ILNews

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. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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