Visitation Order Due to Mother Cutting Grandfathers Efforts to See Child

Case: Case: K.L. v. E.H. 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court’s grandparent visitation order was affirmed, where the trial court addressed in its findings the various “Troxel factors” and, in light of that analysis, concluded a grandparent visitation order was appropriate, particularly in light of evidence that Mother was cutting off Grandfather’s efforts to see the child.

HELD: Trial court acted within its discretion when it ordered the parties to meet with a counselor for a confidential, mediation-like effort to resolve the case and then, when that effort failed, the trial court refused to hear evidence of what transpired during the session.

FACTS AND PROCEDURAL HISTORY:
Mother and Father were involved in a relationship, during which Mother became pregnant. While Mother was pregnant, Father committed suicide. Two weeks later, Mother filed to establish paternity.

Mother and the paternal Grandfather had some degree of a relationship while Mother was seeing Father, but that relationship stopped upon Father’s suicide. However, leading up to Child’s birth, Grandfather resumed efforts to communicate with Mother. When Child was born, Mother invited Grandfather and his wife to visit the hospital. Mother also once brought Child to see Grandfather at his house. Thereafter, Grandfather requested to see Child through multiple text message to Mother, but Mother did not grant any of those requests.

Several months later, the paternity court issued a Decree finding Father’s paternity. Grandfather followed that Decree with a petition for grandparent visitation.

The trial court held a hearing on grandparent visitation. After hearing testimony from Grandfather and his wife, the trial court entered an order that the parties participate in counseling, in an effort to resolve the matter informally. That counseling / mediation session was unsuccessful, so another hearing was set. Mother attempted to introduce testimony from the counselor / mediator, which the trial court denied.

Following testimony and evidence at the second hearing, the trial court issued detailed findings and conclusions, along with a phase-in grandparent visitation order that would give Grandfather visitation on two Sundays per month for three hours each. Mother appealed.

Mother first assigned error to the trial court’s exclusion of testimony by the counselor. Mother argued that the session was not conducted pursuant to the ADR and, even if it had been, those rules would not preclude admission of the counselor’s testimony into evidence. Citing the Indiana Supreme Court’s recent Horner case, the Court of Appeals noted that public policy and Ind. Evid. Rule 408 strongly favor the confidentiality of all matters that occur during mediation. The trial court had also noted from the bench that he wanted this session to confidential, and viewed as a mediation. Therefore, the trial court’s decision to exclude the counselor / mediator from testifying about the session was not an abuse of discretion.

Turning to the merits of the case, the Court of Appeals concluded that the trial court properly complied with the requirements of Troxel and its Indiana progeny, including to give weight to the parenting decisions of a fit parent. Given the findings entered by the trial court when analyzing the Troxel factors, the Court of Appeals concluded that the trial court did not abuse its discretion in entering the grandparent visitation order.

Judge Robb wrote separately to dissent from the Court’s affirmation of the trial court’s specific visitation order. She believed the trial court’s phase-in to unsupervised visitation for a two-year-old child occurred too fast. She would have remanded the matter with instruction to revise the visitation order to provide for visitation of twice per month for two hours, which would remain supervised by Mother pending further order of the court expanding the visitation to more time and/or unsupervised visitation — if then-appropriate under the circumstances.

To view the text of this opinion in its entirety, click here: K.L. v. E.H.

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
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