COA: GAL wrongly appointed in grandparent visitation dispute

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A guardian ad litem should not have been appointed in a visitation dispute between a mother and her child’s grandfather after he was denied more than a year’s worth of visitations, the Court of Appeals of Indiana has ruled, remanding to determine if a modification of the parties’ agreement is in the child’s best interests.

Tiffany Shelton and her late husband, whose grandfather was Thomas M. Hayes, lived with Hayes for a portion of their marriage and after the couple had their first child. A few years later, Shelton’s husband died and she moved out of Hayes’ home with her child.

The mother and child then moved in with William Shelton, whom Tiffany married in June 2020 and adopted the child in March 2021.

When Hayes filed a subsequent petition for joint custody of the child, he and the mother came to an agreement about visitations, with Tiffany Shelton agreeing that Hayes was “entitled to grandparent visitation with the Child” and that those visits were in the child’s best interests.

The Lake Superior Court accepted the agreement as an order that Hayes would have four visits with the child per month, including one weekend session and video chats with the child up to three nights per week.

But by April 2021, Hayes filed a petition for contempt and motion to enforce after he alleged that the mother had “wholly failed and/or refused to comply with” the agreement, denying him 27 total weekday visits and 10 overnight visits.

The Sheltons sought to modify the visitation agreement, claiming that a substantial change of circumstances had taken place and that visits were no longer in the child’s best interest. The trial court granted Hayes’ request for a guardian ad litem, who in turn suggested that the agreement should remain as is. The GAL also found that child “wants to see” Hayes and that “the prospect of not seeing [Grandfather] made him very sad, very quickly.”

The motion to modify was ultimately denied and the mother was found in contempt for violating her obligations under the agreement, while Hayes was granted 10 overnight visits with the child as “make-up visitation.”

The Court of Appeals affirmed in part and reversed in part in Tiffany M. Shelton and William M. Shelton v. Thomas M. Hayes, 22A-MI-120, disagreeing with the GAL appointment.  

The appellate court held that because neither the Grandparent Visitation Act nor the statute authorizing the appointment of a GAL provides for such in a grandparent-visitation proceeding, a grandparent cannot therefore request, and a court cannot appoint, a GAL in such proceedings over the objection of a party.

“As such, the trial court erred when it granted Grandfather’s motion and appointed a GAL,” Judge Edward Najam wrote, noting that many of the court’s findings mirror the GAL’s reports or testimony.

The COA also reversed the trial court’s order and remanded for the court to disregard the GAL’s reports and testimony.

“The court may then consider the other evidence previously presented by the parties and, in the court’s discretion, may interview Child in chambers, to determine whether a modification of the Agreement is in Child’s best interests,” Najam wrote.

The COA also disagreed with the parents’ assertion that the holdings in J.B. v. R.C. (In re Adoption of A.A.) 51 N.E.3d 380, 384 (Ind. Ct. App. 2016), trans. denied and Schenkel v. Gaunt (In re Visitation of J.D.G.), 756 N.E.2d 509, 512 (Ind. Ct. App. 2001) were “decided incorrectly” and that those cases elevate the status of grandparents to that of a parent and violate parents’ fundamental rights to raise their children.

In the case at hand, the COA concluded that the trial court properly placed the burden on the parents to prove that modification of the agreement was in the child’s best interests.

It further noted that the parents disregarded the fact that this is not an appeal from an initial grandparent visitation order and that the court did not fashion the agreement – the mother did.

“If Mother had not wanted Grandfather to see Child as often, she could have agreed to fewer days. But she did not,” Najam wrote. “As discussed above, it is Parents’ burden on remand to demonstrate that a modification of the Agreement is in Child’s best interests. If Parents meet that burden, it will be up to the court’s discretion to determine how to modify the Agreement. But if Parents do not meet their burden, then the court cannot modify the Agreement simply because it is no longer convenient for Parents.”

Lastly, the court found no issue with the granted 10 overnight visits, noting that those were visits to the grandfather that he was previously owed but denied.

“As a result, on remand, regardless of whether the court grants or denies Parents’ motion to modify the Agreement, the court’s sanction on the contempt finding was not improper,” the opinion concluded. “We therefore affirm that sanction.”

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