Ryznar: Grandparent visitation 15 years after Troxel

January 13, 2016
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Fifteen years after Troxel v. Granville, 530 U.S. 57 (2000), grandparent visitation is alive and well in Indiana and across the country. In Troxel, Justice Sandra Day O’Connor noted, “The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household.” Indeed, the last 15 years have only enhanced this sentiment. Given continued high levels of divorce and out-of-wedlock births, the role of grandparents continues to be an important source of stability in some families. Thus, in 2015, grandparent visitation made several appearances on the Indiana court dockets.

In one such case, In re the Visitation of L-A.D.W. R.W. v. M.D. and W.D., 38 N.E.3d 993 (Ind. 2015), a child’s maternal grandparents filed for visitation under the Grandparent Visitation Act after their relationship with the child’s father became contentious. Their daughter had recently died of cancer and expressed her wishes in her will for them to have generous visitation with her child. Based on the opinion of mental health experts, the trial court determined that it was in the child’s best interest to have a meaningful and ongoing relationship with grandparents, with visitation totaling approximately 79 days per year. While noting the lack of guidance regarding the proper amount for grandparent visitation, the Court of Appeals determined that 79 days was improper under the Grandparent Visitation Act because it was too significant and resembled the parenting time a non-custodial parent would have in such a case. However, after reviewing the circumstances of this particular case – including the closeness of the child to the maternal grandparents due to the father’s demanding work schedule – the Indiana Supreme Court affirmed the trial court’s order of visitation.

In another grandparent visitation case, Jocham v. Sutliff, 26 N.E.3d 82 (Ind. Ct. App. 2015), the Indiana Court of Appeals determined that a grandmother was no longer a “grandparent” with standing to seek visitation under the grandparent visitation statute at the time she filed the petition because the stepparent already had adopted the child. The court held that “visitation rights,” as referenced in the grandparent visitation statute, refer to already-established visitation rights at the time of the stepparent adoption, rather than the right to seek visitation in the future.

Finally, K.M. v. K.F., 2015 WL 5081428 (Ind. Ct. App. 2015), involved a paternal grandmother who petitioned for visitation rights after the death of the child’s father. Grandmother had regularly visited the child during the first seven months of her life, but ceased communication while there was a protective order against the father because she feared it would seem like indirect contact on the father’s part. The appellate court affirmed that it was in the child’s best interests to have the opportunity to benefit from a relationship with the father’s family, and specifically, the paternal grandmother. The appellate court noted, however, that grandparent visitation that followed the Indiana Parenting Time Guidelines was excessive, especially because the grandmother had not been significantly involved in the child’s daily life, and that the trial court should determine visitation based on the mother and child’s impending move across the country to follow mother’s fiancé in his military assignment.

In sum, another year has passed in the development of grandparent visitation rights, which has come a long way in the 15 years since the U.S. Supreme Court struck down as unconstitutional an overbroad third-party visitation statute in Troxel. Further developments in this area of family law in 2016 will be of continued interest.•


Margaret Ryznar is an associate professor of law at Indiana University Robert H. McKinney School of Law. The opinions expressed are those of the author.


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