A new law requiring grandparents be notified of adoption petitions passed the General Assembly this year without a single vote in opposition and was signed into law by Gov. Eric Holcomb. That’s when the confusion began.
Bill author Rep. Mike Karickhoff, R-Kokomo, said he was perplexed by responses he received on Twitter assailing House Enrolled Act 1245 after it was signed into law and took effect July 1. He said opponents angrily tweeted that the bill would complicate and perhaps disrupt some adoptions. “People don’t understand what the bill does,” Karickhoff said.
“This bill simply provides notice (of an adoption petition) to grandparents who already have an existing right of visitation” in the form of a court order, Karickhoff explained.
But many lawyers read the language of the bill much more broadly. They see well-intended legislation that they say, in practice, could complicate a sometimes-delicate area of family law and even trigger intergenerational conflicts.
“This definitely has created an issue that will be ripe for disagreements,” said Indianapolis adoption attorney Nathan A. Leach. “I think it will cause me to ask more questions concerning the grandparents’ involvement in the children’s lives in a stepparent adoption, in a kinship adoption.”
Leach said the law won’t affect newborn adoptions or cases where children are adopted by non-relatives. However, “As far as stepparent and other kinship type of adoptions, it is worded pretty vaguely,” he said.
What the law says
Karickhoff said HEA 1245 was intended to narrowly address instances where a grandparent who has a recognized right of visitation in the form of a court order would be required to be notified of an adoption petition filed by a relative. He acknowledges this represents a very small percentage of grandparents.
But the revised adoption notice statute, I.C. 31-19-4.5-1, now says notice must be given to a grandparent who “has a right to petition for visitation,” and whose visitation “will not be terminated after the adoption.” The law bars notice of adoption for children who are under the care and control of the Department of Child Services, and in cases where a grandparent would not otherwise be entitled to receive notice.
“This only affects stepparent and relative adoptions, and when I say only, those are most of the adoptions that happen in the state of Indiana,” said adoption attorney Steven Kirsh. “It’s going to affect a lot of adoptions.”
He also says the language of the law differs from its original intent. Kirsh worries about cases where an adoptive parent might not know where a child’s grandparent is living, cases where the grandparent’s identity isn’t even known, or cases where a parent has legitimate reasons not to want grandparents to be involved. He said the notice requirement is likely to increase adoptive parents’ legal costs for serving interested parties, especially if resorting to notice by publication.
“The concept is a great concept,” Kirsh said of notifying grandparents. “The problems are in the details and in the practicalities of trying to administer the statute.”
Attorneys also say they’re concerned by an amendment that says grandparents must file a visitation petition before an adoption is entered. Bloomington appellate attorney Karen Wyle said that seems to be a “speak now or forever hold your peace” provision that appears to shut the door on grandparent visitation petitions after an adoption is finalized.
Wyle said she’s also concerned that the law might lead to a rise in grandparent petitions for visitation in general.
For grandparents, “Visitation petitions are often counter-productive and even tragically counter-productive,” Wyle said. In the worst cases she’s seen, “It’s very messy and terribly burdensome” emotionally and financially and “puts the (grand)children in the middle of a multi-year emotional crossfire.
“If you have a fit custodial parent,” Wyle said, “I’m not sure I know of an instance where filing (a grandparent visitation) suit is in a child’s best interest.”
Key court case
The genesis of HEA 1245 is a footnote in a grandparent visitation case, Jocham v. Sutliff, 26 N.E.3d 82 (Ind. Ct. App. 2014), trans. denied. The Indiana Court of Appeals reversed a Hamilton County trial court that granted visitation to maternal grandparent Melba Sutliff.
Sutliff’s daughter, Carmel attorney Stephanie Jocham, died after a divorce from her child’s father, Kirk R. Jocham. The grandchild was adopted by her stepmother, Emily Jocham, and Sutliff was granted visitation after the adoption. But the COA ruled the trial court erred, and Sutliff was not legally entitled to petition for visitation after her grandchild had been adopted. A divided Indiana Supreme Court, in a 3-2 decision, chose to let that ruling stand.
Court of Appeals Judge Margret Robb wrote the Jocham decision that sympathized with Sutliff while finding no right of visitation in her circumstance. “The legislature drew a fine line on this issue between protecting inter-generational relationships and protecting newly-formed adoptive family units. … There must be some assurance that the circumstances as they exist at the time of the adoption will not be thrown into disarray months or even years later by a grandparent newly seeking visitation.”
Robb included in the Jocham decision an invitation for lawmakers to revisit whether Sutliff and grandparents in similar cases should be notified of adoption petitions. “One way to avoid cutting off a grandparent’s opportunity to seek visitation rights by catching him or her unawares would be to amend the adoption statute to require notice of a petition for adoption be given to anyone who would be eligible … to seek grandparent visitation rights as of the time the petition is filed,” she wrote in a footnote.
In an interview, Robb said she, trial judges, DCS representatives and others worked with lawmakers to craft a narrow notice provision. She believes there are few cases that would trigger the notice requirement.
“If your child is a custodial parent, you don’t have the right to petition for grandparent visitation,” Robb said. That’s in keeping with the U.S. Supreme Court’s holding in Troxel v. Granville, 530 U.S. 57 (2000). There, the court ruled parents have a constitutional right to rear their children, and justices also struck down laws allowing third parties to petition for visitation over a parent’s objection.
“This statute did not enlarge who can petition for visitation or how they can petition,” she said. “It makes no substantive changes in the law.
“It’s to put a grandparent on notice that if they don’t act, or they fail to act, it’s at their own peril,” she said. Still, she said it’s not clear the revised statute would have provided relief to Sutliff in her case.
Karickhoff and Robb said the law is intended to apply in rare cases where a grandparent’s right to petition for visitation after an adoption would be severed, particularly in a stepparent adoption.
“This will hopefully prevent a bad situation from getting worse by denying somebody the ability to see their grandkids,” Karickhoff said.
Robb said the new notice requirement, even if it might apply more broadly than intended, is no different than notice requirements to interested parties in other civil litigation.
“There may be some inconvenience, and I’m not suggesting this is a perfect answer,” she said. “But it’s certainly a better alternative than the one we have. … I can’t speak to how the statute may be interpreted. I believe the Legislature’s intent was to craft a very narrow requirement.”
Kirsh said lawmakers could have been clearer, requiring notice provisions, for instance, only to grandparents who have an existing, meaningful relationship with their grandchildren. He also laments that once an adoption is finalized, grandparents appear under the statute to be barred from even seeking visitation.
“It seems to me that what this does is make sure the grandparent knows what’s going on while removing the right to sue after the adoption is complete,” Kirsh said. “That would possibly not be what the story driving the legislation would suggest.”•