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Indiana grandparents petitioning for visitation face long odds

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Indiana Lawyer Focus

Thirteen years after the Supreme Court of the United States issued its watershed ruling in a grandparent visitation dispute, Indiana, like many states, continues to struggle to balance the rights of parents to raise their children with the desire of grandparents to be a part of the children’s lives.

The Indiana statute which governs grandparent visitation has remained largely unchanged for years while state courts have been issuing opinions that have narrowed the statute’s interpretation. At the same time, ironically, members of the Indiana General Assembly have been introducing bills that would expand the law.

zoeller-brian-mug Zoeller

Compounding the situation are families who have little patience and can act harshly toward their own relatives for seemingly minor slights.

Attorneys say the Indiana Code should be revised. However, their agreement quickly unravels when they get to the details of how it should be rewritten. Their differing ideas reflect the struggle in the courts and the Statehouse and indicate solutions may not come quickly.

Prior to 2000, states were actually broadening their visitation rights laws to give grandparents greater ability to spend time with their grandchildren. That changed when the U.S. Supreme Court handed down Troxel v. Granville, 530 U.S. 57 (2000).

There, the court considered a case that centered on a Washington state law that let “any person” petition for visitation rights and allowed the court to grant those petitions whenever the best interests of the child is served by that visitation.

The majority found the Washington law violated the U.S. Constitution’s Due Process Clause in the 14th Amendment. Specifically, the court pointed to the presumption that fit parents act in the best interest of their children and as long as the parents are fit, the state will have no grounds to question the parents’ decisions for raising their children.

Parents have a right to raise their children as they see best.

Brian Zoeller, chair of the family law practice group at Cohen & Malad LLP called Troxel a “watershed case” that changed everything. Since the high court issued the decision, cases in Indiana have narrowed the scope of the state’s visitation statute.

The state’s caselaw has taken the teeth from the statute, he said, and given grandparents the greater burden when petitioning to see their grandchildren. Consequently, grandparents bringing legal action are less likely to win in court.

Indiana Code 31-17-5 enables grandparents to seek visitation rights in three circumstances – the child’s parents are deceased; the child’s parents are divorced; or the child was born out of wedlock. Zoeller pointed out if the two parents are married or if the single parent is allowing the grandparents some contact, no matter how limited, the grandparents have no grounds to petition the court.

So difficult are these cases to prove that attorney Deborah Agard estimates she only files a petition once for every nine or 10 grandparents who come to her asking for help. She explained she does not want to waste their time and money when she knows the petition will be denied.

Opposing expansion

The problem, Agard said, is the statute is written, and is being interpreted, too narrowly. She advocates listing specific factors, like those that the child custody statute puts forth, for the court to consider in grandparent visitation cases.

In almost every session during the last few years, the Indiana General Assembly has entertained one or more bills regarding grandparent visitation rights. Mainly, these bills have sought to expand visitation rights to great-grandparents. Other measures have attempted to give grandparents the ability to seek visitation even when families are intact.

None have been enacted into law.

One group that has actively opposed expanding grandparent visitation rights in Indiana and other states is the Coalition for the Restoration of Parental Rights, a national organization that exists primarily in cyberspace. Bloomington attorney Karen Wyle has represented the group and advocated for parental rights ever since she wrote an amicus brief in Troxel.

The group has worked to narrow and even eliminate grandparent visitation rights. The reasons for opposing grandparent visitation are varied, Wyle said, but she noted adults do not automatically become cookie-baking, kind-hearted individuals when their child produces a child.

wyle-karen-bw-mug Wyle

Some grandparents may be in denial about the effects their medication has on their behavior. Maybe they do not accept modern-day child-rearing techniques or are not willing to step back and allow the parent to raise the child. Sometimes grandparents are simply not safe or good role models.

Wyle applauded the Troxel decision that underscored the fundamental right of parents to raise their children as they see fit. She has proposed her own revisions to Indiana statute, namely to make the grandparent visitation law conform to caselaw so the presumption in favor of the parent is included.

Zoeller, too, supports writing the statute so it reflects caselaw. Currently, reading the grandparent visitation law without knowing about the court cases that have since added key interpretations can lead to misconceptions, he said.

Moreover, attempts in the Statehouse to broaden visitation rights would likely be struck down by the courts.

“I don’t see what the Legislature could do except, I think, they could make the statute conform to caselaw,” he said.

Human costs

Although the Troxel ruling gave parents the trump card, the decision still left several issues for the lower courts to figure out.

Wyle said the unresolved issues include what a grandparent must prove to rebut the presumption that the parent’s decision to limit or deny visitation is in the child’s best interest, and whether the grandparent has to prove that by a preponderance of evidence or by the higher standard of clear and convincing evidence.

Also, the question remains if there are any procedural thresholds to clear before allowing the lawsuit to proceed, especially in light of the damage that litigation can inflict on custodial families.

“I think litigation is a terrible way to solve these problems,” Wyle said. “It tends to make them worse in a permanent or semi-permanent way.”

