Indiana

Indiana Case: Another New Grandparent Visitation Case

The grandmother petitioning for visitation was the paternal grandmother of a child whose mother had died and whose father had voluntarily terminated his parental rights.

The Court of Appeals decided that paternal grandmother could not bring the grandparent visitation case because she was not the mother of the dead parent.

Why not? Because that is what the statute allows. Here is how the Court of Appeals decided the case:

In pertinent part, Indiana Code section 31-17-5-1 provides that a child?s grandparent may seek visitation rights if the child?s parent is deceased. For the purposes of the GVA, Indiana Code section 31-9-2-77 defines a ?maternal or paternal grandparent? as:

(1) the adoptive parent of the child?s parent;
(2) the parent of the child?s adoptive parent; and
(3) the parent of the child?s parent.

As noted by the trial court, when read together, the statutes provide that a parent of the child?s parent may seek visitation rights if the child?s parent is deceased. The ?child?s parent? referred to in code section 31-17-5-1 is the same person as the ?child?s parent? referred to in code section 31-9-2-77. Therefore, the GVA confers standing only upon grandparents who are the parents of the deceased parent of the child. Here, Grandmother is not the parent of the child?s deceased parent, and she does not have standing under the statute to seek visitation. The trial court did not err when it dismissed Grandmother?s petition.

Quite often I get comments and/or e-mails that there are not grandparent rights in Indiana, and I have to wonder if those people have read the statute. What they may not have read about is how the appellate courts interpret the statute. The following is from this opinion at page 3:

Grandparents must have standing as prescribed under the GVA in order to seek visitation rights. Maser, 809 N.E.2d at 432 (citations omitted). The primary purpose of standing is to ensure that the party before the court has a substantive right to enforce the claim being made. In re J.D.G., 756 N.E.2d 509, 511 (Ind. Ct. App. 2001). If the grandparent lacks standing, then the petition must be dismissed as a matter of law. Id.

The GVA was enacted in derogation of the common law and must be strictly construed. In re Visitation of J.P.H., 709 N.E.2d 44, 46 (Ind. Ct. App. 1999). In construing a statute, statutes in pari materia should also be considered together to effectuate legislative intent. Horn v. Hendrickson, 824 N.E.2d 690, 698 (Ind. Ct. App. 2005); In re Visitation of J.P.H., 709 N.E.2d at 46.

If you do meet the standing requirements, you cna file and then you will need to prove your case.

For those who think they have a grandparent visitation case or those who have to defend a grandparent visitation case, give me a call at 765-641-7906 if you need legal counsel.

Full post as published by Sam Hasler's Indiana Divorce & Family Law Blog on July 24, 2009 (boomark / email).