Grandparent visitation order remanded in dispute with guardians

A court order granting a Johnson County grandmother overnight visitation with her 4-year-old grandchild lacked the required statutory findings to support it, but the Indiana Court of Appeals in a first-of-its-kind ruling involving a child’s guardians found enough evidence to let the order stand while remanding for more conclusive findings.

Betty Mays is the paternal grandmother of a child who is cared for by maternal grandparents who are the child’s permanent guardians. Mays has provided care for the child in the past, and after the guardians filed a petition to adopt the child, Mays intervened to seek visitation in a petition that was awarded in Johnson Superior Court. She was awarded visitation of six weekends per year, one week per summer, and twelve hours in proximity to Child’s birthday and Christmas.

The guardians asked the Indiana Court of Appeals to reverse the order in Daniel Welbourne, et al. v. Betty Mays, 20A-MI-01001, but the panel declined to go that far. “According to Guardians, Grandmother wholly failed to satisfy her burden of proof, such that reversal rather than remand would be warranted,” Judge L. Mark Bailey wrote.

“… The trial court made factual findings detailing the lengthy history of contact and attempted contact between Child and Grandmother. The trial court found that contact had been less than ‘regular’ but also found that Grandmother had ‘consistently’ sought visitation, there had been ‘rising tensions between the parties,’ and Guardians had ‘hampered’ the development of a relationship between Grandmother and Child.

“The court also observed that, despite being given the opportunity for objections in prior guardianship proceedings, Father, Mother, and Guardians had not objected to Grandmother having contact with Child. … At bottom, Guardians do not identify a lack of evidence but rather request that we reweigh the evidence. We decline to do so,” Bailey wrote.

However, the COA noted that the grandparent visitation analysis framework set forth in McCune v. Frey, 783 N.E.2d 752, 757–59 (Ind. Ct. App. 2003), has never been reviewed in a case involving a visitation dispute between a grandparent and a child’s guardian.

“Guardians are not identically situated to parents, but there is similarity, in that Guardians possess some authority over Child. The trial court did not explicitly state that Guardians’ wishes were being accorded great weight, but neither were their desires wholly disregarded. As a practical matter, Guardians’ wishes were accorded some weight by the placement of the burden of proof upon Grandmother,” the panel found.

“Grandmother asserts that here the trial court applied the McCune factors to the extent practicable in a non-parent/grandparent visitation dispute. We disagree,” Bailey wrote. “Guardians are permanent guardians having authority largely akin to parental authority. The trial court awarded Grandmother visitation, including overnights. The generous award was against the wishes of Guardians and supported by cursory language to the effect that grandparent-child relationships are typically beneficial and Grandmother loves Child. In these circumstances, we remand for more particularized findings relative to this child and this particular relationship.

“… The trial court did not commit clear error by applying an incorrect legal standard. There is evidence of record to support the judgment that some grandparent visitation is in Child’s best interests. However, the trial court failed to enter adequate factual findings as required by statute to support the specific terms of the visitation order and modifications therein, including the propriety of overnight visits, and that such visitation is in the best interests of Child; accordingly, we remand,” the panel concluded.

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