Family Law Case Study: Grandparents Visitation

Case:  In re: the Marriage of J.D.S. and A.L.S.

Case Summary – by Mike Kohlhaas 

HELD: Grandmother’s petition to modify grandparent visitation was properly dismissed because, at the time it was filed, Grandmother lacked standing to seek a new visitation order, since her son’s parental rights were terminated prior to her filing for grandparent visitation.

FACTS AND PROCEDURAL HISTORY: Father and Mother had two children during heir marriage. In 2002, Father filed a petition for dissolution of marriage. In 2003, Grandmother intervened in the dissolution requesting grandparent visitation with the two minor children. A month later, the trial court approved an agreed entry that gave Grandmother visitation with the children twice per month, in blocks of four hours each.

In 2007, Grandmother sought to modify the visitation. After a hearing, the trial court modified Grandmother’s visitation to one weekend per month, but the order also included a provision that Grandmother would not allow the children to have contact with Father during her visitation time and that any violation would subject Grandmother’s visitation to termination.

In 2008, Mother filed a contempt against Grandmother, asserting that Grandmother permitted contact between Father and the children during Grandmother’s visitation. After a hearing, the trial court ordered that Grandmother’s visitation was “TERMINATED” as a result of the violation.

In February 2010, Father’s parental rights to the children were terminated, and Mother’s new husband concurrently adopted the children. Three months later, Grandmother filed a petition to “modify” her grandparent visitation. Mother moved to dismiss, which dismissal was granted. Grandmother appealed.

On review, the Court of Appeals noted the narrow derogation of common law that now permits grandparent visitation, including when a parent is deceased, or the parents’ marriage has been dissolved. The Court of Appeals concluded that, at the time Grandmother’s petition was filed in 2010, Father’s parental rights had already been extinguished, thus removing Grandmother’s standing to seek visitation. The Court of Appeals reviewed the In re: Groleau case, in which a grandparent’s petition for visitation was already on file and preliminarily granted prior to the termination of the father’s rights; there, it was held that the petition was filed timely and thus survived the subsequent termination of the father’s parental rights. The Court also discussed In re G.R., in which a grandmother filed for visitation after parental rights had been terminated, and the Court of Appeals held grandmother had no standing to file for visitation thereafter.

In the instant case, while Grandmother previously enjoyed a visitation order, in 2008 it was expressly “terminated,” not suspended, limited, or otherwise reduced in a temporary manner. Thus, Grandmother’s 2010 petition, despite its title, was not really a petition to modify visitation but instead a petition to establish visitation anew. Since Grandmother’s petition was not filed until after Father’s parental rights had been terminated then, under In re G.R., Grandmother lacked standing to seek visitation and trial court’s dismissal of her petition was proper.

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