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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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