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COA reverses father's visitation of adopted daughter

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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.
 

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  1. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  2. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

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