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Grandparents must establish certain factors to win visitation rights

On Behalf of | Oct 13, 2021 | Child Custody

Grandparents often play a special role in the life of a child. In the past, however, they did not have a right to see their grandchildren under common law. Many states have changed that. Indiana has recognized grandparent visitation rights since 1982. The Indiana law allows grandparents to bring an action for visitation only when one of the child’s parents has died, the child’s parents have divorced or the child’s parents were not married, but the father established paternity. In addition, they must overcome certain legal hurdles to establish visitation rights.

How does the court decide on grandparent visitation?

The Court of Appeals of Indiana recently reiterated its stance on the requirements a grandparent must meet in order to bring a successful case for visitation in In Re: The Grandparent Visitation of B.A.A. The U.S. Supreme Court stated in Troxel v. Granville, 530 U.S. 57, 64 (2000), that natural parents have a constitutional right to raise their children as they feel appropriate, and may even override what the court feels is in the child’s best interest in some cases. The Court balanced the parent’s right against the child’s interests using four key factors:

  • The court should presume that a fit parent’s decision regarding grandparent visitation is in the child’s best interest. The grandparent has the burden of proof to overcome that presumption.
  • The court must give “special weight” to a fit parent’s decisions regarding any nonparental visitation. This heightens the standard of proof the grandparent must overcome.
  • The court should give “some weight” to whether the parent has allowed the grandparents any visitation time with the child. If the parent is denying all contact, that would threaten the existence of any relationship between the child and grandparent, and may argue in the grandparent’s favor.
  • The grandparent must provide evidence that visitation is in the child’s best interest.

As noted in In Re: The Grandparent Visitation of B.A.A, the Indiana Supreme Court confirmed that courts must follow these factors in In re KI, 903 N.E.2d 453 (Ind. 2009).

Still good law

In the current case, the Court of Appeals reiterates the necessary factors and examines whether the district court correctly applied those factors to the facts at hand. The grandparents had presented no evidence or allegations that the mother was unfit, so presumably, the court must apply all four factors, which it failed to do with the first three. The court remanded the case back to the district court for new findings after applying all four factors.

What to expect in the future

In Re: The Grandparent Visitation of B.A.A. reminds Indiana district courts that parents have constitutional rights regarding their children’s upbringing that may even override what it considers in a child’s best interest. Although courts may certainly grant grandparents visitation rights under some circumstances, the bar is very high, and the judges do not have wide discretion.