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Thursday, July 30, 2015

Ind. Decisions - A third Supreme Court opinion today; this one on grandparent visitation

In In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D., a 17-page opinion in which 2 justices concur only in the result, Justice David writes:

After a hearing, in which two mental health experts opined on what would be in the best interest of L-A, the trial court determined that it was in L-A’s best interest to have a meaningful and ongoing relationship with Grandparents. The trial court ordered a visitation schedule, which followed the visitation schedule that was initially recommended by one of the mental health experts. This schedule was crafted to allow L-A to transition into the primary care of her Father.

Father appealed, arguing that the trial court failed to give special weight to his decisions regarding L-A’s upbringing, or to properly apply the presumption that a fit parent acts in the child’s best interest. Father also disputed the amount of visitation that was awarded. On appeal, the Court of Appeals affirmed the trial court’s order for grandparent visitation but reversed and remanded on the amount of visitation, determining that the amount of visitation exceeded the “occasional, temporary visitation” that is permitted under the Grandparent Visitation Act. In Re Visitation of L-A.D.W., 24 N.E.3d 500, 516 (Ind. Ct. App. 2015) (citation omitted). [Jan. 13, 2015]

Although the Court of Appeals found that the amount of visitation was improper under the Grandparent Visitation Act, the court first noted that “Indiana courts have not established a set standard for ‘occasional, temporary visitation.’” Id. at 515 (citation omitted). Thus, the court looked to past decisions for guidance. Id. We likewise recognize that this Court has not provided a standard for determining what amount of visitation is appropriate under the Grandparent Visitation Act. However, we are not convinced that precedent compels finding an abuse of discretion in the current case. Although we do not seek to set out steadfast rules regarding the permissible amount of visitation that can be ordered, transfer is granted to reaffirm the discretion of the trial court in assessing what amount of visitation would be in the child’s best interests. After reviewing the circumstances of this particular case, we hold that the trial court did not abuse its discretion in setting the amount of grandparent visitation. We affirm the entirety of the trial court’s order granting grandparent visitation. * * *

Conclusion. We summarily affirm the Court of Appeals in upholding the award of grandparent visitation. We also hold that the trial court did not abuse its discretion in the amount of visitation that it granted to Grandparents under the Grandparent Visitation Act. Accordingly, the trial court’s order on grandparent visitation is affirmed. Dickson and Massa, J.J., concur.

Rush, C.J., concurs in result only with separate opinion in which Rucker, J., joins.

Rush, J., concurring in result. [which begins at p. 15] I concur fully with the majority, except as to its analysis of the quantity of visitation awarded—and even on that issue, I concur in result. In K.I., and again in M.L.B., we cautioned that the amount of grandparent visitation must be carefully limited so as not to impede parents’ fundamental constitutional right to direct their children’s upbringing. In my view, the majority’s reliance on our usual “deference to trial judges in family law matters” insufficiently protects the parent’s constitutional rights and risks allowing excessive awards to escape meaningful appellate review. But even under the closer scrutiny I would apply, the trial court’s award of 24 overnights per year, plus short visits weekly and for a few special occasions, does not unduly infringe on Father’s parental rights under these circumstances.

The majority rightly recognizes our prior admonitions that “[t]he Grandparent Visitation Act contemplates ‘only occasional, temporary visitation’” and that grandparents’ statutory right to seek visitation must remain secondary to natural parents’ “fundamental constitutional right to direct their children’s upbringing without undue governmental interference.” * * *

My disagreement is only with the majority’s reluctance to craft “strict standards on the amount of permissible visitation.” Slip op. at 13. In my view, K.I. and M.L.B. have already imposed a very strict standard indeed—though not one that can be quantified as a bright-line number of days or hours—in order to protect the natural parents’ constitutional rights as Troxel v. Granville, 530 U.S. 57 (2000), demands. Under that standard, similarity to the Parenting Time Guidelines becomes problematic not when a grandparent’s visitation coincides with too many school vacations or family birthdays as the majority suggests, see slip op. at 8 n.6, but when the overall quantity becomes excessive—too closely mirroring the amount of time that would ordinarily be reserved for a natural non-custodial parent. The quantity awarded in any particular case is, of course, a dis-cretionary judgment—but the constitutional protections in K.I. and M.L.B. limit that discretion considerably. Accordingly, I find it unhelpful to frame this issue as involving our usual “substantial deference to the trial court’s determination of family law matters.” Slip op. at 8.

ILB: The ILB would be pleased to post a thoughtful analysis of this and related Indiana grandparent visitation opinions.

Posted by Marcia Oddi on July 30, 2015 03:42 PM
Posted to Ind. Sup.Ct. Decisions