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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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