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Appellate panel reverses parenting time for remote ex-boyfriend

November 9, 2016

The Indiana Court of Appeals has reversed a lower court order granting a man visitation with his ex-girlfriend’s daughter, concluding that third-party visitation should only be granted if it is in the best interests of the child.

In the case of Amy L. Brown v. Adrian Lunsford, 82A04-1602-JP-357, Amy Brown gave birth to her daughter, S.B., in 2007. S.B.’s biological father is neither involved in her life nor listed on her birth certificate.

When S.B. was just over a year old, she and her mother moved into Adrian Lunsford’s home, and Lunsford and Brown had a son together shortly thereafter. Lunsford and Brown never married, and Brown and the children eventually left Lunsford’s home when S.B. was 4 years old.

After the separation, S.B. continued to visit Lunsford when he had parenting time with his son, A.L. However, Brown told the court she ended S.B.’s visitation with her ex because she noticed behavioral changes, such as crying, confusion and trouble at school. After the visitation stopped, Brown said her daughter’s behavioral issues also stopped.

Brown and the children moved to Tennessee in June 2015, and in September Lunsford requested an order granting him parenting time with S.B., calling her “his stepdaughter since he was the only parent that child had known.” The Vanderburgh Superior Court granted Lunsford visitation with S.B. one weekend per month.

Brown filed a motion to correct error and a motion to reconsider and/or rehearing, both of which were denied. She then appealed, arguing that the trial court lacked jurisdiction over S.B. because she was not an Indiana resident. But the Indiana Court of Appeals rejected that argument in an opinion Wednesday, writing that her argument was one of procedural error, not a jurisdictional issue, and further, that she had not lodged those claims in a timely manner.

Brown also argued that the judgment ordering visitation is void or invalid because Lunsford did not join S.B. as a necessary party to the paternity action he used as a vehicle for requesting visitation, as is required by state statute. But the Court of Appeals also rejected that argument, writing that the Indiana Supreme Court had previously held that “failure to name a child as a party in a paternity action does not necessarily render the judgment or agreement void, but merely voidable.” The court also noted that Brown had once again failed to raise the issue in a timely manner.

However, when looking at the merits of Brown’s claims, the Court of Appeals agreed that the Vanderburgh Superior Court had abused its discretion by granting Lunsford third-party visitation.

Although state appellate courts had allowed for third-party visitation in previous cases, the panel wrote that in Brown’s case, the unique facts — specifically her decision to deny Lunsford visitation with S.B. — show that Brown was acting within her right as a mother to deny her ex visitation in the best interest of the child. Thus, the trial court’s decision was an abuse of discretion, the appellate court held.

 

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