Trial Court Within Discretion Denying Grandmother’s Petition for Visitation

Case: In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court was within its discretion in denying Grandmother’s petition for grandparent visitation, where Grandmother neither rebutted the presumption that Mother was a fit parent, nor did she meet her burden that grandparent visitation would be in the Children’s best interests.

NOTED: The Court of Appeals expressly declined to decide what legal standard should be applied to a modification of grandparent visitation, as opposed to establishing it in the first place.

FACTS AND PROCEDURAL HISTORY:
Mother has two young Children, born out-of-wedlock, with Father. In early 2013, Father “walked away” from Children and no longer had any contact with them. Prior to then, paternal Grandmother had periodic contact with Children, when the Father would see them. After Father stopped having contact with Children, Grandmother approached Mother informally to request contact with the Children, but Mother denied it citing concerns over prior incidents (e.g., Grandmother consuming alcohol around the children, not using a car seat on one occasion, etc.)

Grandmother subsequently filed a petition for grandparent visitation. At a subsequent hearing, the parties apparently agreed that Grandmother would have a “trial period” of supervised visitation, pending a full hearing.

At the next hearing, Grandmother put forth no evidence that Mother was unfit. On cross-examination, Grandmother also conceded she had allowed the Children to be placed in various dangerous or inadvisable situations during her trial parenting time. Following the hearing, the trial court denied Grandmother’s petition for visitation, from which Grandmother appealed.

The basis of Grandmother’s appeal was an argument that the trial court applied the wrong legal standard. Because the parties had previously reached an agreed entry for Grandmother’s visitation, Grandmother argued that the second hearing was a modification of an existing Grandparent visitation order, not an issue of whether to establish it in the first place. However, the Court of Appeals rejected that argument, agreeing with Mother that the original visitation order was a trial arrangement pending a full hearing on the matter. And, having properly addressed the McCune factors, the trial court was within its discretion to deny visitation.

In a footnote, the Court of Appeals also indicated that it was expressly reserving for a future case the issue debated by the parties as to the legal standard for a modification of grandparent visitation.

The trial court’s order denying grandparent visitation was affirmed.

To view the text of this opinion in its entirety, click here: In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, 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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