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COA reverses custody evaluation granted to grandparents

November 26, 2014

A trial court that expressed in the record reservations about the legal status of granting a visitation evaluation sought by grandparents of children in the care or another grandparent had those doubts confirmed Wednesday when the Court of Appeals reversed.

E.R. is the paternal grandfather of two children with whom maternal grandparents were seeking a visitation order. Those grandparents asked for a visitation evaluation, which Tippecanoe Circuit Special Judge Benjamin Diener granted with reservations.

“I think we are probably exceeding the scope of what grandparent visitation is and can be, but we will run that risk and then we will make findings and enter orders later,” Diener said in granting the visitation evaluation over E.R.’s objection.

The appeals panel in a 10-page order found the trial court order was contrary to the clear language of I.C. 31-17-2-12, which says only parents or their custodians may request such evaluations.

“It is not this court’s place to provide grandparents with a newfound right to request psychological evaluations for their grandchildren against the wishes of the parents,” Judge Cale Bradford wrote for the panel in In Re: The Guardianship of C.R. and A.R., E.R. v. M.S. and D.S., 79A05-1404-GU-176. “Should the legislature wish to provide grandparents that power, it can do so at any time.”

“Accordingly, we find that Grandparents did not have standing to petition the trial court for a parenting time evaluation and that the trial court did not have the authority to order such an evaluation sua sponte. Because there was no authority to order the evaluation, we
need not address whether the evaluation was in the best interest of the Children,” the panel held.

“We reverse the portions of the trial court’s March 20, 2014 order concerning the visitation study. ... The provisions of the order concerning Grandparents' visitation time with the Children are unaffected by this decision.”   

 

 

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