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Court rules on grandparent custody, visitation

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In an opinion handed down Wednesday afternoon, the Indiana Supreme Court held that once a minimal burden has been met by a biological parent, it is up to a third party to prove that it's in a child's best interest to be placed in or remain in the custody of the third party. The high court also ruled that a grandparent must pursue visitation rights under the Grandparent Visitation Act instead of the Indiana Parenting Time Guidelines or de facto custodian statute.

The central issues in the case In Re the Matter of the Paternity of K.I., by grandmother and next friend, J.I., v. J.H., No. 13S05-0805-JV-213, are what standard a trial court should apply when ruling on a parent's petition to modify custody of a child who is already in the custody of a third party; and what role, if any, the presumption in favor of the natural parent plays in a modification proceeding.

K.I. remained in the care of her grandmother, J.I., for more than 18 months and during that time, J.H. exercised his visitation rights. The trial court then granted J.H. custody of his daughter and granted J.I. visitation consistent with the Indiana Parenting Time Guidelines.

The grandmother appealed, claiming the wrong legal standard was applied for custody modifications from a grandparent to the natural parent and the court abused its discretion in awarding custody to J.H. The father cross-appealed the grant of visitation under the Parenting Time Guidelines.

The Indiana Court of Appeals reversed the award of custody to J.H. and remanded for a determination on whether parental presumption had been overcome and if modification was in K.I.'s best interest. The appellate court also said if J.H. got custody on remand, then the trial court had to determine whether the grandmother should have visitation under the Grandparent Visitation Act or de facto custodian visitation.

The Supreme Court decided that the distinctions between the statutory factors required to get initial custody and those needed for a subsequent custody modification aren't significant enough to justify substantially different approaches in resolving custody disputes, wrote Justice Robert Rucker.

A natural parent seeking to modify custody has a very minimal burden of establishing the statutory requirements for modification showing it's in the best interest of the child and there's been a substantial change in one or more of the enumerated factors, wrote the justice. Once that burden has been met, it's up to the third party to prove the best interests of the child are to remain with the third party. J.I. failed to carry her burden, and the high court affirmed modification of custody in favor of J.H.

J.I.'s visitation should have been examined under the Grandparent Visitation Act, not the Parenting Time Guidelines or the de facto custodian visitation act. The Supreme Court reversed the trial court's decision on the visitation and remanded with instructions to enter appropriate findings and conclusions consistent with the opinion and the Grandparent Visitation Act.

The opinion was originally posted with the full names of the grandmother and father, but removed and amended in accordance with the Indiana Administrative Rule 9(G)(4)(d), which became effective Jan. 1, 2009. That rule says orders, opinions and decisions issued by the appellate court shall be publicly accessible but each appellate court should exclude the names of the parties and affected parties from public access, except as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.

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  • Natural custody RIGHTS
    WHY did the Father NOT get Custody in the first Place? Did he have Counsel? Bauer v McClure 1996--Pub. Law 104-193--ACCESS by Non-Cust. So.Car. --Foster Care kids RETURNED to BIOLAOGICAL PARENT

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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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