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. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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