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Court grants visitation for partner in guardianship case

Michael W. Hoskins
January 1, 2007
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When Patrick Atkins suffered a brain hemorrhage and subsequent stroke on a business trip in 2005, his partner of almost 30 years wanted to be there and visit.

While Atkins' family didn't approve of the relationship, Brett Conrad was allowed to visit and have contact with his partner at first. But the family began cutting off that contact and eventually the two sides went to court over visitation rights and guardianship. Conrad lost in Hamilton Superior Court before Judge Steven Nation, who granted guardianship to Atkins' family and allowed them control of visitation - which they'd said in trial would not be allowed for Conrad.

Today, the Indiana Court of Appeals reversed that lower court's decision and gave the Fishers man visitation rights and contact with Atkins. The 2-1 ruling came in Guardianship of Patrick Atkins; Brett Conrad v. Thomas Atkins and Jeanne Atkins, No. 29A02-0606-CV-471.

"We are confronted here with the heartbreaking fracture of a family," Chief Judge John Baker wrote. "Brett and Patrick have spent twenty-five years together as life partners - longer than Patrick lived at home with his parents - and their future life together has been destroyed by Patrick's tragic medical condition and by the Atkinses' unwillingness to accept their son's future.

"Although we are compelled to affirm the trial court's order that the Atkinses be appointed Patrick's co-guardians under our standard of review, we reverse the trial court with respect to Brett's request for visitation inasmuch as all credible evidence in the record establishes that it is in Patrick's best interest to continue to have contact with his life partner."

The appellate court also found that the trial court should have required Patrick's presence at the hearing, but that his court-appointed guardian ad litem waived that right by failing to enforce it. Additionally, the court concluded the lower court properly set off the couple's Charles Schwab account to the guardianship estate, but that it erroneously refused Conrad's request for the estate to pay some of his attorney fees and costs.

Judge Carr Darden was the lone dissenter on this case, writing a nearly four-page separate opinion.

Noting that the majority relied on Indiana Code section 29-3-5-3(b) to declare the trial court was required to enter orders encouraging development of Patrick's self-improvement and well-being, Judge Darden wrote, "I can agree that such would indeed be a laudable goal of a guardianship order, but I cannot agree this is what the statute requires."

He also notes that the majority has "impermissibly reweighed evidence and assessed witness credibility in violation of our long accepted standard of review."
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