Grandparent Visitation Rights

Posted By Hollingsworth & Zivitz, PC || 2-Apr-2013

In a recent case In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B. , the Indiana Court of Appeals reversed an order vacating paternal grandmother's grandparent visitation rights on the basis that the trial court initially granting the grandparent rights lacked the statutory authority to do so. The Court of Appeals found, however, that the guardians' objections to her want of standing were waived when the guardians failed to appeal the original order.

J.C. is the mother of M.A., who had two daughters with his wife. The girls were home when he shot and killed his wife. M.A. went to prison and the girls moved in with M.A.'s half brother, J.B., and his partner, S.B. The couple later filed for guardianship of the girls, in which the grandmother, (J.C.) filed a motion to intervene and a petition for grandparent visitation.

The grandmother was eventually granted unsupervised grandparent visitation on a strict schedule. The guardians didn't appeal the original order or the amended order. After the grandmother initiated a telephone call between one of the girls and her incarcerated father, the guardians sought to terminate the grandmother's visitation. They claimed she never had standing under the grandparent visitation statute. The grandmother argued that the guardians waived their standing by consenting to the provisional visitation agreement and by not appealing the original visitation order.

The trial court ruled in favor of the guardians and vacated the visitation order.

The Court of Appeals reversed the trial court and concluded that, although the grandmother lacked standing to pursue the original grandparent visitation order, the guardians' objections to the grandmother's standing were waived when the guardians failed to appeal the original order. The Court also concluded that the grandmother's visitation rights were not terminated by the adoption of the minor children, because they were adopted by their uncle and his partner, and not a non-relative third-party.

However, the grandmother's fight may not be over yet. The Court of Appeals did mention that the subject may be revisited. "Given that nearly a year has passed since the grandparent visitation order has been vacated, it may be wise for the trial court to schedule a hearing sua sponte on the children's best interests to determine whether and to what extent grandparent visitation should occur in the future," Judge John Baker wrote in In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B., 48A02-1204-GU-326.

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