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Wednesday, March 25, 2009

Ind. Decisions - Supreme Court decides one today, on grandparents' rights [Corrected]

In the Matter of the Paternity of K.I., by Grandmother and Next Friend J.I. v. J.H. is a 13-page, 5-0 opinion authored by Justice Rucker, who writes:

The trial court modified the custody of a minor from the child's maternal grandmother to the child's natural father. The trial court also directed that grandmother be granted visitation consistent with the Indiana Parenting Time Guidelines. We conclude the trial court correctly modified custody but erred in directing the parties to rely on the Guidelines to determine visitation. * * *

The central issues in this case are: (1) what standard a trial court should apply when ruling on a parent's petition to modify custody of a child who is already in the custody of a third party, and (2) what role, if any, the presumption in favor of the natural parent plays in a modification proceeding. * * *

I. * * * In essence, although in a very technical sense, a natural parent seeking to modify custody has the burden of establishing the statutory requirements for modification by showing modification is in the child's best interest, and that there has been a substantial change in one or more of the enumerated factors, as a practical matter this is no burden at all. More precisely, the burden is minimal. Once this minimal burden is met, the third party must prove by clear and convincing evidence “that the child's best interests are substantially and significantly served by placement with another person.” B.H., 770 N.E.2d at 287. If the third party carries this burden, then custody of the child remains in the third party. Otherwise, custody must be modified in favor of the child's natural parent. In this case, because J.I. failed to carry her burden, the trial court properly granted J.H.'s petition to modify custody in J.H.'s favor. On this point we affirm the judgment of the trial court.

II. In addition to modifying custody in J.H.'s favor, the trial court also ordered “that J.I. is to have visitation pursuant to the non-custodial parent's visitation provided under the Indiana Parenting Time Guidelines.” On cross-appeal J.H.argued the trial court abused its discretion in entering this order because it interferes with his parental rights and K.I.'s relationship with her parents. J.H.agrees that J.I.should have continuing contact with K.I. However, he contends that visitation should not be granted pursuant to the Guidelines. The Court of Appeals tacitly agreed and directed the court on remand to determine whether J.I. should be granted grandparent visitation under Indiana Code section 31- 17-5-1 or de facto custodian visitation under Indiana Code section 31-9-2-35.5.

We agree that J.I. is not entitled to visitation pursuant to the Indiana Parenting Time Guidelines. * * *

But we disagree with our colleagues that the de facto custodian statute provides J.I. any relief. More specifically, even assuming J.I. qualifies as a de facto custodian that status bears only on the question of custody. * * * The statute is silent on the question of visitation. In a modification proceeding, once the trial court determines that it is in the child's best interest that custody be granted to the natural parent, we must look elsewhere for guidance on whether and to what extent a third party may be granted visitation. That brings us to our next discussion.

Although grandparents do not have the legal rights or obligations of parents and do not possess a constitutional liberty interest with their grandchildren, nonetheless Indiana Code section 31-17-5-1, commonly referred to as the Grandparent Visitation Act, represents a Legislative recognition that “a child's best interest is often served by developing and maintaining contact with his or her grandparents.” Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999). Thus, in drafting the Act, the Legislature balanced two competing interests: “the rights of the parents to raise their children as they see fit and the rights of grandparents to participate in the lives of their grandchildren.”

Under the Act, a grandparent may seek visitation only if (1) the child's parent is deceased; (2) the child's parents are divorced; or (3) the child was born out of wedlock, but only if the child's father has established paternity. I.C. § 31-17-5-1. And the trial court may grant visitation if it determines that “visitation rights are in the best interests of the child.” I.C. § 31- 17-5-2. When a trial court enters a decree granting or denying grandparent visitation, it is required to set forth findings of fact and conclusions of law. McCune v. Frey, 783 N.E.2d 752, 757 (Ind. Ct. App. 2003). In those findings and conclusions, the trial court must address: (1) the presumption that a fit parent acts in his or her child's best interests; (2) the special weight that must be given to a fit parent's decision to deny or limit visitation; (3) whether the grandparent has established that visitation is in the child's best interests; and (4) whether the parent has denied visitation or has simply limited visitation. In re Guardianship of J.E.M., 870 N.E.2d 517, 520 (Ind. Ct. App. 2007); In re Paternity of P.E.M., 818 N.E.2d 32, 37 (Ind. Ct. App. 2004). We also observe that although the amount of visitation is left to the sound discretion of the trial court, "[t]he Grandparent Visitation Act contemplates only 'occasional, temporary visitation' that does not substantially infringe on a parent's fundamental right „to control the upbringing, education, and religious training of their children." Hoeing v. Williams, 880 N.E.2d 1217, 1221 (Ind. Ct. App. 2008) (quoting Swartz, 720 N.E.2d at 1221).

Although this case involves the visitation rights of a grandparent, it was not litigated under the Grandparent Visitation Act. Instead the trial court granted visitation in the context of a custody modification proceeding. And it did so directing visitation pursuant to the Indiana Parenting Time Guidelines. For the reasons previously discussed this was error. We therefore reverse the trial court on this point and remand this cause with instructions to enter appropriate findings and conclusions consistent with this opinion and the Grandparent Visitation Act.

Conclusion. The judgment of the trial court is affirmed in part and reversed in part. This cause is remanded for further proceedings.

Corrected: See this entry for explanation.

Posted by Marcia Oddi on March 25, 2009 12:00 PM
Posted to Ind. Sup.Ct. Decisions