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Justices reinstate grandparent visitation COA deemed excessive

July 31, 2015

The Indiana Supreme Court Thursday reinstated a trial court’s grandparent visitation order that included monthly overnight visits and other visitation that the Court of Appeals ruled was excessive.

The Grandparent Visitation Act provides grandparents may seek “occasional, temporary visitation,” but the Indiana Court of Appeals ruled the visitation awarded in  In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D., 82S01-1507-DR-452, was beyond occasional and temporary. Because there was no legal definition for occasional and temporary visitation, the COA looked to past precedent to guide a new determination of proper visitation.

“We likewise recognize that this Court has not provided a standard for determining what amount of visitation is appropriate under the Grandparent Visitation Act. However, we are not convinced that precedent compels finding an abuse of discretion in this case,” Justice Steven David wrote in an opinion joined by Justices Brent Dickson and Mark Massa. “We summarily affirm the Court of Appeals in upholding the award of grandparent visitation. We also hold that the trial court did not abuse its discretion in the amount of visitation that it granted.”

The father of L-A.D.W. appealed the trial court ruling, which granted visitation to the maternal grandparents of the child whose mother died when L-A.D.W. was 8 years old. The child’s parents were in the midst of a divorce when mother died, but in her will she urged grandparents to seek generous visitation because they had provided much of the child’s care since birth. The trial court found visitation was in the child’s best interests.

Chief Justice Loretta Rush concurred in the result but wrote separately to caution that the amount of grandparent visitation must be limited to not impede a fit parent’s constitutional right to direct the child’s upbringing.

“In my view, the majority’s reliance on our usual ‘deference to trial judges in family law matters’ insufficiently protects the parent’s constitutional rights and risks allowing excessive awards to escape meaningful appellate review,” Rush wrote in a concurrence joined by Justice Robert Rucker.

“But even under the closer scrutiny I would apply, the trial court’s award of 24 overnights per year, plus short visits weekly and for a few special occasions, does not unduly infringe on Father’s parental rights under these circumstances.”

 
 

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