In fact, she views grandparent visitation lawsuits as almost counterproductive. The financial resources that would have gone to support the child are redirected to the attorney, which is not in the best interest of the youngster, she said.

More than the financial consequences, Zoeller has seen the emotional cost of grandparents and parents squaring off in court. Hurtful comments and anger can linger long after the court issues a decision.

He remembered one case where the mother allowed her 9-year-old son to be put on the witness stand. Zoeller objected, but the court overruled. On the stand, the boy told opposing counsel he did not want to spend time with his grandfather. However, later he broke down in tears when he recounted that his grandfather always said he loved him and couldn’t wait to see him again.

“There is a human cost to these lawsuits,” Zoeller said.•

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  • Grandparents rights when parents are absent
    This law appears to be built around parents' right to raise children as they see fit. We are the grandparents of a child removed from parents due to substance abuse and domestic violence - and only after we made the call to Child Protective Services. The child was placed with the paternal aunt and uncle pending reunification with the parents. Now the parents are both absent parents and we have filed for Guardianship to have the child live with us and his 2 siblings. We have been trying to re-establish the previous relationship we had with the child and the State is using this law to hinder our efforts. Should this law even be considered when both parents are absent? I think not.
  • Grandparents rights
    I am a Maternal Grandparent of a child,who has parents who both have a history of supstance abuse,& alcolism,& domestic violene by the biological father,towards the mother & child, resulting in ther father,being incaraserated 2times in the Indiana Department of corrections,What I can not understand is that eventhough D.C.F. has been involved in this suitation,& myself & my husdand the maternal grandfather,who have raised the monor child & have provided financial suport for this child, do to the parents inable,or refusial to provide for the minor child,have NO RIGHTS@ ALL! We can't even protect the child from this lifestyle,due to the unjust laws in the State of Indiana,& other States as well, this is why,so many children end up dead,due to their parents abuse,as a child of the 70's growing up in Indiana with both of parents being subsatance abusers& myself & my sibling been repeatly physically abused by our mother,our grandparents,or other realitives,had no legal rights,nor did the State of Indiana do onything to protect myself or my sibling from this abuse. It really upsets me to the point of tears,that my grandchild as do many,many children have to endure this type of life,when children are allowed to remain with their parents& be raised by parents,as parents see fit,with no legal consequences whatsoever;something has to be done,& now,it's a shame that the laws are still the same ,as they were in the 70's when I was a child,somthing's got to change.H ow many more children have to suffer,emotional, physical, & God forbid even sexual abuse,& many times loose their lifes @ the hands of their own parents,or associates of their parent; there are so many wonderful ,loving Grandparents,fit,& very willing to give their Grandchildren the lives they so deserve,what can't the lawmaker's understand,a child does'nt ask to be born,they are innocent human beings,that are unable to protect themselves,yet when people,like loving Grandparents try to step up & protect,they can't do anything to keep the children,because of some rediculious,unface & unjust laws. I f I may be so bold to ask, W.W.J.D.? Would he want this for his inocent defenceless precious children? the answer is NO! I as a voter & lifelong residentof I ndiana,can't stress it enough,the laws need to be changed a.s.a.p., think of the children. Thank-you for letting me express my opionion,& please as lawmakers work to get the higher courts to think of our children & change the laws.
  • Child Rights
    Funny how this discussion has little if anything to do with protecting the children, only the parents. Hypothetically, a child in the home of parents who continually are engaged with meth (but are "unfortunately" never caught in the act by the police or CPS), are physically abusive to one another, even to the point of the wife nearly dying twice and ending in critical condition in Wishard hospital (and both h & w denying any abuse) whatsoever, and who continually berate a child so as to break her spirit, is considered by Indiana law (and some attorneys) as "being raised as the parents see fit." This is all just hypothetical, of course. Obviously nothing like this could ever really happen because parents would never do such a thing to their children. Like it or not, this is what the child gets. In Indiana law, "grandparents" is a four letter word. There is a sign that is often displayed: "Zero tolerance for family abuse." This slogan is nothing but hogwash and political posturing. When grandparents try to to intercede for the child, they are slapped down by ridiculous laws and meddling lawyers who know nothing about the situation and who care nothing about the children. When a 5 year old child (or even an 11 year old) begs for help from the clutches of such parents, grandparents are powerless to help because of laws designed by people who have no real concern to advocate for such children. Because I am a grandparent, I am, by definition, a parent. I am actually all for parents having primary place and voice in their children's lives. Yes!! In fact they should raise their own kids! But they also have the **responsibility** to protect those children. And when they do not, grandparents should have the legal ability to reach out past the parents (who have sometimes not grown up yet, even at 30) and advocate for those little children. Are law-makers and lawyers really so incapable that they cannot make laws that protect the rights of all its citizens, whether parents, grandparents, and especially the children? If they really are that incapable, then they should stop meddling in families and get out of the way. Of course, that will never happen. Because law is not really about justice.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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