A trial court properly ruled on a case as a petition for grandparent visitation, not as a modification of already established visitation, the Indiana Court of Appeals held Tuesday. The judges affirmed the denial of a paternal grandmother’s request for visitation.
Candy Miller, the paternal grandmother of two children, appealed the denial of her petition for grandparent visitation. She had not often seen the two children – who were born out of wedlock – prior to January 2013, when their biological father no longer had any contact with the children. Miller then contacted the children’s mother, Abby Dickens, to see if she could continue seeing the children. Dickens had safety concerns based on issues that came up while the children were in her presence, but the two agreed for Miller to have a “trial period” of grandparent visitation after she had filed for visitation. The trial period would last for two months until a final review hearing in September 2013, but the hearing was pushed back to November.
The visits were supervised, either by the mother or Miller’s parents. Mother had no issues with the July visits, but after the August visits, which she did not supervise, she learned that the three-year-old had rode on the back of a four-wheeler without a helmet, and the child would return from the visits saying swear words.
At the final hearing, the mother testified she did not want Miller to have unsupervised visits with her children and she did not feel her children were safe with Miller. She’d prefer the children have no visitation with their grandmother.
The trial court then ruled against granting Miller grandparent visitation.
In In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens, 69A05-1401-DR-39, Miller claimed the trial court erred by reviewing the case as a petition for visitation instead of as a motion to modify grandparent visitation. The trial court evaluated the matter using the four factors outlined in McCune v. Frey, 783 N.e.2d 752, 757 (Ind. Ct. App. 2003), when determining whether to grant visitation. Miller argued she had already established her right to grandparent visitation and the trial court should not have placed the burden on her to meet the heightened standard of proof of overcoming the presumption in favor of mother as a fit parent.
“[W]hen the trial court issued its order in this action, it discussed the McCune factors, which our Indiana Supreme Court has instructed must be discussed when entering an order granting or denying grandparent visitation. Thus, a review of the record as a whole and the specific facts contained therein indicate that the November 2013 hearing was a hearing on Grandmother’s grandparent visitation petition in which she had the burden to show that visitation was in the Children’s best interests,” Judge Rudolph Pyle III wrote.