Grandparent Visitation Statute Does Not Provide a Means for This Grandmother

Family Law Case Review
Case: In Re the Guardianship of A.J.A. and L.M.A., Minor Children; J.C. v. J.B. and S.B.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Indiana Supreme Court holds that Indiana’s Grandparent Visitation Statute does not provide a means for a paternal grandmother to seek visitation with her grandchildren, where her son murdered the mother of the grandchildren.

FACTS AND PROCEDURAL HISTORY:
In 2008, Father murdered his wife (“Mother”) in the presence of their two young children. Father’s brother and his significant other (“Guardians”) filed a petition for guardianship of the children, which was granted. The paternal grandmother (“Grandmother”) intervened in the guardianship matter for purposes of seeking grandparent visitation. An agreement was entered that gave Grandmother visitation for one hour each Sunday, supervised by chaperones, for a trial period of six weeks. During one of the trial visits, Grandmother apparently took the children to visit Father in jail, violating both the temporary visitation order and the no contact order in Father’s criminal matter.

In response, Guardians argued to the trial court that Grandmother lacked standing to seek visitation. The trial court initially disagreed, granting additional limited visitation for Grandmother. Numerous pleadings and hearings on the subject followed, after which the trial court issued findings and conclusions that its original grandparent visitation order was void and vacated, finding that Grandmother lacked. The Indiana Court of Appeals reversed, and the Indiana Supreme Court then granted transfer.

The Court reviewed the history of grandparent visitation rights, which did not exist at common law but were enacted by statute in Indiana in 1982. Indiana’s current Grandparent Visitation Statute allows for a visitation order under only three circumstances: (1) the child’s parent is deceased; (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) [subject to some restrictions], the child was born out of wedlock. Here, none of the three situations applied to Grandmother, and the Court rejected her arguments that Father was constructively deceased due to his 60 year prison sentence, or that Father’s murder of Mother constructively dissolved their marriage.

The Court also cited a factually similar Indiana Court of Appeals case from 2009, where it was determined that “since the grandmother was not the parent of the deceased parent, she did not have standing to seek visitation.”

The Court’s opinion concluded with an extended discussion about whether the trial court’s original order that allowed visitation was void, or merely voidable. Since the order did not involve, say, a mere procedural error, but instead implicated a complete lack of standing by Grandmother, her lack of legal right to pursue visitation was a defect beyond cure. Thus, the trial court’s original order granting visitation to Grandmother was void ab initio.

The trial court’s order, vacating its own prior order that had permitted Grandmother visitation, was affirmed.

To view the text of this opinion in its entirety, click here: In Re the Guardianship of A.J.A. and L.M.A., Minor Children; J.C. v. J.B. and S.B.

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The Matrimonial Law Group of Bingham Greenebaum Doll, LLP is one of the largest full-service matrimonial and family law practices in the State of Indiana. We represent clients in a wide spectrum of family law matters, including premarital agreements, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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