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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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