ILNews

Court reverses grandparent visitation

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals agreed with a father that his due process rights were violated when a trial court ordered grandparent visitation over his objection. The majority reversed the petition for grandparent visitation filed by the children's maternal grandparents, with one judge dissenting and writing the ruling would give parents a carte blanche to deny visitation for any reason.

In James M. Hicks v. Gary Larson and Judy Larson, No. 26A01-0707-CV-302, Hicks had two children with Geri Hicks, the daughter of the Larsons. The grandparents were allowed regular visitation while Geri and the children lived with the Larsons while she was going through chemotherapy because James had suffered a severe work-related injury. After Geri died, James remarried and his relationship with the Larsons deteriorated. Despite disagreements between Hicks and the grandparents, he allowed them to continue to see his daughters.

Three years after his second marriage, the daughters' stepmother became concerned Gary was behaving inappropriately with her stepdaughter, K.H., after overhearing the girl say she watched her grandfather take a shower and that K.H. slept in the same bed with her grandfather when she would visit overnight.

After an overnight visit, the stepmother saw K.H. touching herself inappropriately, and K.H. said she did so because her grandfather told her she could do it. Hicks and his wife called the Department of Family and Children, and caseworker Ann Sulawske interviewed K.H. The Gibson County Sheriff's Department also investigated the claim that alleged Gary inappropriately touched K.H.

The DFC substantiated the alleged molestation claims, telling the Hickses to not let the children be in the presence of Gary. After the investigation, a grand jury determined there wasn't enough evidence to support the molestation claim and returned a No Bill against him. The grandparents then filed a petition for visitation. The trial court concluded the Larsons would be irreparably harmed if they weren't allowed to visit with their grandchildren. The trial court noted that K.H. had developed a rash on her genital area; and the grandmother directed the grandfather to rub ointment on the affected area and he appropriately applied it.

It's a trial court's discretion to determine what is in a child's best interest and to presume a fit parent's decision is in the child's best interest, wrote Judge Paul Mathias. Grandparents bear the burden of rebutting the parent's decision to deny visitation was made in the child's best interest.

Even though the grandparents played a large role in the children's lives and the grand jury returned a No Bill against the grandfather regarding the molestation allegations, the DFC substantiated the molestation claim, concluding K.H. had been touched inappropriately and in a sexual way by her grandfather.

Gary's testimony at trial does not support the trial court's findings and at most established he may have touched K.H.'s genitals to apply a rash cream. His statements "do not support the trial court's conclusion under the clear and convincing evidence standard it cites that it is certain his only reason for touching K.H.'s genitals was to apply diaper rash cream," wrote Judge Mathias.

Because of Hicks' concern that Gary inappropriately touched K.H., it's his belief it's in the best interest of his children they do not have visitation with their grandparents. The parties conceded Hicks is a fit parent and the grandparents failed to rebut the presumption made by Hicks, wrote Judge Mathias.

Judge Margret Robb dissented, stating none of the evidence in way of testimony by the caseworker, K.H., or the sheriff's department is inconsistent with the trial court's finding and conclusion. The trial court heard all the evidence and determined Gary didn't molest his granddaughter, so therefore Hicks' belief is otherwise unreasonable, Judge Robb wrote. She suggests a more structured visitation plan including supervised visits to allow the grandchildren and grandparents to stay connected.

"My concern with the majority's statement is that it could give a parent almost carte blanche to deny grandparent visitation for any reason or no reason at all. The trial court, after listening to the testimony, concluded that the parent's reasons for denying visitation were unfounded and that awarding grandparents visitation with the children was in the children's best interests; thus, visitation in at least some form should be allowed," she wrote.
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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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