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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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  • Legal Question
    I recently filed a petition for rights to see my grandchildren and was denied...just simply denied. Repeated request for the facts and findings to which the judge came about his decision to deny, (IC 31-17-5-6) have been totally ignored. Am I misunderstanding this law? Can the judge just deny, without any further explanation?
  • Grandparents rights
    See, I can understand if the child is in danger or the parents are unfit and the grandparents what to be able to see their grandchild or have rights to them. Right now I am going threw something on the opposite end. I am a single mother who is clean and has no criminal background yet my daughter's father's mother has started threatening me saying she's wanting to sue me for visitation. I let her come see her when she asks too. I do not let her take her anywhere because I don't know if she will run off. My daughters father has even said she wouldn't put it passed her. Let alone the charges that are on her husband and one that was on her 10 years or so ago but still. I don't feel ok with my child being around that without me or someone else there. I try to be nice I do but its getting to the point where I am done and I pray it would be ok.
  • 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 have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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