In Indiana, maternal and paternal grandparents have the right to petition for visitation with their grandchildren in certain circumstances. The grandparents may seek visitation rights if:
- The child’s parent is deceased,
- The marriage of the child’s parents was dissolved in Indiana, or
- The child was born out of wedlock and paternity has been established.
Of course, the Court always looks to the “best interests of the child” when determining whether it should award visitation to the petitioning grandparents. Significantly, grandparents cannot request visitation of a child if the child’s parents are still married. The legislature designed the law to prevent grandparents from intervening in intact families. There are a variety of reasons why grandparents may want visitation, but the purpose of this exclusion is to protect the constitutional and fundamental right of the parents to control the upbringing of their child. Courts award grandparent visitation, but limit its frequency and length so as not to interfere with parental rights.
When a Court awards grandparents visitation with their grandchildren, penalties for parents who refuse to honor the Court’s order or otherwise fail to comply with the order can be significant. For instance, in D.G v. W.M. et al., 18A-MI-2115, the Court awarded grandparents visitation with D.G.’s four children. Because the visitation generally did not occur, the grandparents petitioned the Court to hold D.G., the mother, in contempt of the visitation order.
The Court held the mother in contempt, and ordered that she serve 12 days in jail and pay $1,000 in attorneys’ fees. However, she did neither, nor did she resume grandparent visitation under the original order. The grandparents continued to file contempt actions against her.
The mother petitioned to terminate grandparent visitation, but the Court denied her petition and held her in contempt for failing to follow the order. A guardian ad litem (GAL) was appointed upon mother’s petition, and the GAL testified that grandparent visitation should actually continue. The Court ordered the mother to serve 180 days in jail and pay $14,000 in attorneys’ fees.
The mother appealed this decision, arguing that the grandparents should bear the burden of proving visitation was still in the children’s best interests. However, the Court of Appeals disagreed. Although the Court had never dealt with this in a grandparent visitation dispute, the Court used the same standard used in traditional custody and parenting time modifications. Namely, it was the mother’s burden to show it was against the children’s best interest because she petitioned for termination.
The Court found that she did not meet that burden. The Court of Appeals pointed to the GAL’s recent recommendation of continuing the grandparent visitation. Furthermore, the mother’s justification for terminating the visitation was due to her own conduct. Her own non-compliance with the order prevented continuing contact with the grandparents, and she had developed a toxic relationship with the grandparents because of her conduct.
Of Note: Recently, a senator introduced a bill to expand visitation rights to great-grandparents. After significant opposition from family law attorneys, it seems the bill will not be introduced for discussion or a vote any time soon. Permitting great-grandparents’ visitation rights would even further dilute the time the natural parents spend with the child, and their fundamental right to control their children.
About the Author
Mallory Deckard represents individuals, businesses and other clients with consistency and confidence. An even-keeled litigator and proactive counselor, she frequently represents clients in family law matters such as drafting and negotiating pre-marriage contracts, dissolution of marriage (divorce), issues of child custody and child support, and other family law concerns. She has served the Evansville community through involvement with Albion Fellows Bacon Center, Parenting Time Center, Kids Voice of Indiana, Pro Bono Protective Order Project, and other professional and civic organizations.