later arose after J.S. remarried. She and her husband have petitioned to adopt A.H., which is still pending. After the divorce, J.D. filed a petition to establish visitation with A.H. The trial court granted it, ruling that pursuant to Collins v. Gilbreath, 403 N.E.2d 921 (Ind. Ct. App. 1980), J.D. qualified as a third-party nonparent custodian whose court-ordered visitation with A.H. was in her best interests.

In C.H., M.H. and J.S. v. J.D., No. 29A05-1004-DR-204, Judges Bradford and Kirsch reversed on the grounds that J.D. had to use the procedures established in Indiana Code Section 31-19-16-2 to establish post-adoption visitation with A.H. They also cited In re Visitation of A.R., 723 N.E.2d 476, 479 (Ind. Ct. App. 2000), to support that this section is the exclusive means for seeking relief in a situation like this.

Judge Crone concurred in result in a separate opinion, writing that In re Paternity of K.I., 903 N.E.2d 453 (Ind. 2009), controls. He disagreed with using A.R. to affirm, believing trial courts should be given sufficient flexibility to ensure the best interests of the child are served in each case.

K.I. held that a person’s de facto custodian status deals only with the question of custody and that the statute is silent on the question of visitation. Judge Crone believed the instant case shows the inequity of carrying K.I.’s holding to its illogical conclusion as he’s found no basis for granting J.D. visitation under Indiana law.

J.D. shouldn’t be put in an all-or-nothing position based on circumstances almost entirely beyond his control, he wrote. He questioned why trial courts should have the legal authority in these situations to grant a birth parent custody but not any form of visitation. He also wrote that denying J.D. visitation with A.H. is troubling because he is allowed to see A.H.’s sister without issue.

“Sometimes, when we must write an opinion using initials instead of names, the impersonality tends to diminish the very real human drama created by our decision. Today we are forced to separate two young sisters on alternate weekends for no logical reason that I can discern. I believe that our legislature should review Indiana’s visitation statutes and that our supreme court should reconsider its pronouncements in K.I. so that we may avoid equally unjust results in future cases,” he wrote.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

ADVERTISEMENT