A grandmother fighting to keep a visitation order for her out-of-wedlock grandchildren failed to persuade an Indiana Court of Appeals panel to rule in her favor. Instead, the panel concluded grandparent visitation orders do not survive the subsequent marriage of the natural parents of a child born out of wedlock.
A few years after her two grandchildren were born, Tara Eary petitioned for an order of grandparent visitation pursuant to Indiana’s Grandparent Visitation Act. She specifically requested the visitation under Indiana Code Section 31-17-5-1(a)(3) on the ground that the children were born out of wedlock, and the trial court granted her request.
Two years later, the children’s biological parents married and subsequently moved to dismiss Eary’s visitation order on the ground that their marriage had “legitimized” the children and that, as a matter of law, the visitation order did not survive the marriage. The St. Joseph Circuit Court disagreed and denied the motion, prompting the couple to pursue an interlocutory appeal.
Appealing the motion to dismiss, Allison and Kyle Lanthier alleged the Indiana Grandparent Visitation Act does not provide for the survival of the visitation order after the parents have legitimized the children by their marriage.
“Here, the Act does not include the subsequent marriage of a child’s natural parents as a circumstance in which an existing grandparent visitation order survives,” Judge Edward Najam wrote for the appellate court. “Thus, we conclude that a grandparent visitation order does not survive the subsequent marriage of the natural parents of a child born out of wedlock.”
Additionally, the appellate court found that a grandparent visitation order entered over a child born out of wedlock survives the “establishment of paternity of a child by a court proceeding,” but that a marriage is not a court proceeding. It also found the survival of a grandparent visitation order following a subsequent adoption was not an equivalent circumstance to the legitimation of a child by the subsequent marriage of the child’s natural parents.
“In sum, the Act is in derogation of the common law and must be strictly construed,” Najam wrote. “Instead, Grandmother’s argument on appeal asks this Court to read words into the Act that are not there. We will not read the Act to say something it plainly does not say, and we will not disregard the words actually chosen by our General Assembly to strike the balance between allowing for grandparent visitation while also protecting a fit biological parent’s rights over his or her children.”
The appellate court thus reversed and remanded Allison Campbell, et al. v. Tara Eary, 19A-MI-00006 with instructions to vacate Eary’s visitation order.