ILNews

Court rules on grandparent custody, visitation

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

  • 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

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT