ILNews

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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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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