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Court: grandparent visitation survives adoption

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State statute clearly allows grandparent visitation to survive a child's adoption by another biological grandparent, the Indiana Court of Appeals has ruled.

In a unanimous decision today in Elizabeth and Terry Baker v. Donnie Lee, No. 36A01-0807-CV-340, the appellate panel affirmed a lower ruling from Jackson Circuit Judge William Vance.

The case involves three children who were born out of wedlock between 1995 and 2002, and whose parents were incarcerated multiple times because of substance abuse. Lee is the maternal grandfather and Elizabeth Baker is the paternal grandmother, who with her husband received guardianship of the children and allowed Lee to visit on an informal basis.

A Scott Circuit judge granted Lee formal visitation in 2007, and the Bakers adopted the kids later that year through Jackson Circuit Court. The visitation became the debatable issue, and Judge Vance determined that Lee's right to see his grandchildren survived the adoption and couldn't be defeated by "the legal gymnastics this case exemplifies."

Since the Bakers moved to Florida, the court-ordered visitation was seven weeks of the school summer vacation and one week during the school winter vacation.

On appeal, the Bakers contended that Lee couldn't have visitation because after the adoption he was no longer a "grandfather," and that he hadn't previously established visitation rights under the existing Grandparent Visitation Act, outlined in Indiana Code § 31-17-5-1.

The appellate panel disagreed, noting the legislature's intent to extend special protection for existing grandparent ties by post-adoptive visitation. The judges also found that because Lee is a grandparent of children born out of wedlock, he is classified as a qualifying relative under the state statute and able to see and obtain an order for visitation.

"The legislature did not carve out an exception for an adoptive biological grandparent who is married to a non-relative of the adoptee(s)," Judge Mark Bailey wrote. "It is logical to assume that many, possibly most, adoptive parents have a spouse who is also an adopting parent. In essence, the Legislature did not require that every party to the adoption be related to the adopted child or children."

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