Court affirms stepfather's visitation rights

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals April 23 affirmed a trial court's decision that a stepfather may continue to have visitation rights with his stepdaughter even though the mother wanted his visitation rights terminated.

In Nicole A. Shaffer v. Robert J. Schaffer, No. 22A04-0709-CV-513, Nicole requested Robert's third-party stepparent visitation rights with her daughter, M.S., be terminated because it was in her daughter's best interest to not have any more contact with Robert. Nicole and Robert were married when she had a child by another man; Robert knew the child was not biologically his, was listed as the father on the birth certificate, and raised the girl as his daughter. When the Shaffers divorced, Nicole was awarded sole custody and Robert was granted visitation because of his custodial relationship with the young girl. DNA testing when M.S. was almost 6 confirmed Charles Moon was the biological father of M.S., and Moon was awarded parenting time as well.

Robert filed a petition to modify visitation in 2007; Nicole asked that the court terminate his visitation rights because he is not the biological father. Nicole wanted Robert's rights terminated because she believed M.S. would be confused by spending time at three different households, and she wanted her daughter to develop a father-daughter relationship with Moon.

The trial court reduced Robert's visitation rights and denied Nicole's request for termination of visitation.

Nicole believed the trial court violated her fundamental right as a parent to make decisions concerning the care, custody, and control of her child, citing Troxel v. Granville, 530 U.S. 57, 66 (2000). In Troxel, the U.S. Supreme Court held a Washington grandparent visitation statute unconstitutionally infringed on the fundamental rights of a parent and ruled it is for the parent to decide whether a relationship between the grandparents and child would be beneficial.

Judge Nancy Vaidik wrote the appellate court agreed with Nicole that cases involving initial grandparent visitation rights should be extended to stepparent visitation proceedings.

However, in the instant case, the court is asked to rule on a visitation modification, not the initial visitation determination.

Judge Vaidik cites Francis v. Francis, 654 N.E.2d 4 (Ind. Ct. App. 1995), which dealt with third-party stepparent visitation issues. In that case, Robert Francis petitioned the court to enforce his initial visitation order with two children he raised as his own with his ex-wife, Anita, until he discovered a different man fathered both children. Anita wanted the visitation reduced after she married the children's biological father. The trial court expanded Robert Francis' visitation because it was in the best interest of the children, which the appellate court affirmed.

The issue in Shaffer in modifying visitation is whether the modification is in the best interest of M.S., wrote Judge Vaidik, because the existence of a custodial and parental relationship between M.S. and Robert was already established when he was originally awarded visitation.

Nicole needed to show why Robert's visitation rights should be terminated, but the trial court ruled she didn't introduce any evidence to show termination would be in M.S.'s best interest. As the appellate court ruled in Francis, a parent's mere protest that visitation with a third party would somehow harm the family isn't enough to deny visitation in all cases, especially when the third party cared for the children as his own, wrote Judge Vaidik.

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