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Evidence does not support grandparent visitation order, COA rules

November 24, 2014

Finding the evidence did not support the trial court’s ruling, the Indiana Court of Appeals tossed a visitation order in favor of the maternal grandparents.

Timothy and Anita Schmidt filed a petition for grandparent visitation to see their granddaughter, H.B. Adam Burris, H.B.’s father, had been awarded sole custody after the mother was found to be unfit because of alcohol abuse and instability.

However, the mother was allowed to visit H.B. three times a month and the grandparents could visit her once a month. Also, the grandparents were allowed to attend H.B.’s sporting events and Burris permitted H.B. to attend some special family functions with the grandparents.

The Warrick Superior Court granted the petition, drawing a key conclusion that Burris would not permit the grandparents to see their granddaughter without a court order. Burris appealed, arguing the evidence does not support the trial court’s conclusion.  

The Court of Appeals agreed and reversed the trial court’s order in In re the Visitation of H.B., Adam Burris v. Timothy W. Schmidt and Anita J. Schmidt, 87A04-1406-MI-263.

The appellate court ruled the trial court had contradicted itself when it found, on the one hand, Burris would permit the grandparents to visit under his supervision but then it concluded Burris would not allow the grandparents to visit without a court order.

Pointing to Neuhoff v. Ubelhor (In re C.S.N.), 14 N.E.3d 753, 762 (Ind. Ct. App. 2014), the Court of Appeals said judicial intervention is more likely to infringe upon the parent’s fundamental right when the disagreement between parent and grandparent is over the scope of the visitation.

“That is, where the dispute ‘is not whether [H.B.] and [the Grandparents] will have a relationship but on whose terms it will be, there is no need for court intervention into [Father’s] decisions as a fit parent,’” Judge Edward Najam wrote for the court. “Thus, as the trial court found first that Father did not deny the Grandparents visitation altogether, but merely restricted the scope of such visitation, the trial court’s conclusions to the contrary are clearly erroneous.”



 

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