In its recent case In Re the Visitation of L-A.D.W., the Indiana Supreme Court overturned the Court of Appeals reversal as to the amount of grandparent visitation granted, and in doing so upheld the trial court’s order including 24 total overnights a year and weekly evening visits. In this case both the Court of Appeals and Supreme Court upheld the trial court’s order that grandparent visitation should be granted and the analysis focused on the amount of time awarded. The court agreed with the Court of Appeals that no set standard for “occasional, temporary visitation” has previously been determined, but found that the trial court did not abuse its discretion in the instant case regarding the amount of grandparent visitation ordered. The Court of Appeals had cited a case in which less visitation was ordered than the instant case and was found to be an abuse of discretion. However, the Supreme Court made clear that the amount of visitation which is appropriate will vary case by case and must be determined by the specific facts of each case, giving substantial deference to the trial court in determining the amount. The court emphasized that each case will have different facts so a strict standard for the amount of visitation would not be appropriate. Furthermore, while the Parenting Time Guidelines cannot be the basis for the amount of visitation, it is not an abuse of discretion merely because an order resembles the guideline schedule. The court gives substantial deference to the trial court and its determination of a grandparent visitation award that does not substantially infringe on the parent’s right to determine their child’s upbringing.
In Indiana a grandparent may seek visitation in three instances: 1) the child’s parent is deceased, 2) the marriage of the child’s parents has been dissolved in Indiana, or 3) the child was born out of wedlock (except that paternity must be established for paternal grandparents to be granted visitation). A parent has a constitutional right to control their child’s upbringing; therefore, while a court may grant grandparent visitation if it is in the child’s best interests, the court begins with the presumption that a fit parent’s decision is in the child’s best interests. The court must enter findings which address the presumption that a fit parent acts in the child’s best interests, the special weight given to a fit parent’s decision to limit or deny such visitation, whether such visitation is in the child’s best interests, and whether such visitation has been denied by the parent or merely limited. Parents or grandparents with a grandparent visitation matter should consult with a family law attorney about the legal issues and specific facts of their case.
Prepared by Megan L. Gehring of Richard A. Mann, P.C. Attorneys at Law, www.rmannlawoffice.com
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