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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
    My daughter was married less than a week and her new hubbys picture was on tv for drugs and now I havent't seen my granddaughters since st patricks day. when my daughter left her marriage from her childrens Father she lived with me with my grand daughters and that was ok but I called her on the new hubby who is in jail and said didn't want this around my grandkids not unreasonable request and I get shut out for her mistake
  • The laws need to change!
    I totally agree with the previous posters to this story. Not only should grandparents be recognized by the law, aunts and uncles should be as well. If a parent is not making logical choices and did something that causes them to lose their child to DCS, like causing the death of another child, obviously their opinion really should not hold much weight when it comes to placing the surviving child with family, especially if that family passes DCS scrutiny in their home county. DCS needs to get on the same page and quit being at odds with each other. I thought the purpose of DCS was to protect children, it seems to me as though, for the most part, they worry more about the parents and what the parents say, never mind the fact that said parent is the cause of their childs death. I guess if you don't have someone footing your legal bills, you don't stand a chance, even if you are the best choice for placement.
  • 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. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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