Posted on July 23, 2013
Grandparents’ rights is something of a hot topic in Indiana right now. We do have a statute (I.C. 31-17-5) governing grandparents’ visitation rights, but it’s quite old and, many would argue, out of date. The statute provides for grandparents to seek visitation in three circumstances: where the child’s parents are deceased, the child’s parents are divorced, or the child was born out of wedlock. If, therefore, the two parents are married, or if the single parent is allowing the grandparents ANY contact with the child at all (however minimal), the grandparents will not have grounds to petition the court for visitation.
The statute has remained unchanged while the courts have issued a number of opinions over the years that limit the rights of grandparents. Meanwhile, members of the Indiana General Assembly have been working on bills that would potentially expand grandparents’ rights.
A US Supreme Court case, Troxel v. Granville (2000) served to significantly limit the rights of grandparents. Prior to the case, in some jurisdictions anyone could petition for visitation of a child, and the court was free to grant the petition as long as the best interests of the child would be served by such an order. But in Troxel, the Court hammered on the presumption that fit parents act in the best interest of their children – so as long as the parents are fit, the State should not challenge the parents’ decisions regarding the children. The Troxel decision has had a huge effect on visitation rights everywhere – including right here in our backyard. Decisions issued by Indiana courts post-Troxel have “taken the teeth" out of our visitation statute, making it much harder for grandparents to win visitation rights in court.
As I mentioned, the General Assembly has introduced a number of bills that would expand grandparents’ rights – expanding grandparents’ rights to great-grandparents, for example, or attempting to give grandparents rights where the parents are still married to one another. But none of these bills has been signed into law. And there is significant opposition to any expansion of grandparents’ rights – from attorneys, some lawmakers, and advocacy groups who are concerned that expanding GP rights might be harmful to children, since simply becoming a grandparent does not change a person into a “cookie-baking, kind-hearted individual", since some GPs may not be good role models, and since interference with the parenting decisions of Mom and Dad (or Mom, or Dad, or Mom and Mom, or Dad and Dad…) could be confusing and harmful to the child. In addition, since fit parents have a constitutionally-protected right to raise their children as they see fit, any new legislation will have to treat carefully to avoid being struck down by the courts on constitutional grounds.
Post-Troxel, there are a number of issues left to be resolved by the lower courts. What must a grandparent prove to rebut the presumption that a parent’s decision to limit or deny GP visitation is in the child’s best interest? And by what standard must the argument be proved – the lower “preponderance" standard, or the more rigorous “clear and convincing evidence" standard, or something else? And what procedural thresholds must be cleared before litigation is an option? After all, litigation is almost never good for families – it is stressful, expensive, and can create a lot of bitterness that makes functioning together for the good of the child very difficult down the line.
If you are facing a grandparents’ rights issue in your family, don’t navigate it alone. These issues are, as I described above, very complex, thorny, and difficult emotionally and legally. Consult with a family law attorney in your neck of the woods for a thorough review of your rights, options, and chances of success going forward.
Best of luck, and thank you for stopping by.
Flood Family Law, LLC
Indianapolis divorce attorney
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