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Friday, February 06, 2015

Ind. Decisions - Court of Appeals issues 1 opinion today (and 4 NFP memorandum decisions)

For publication opinions today (1):

In Kirk R. Jocham v. Melba Sutliff , a 12-page opinion, Judge Robb writes:

Kirk Jocham (“Jocham”) appeals the trial court’s order granting grandparent visitation to Melba Sutliff (“Sutliff”). Jocham raises several issues for our review, of which we find the following dispositive: whether Sutliff had standing to petition for grandparent visitation. Concluding that Sutliff was not a “grandparent” entitled to seek visitation rights at the time she filed her petition, we reverse. * * *

Grandparents historically had no common-law right to visitation with their grandchildren. In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013). In 1982, the Indiana legislature passed the Grandparent Visitation Act (“GVA”), which is the exclusive basis for a grandparent to seek visitation. Id. Because the GVA was enacted in derogation of the common law, it must be strictly construed. In re Guardianship of A.J.A., 991 N.E.2d 110, 113 (Ind. 2013). To seek visitation rights, a grandparent must have standing as prescribed by the GVA; otherwise, the petition must be dismissed as a matter of law. Id. * * *

In this case ... Sutliff had no existing grandparent visitation rights at the time of the adoption, nor was she pursuing any. As noted above, at common law, a grandparent had no right to visitation. See In re M.L.B., 983 N.E.2d at 585. Therefore, the GVA does not protect an existing right, it confers a right upon a person who is statutorily entitled to ask for it. When Emily adopted K.J., she became his legal mother in Stephenie’s stead. See Ind. Code § 31-19-15-2(c) (stating that after a stepparent adoption, the adoptive parent “occup[ies] the same position toward the child that the adoptive [parent] would occupy if the adoptive [parent] [was] the biological [parent] . . . .”); see also In re Menzie, 469 N.E.2d at 1227 (noting the stepparent adoption statute “places the adoptive mother in the position of the child’s natural mother. Thus the adoptive mother becomes the natural mother of the child. All legal ties between the adopted child and her biological mother are severed.”). Following the adoption, Sutliff remained K.J.’s grandmother biologically, emotionally, and morally, but at the time she filed her petition for grandparent visitation, she was no longer legally his grandparent. * * *

We note the trial court’s concern that Sutliff did not get notice of the adoption petition, the granting of which ultimately cut off her right to seek visitation. However, she was not entitled to any notice.[2] * * *

Because Sutliff filed her petition seeking grandparent visitation after K.J. had been adopted by Emily, she was no longer legally entitled to grandparent visitation rights. The trial court erred as a matter of law in granting Sutliff’s motion to correct error, considering her petition on the merits, and ordering grandparent visitation. The judgment of the trial court is reversed.
[2] One way to avoid cutting off a grandparent’s opportunity to seek visitation rights by catching him or her unawares would be to amend the adoption statute to require notice of a petition for adoption be given to anyone who would be eligible under the GVA to seek grandparent visitation rights as of the time the petition is filed.

NFP civil decisions today (2):

In Re The Guardianship of Samantha R. Barton, Harriet Barton v. James P. Barton (mem. dec.)

Tamara Krebs v. Michael C. Krebs (mem. dec.)

NFP criminal decisions today (2):

Max E. Long v. State of Indiana (mem. dec.)

Shannon Robertson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 6, 2015 10:36 AM
Posted to Ind. App.Ct. Decisions