Grandparent Visitation

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To:
From:
Date: June 10, 2004
Subject: Grandparent’s Visitation

MEMORANDUM

Based on the limited facts, the Johnson Superior Court should, at the least, modify the Agreed Entry between the parties that, among other things, granted Catherine McHugh (hereinafter the “grandmother”) visitation of the minor child Christopher A. Cronin (hereinafter the “child”). There is an issue as to whether the grandmother is entitled to visitation rights to the minor child and whether the bad relationship between the Alice Cronin (hereinafter the “mother”) and grandmother is a consideration in determining the child’s best interest. Grandparents Visitation Act

Indiana’s Grandparents Visitation Act (hereinafter “Act”) allows a child’s grandparent to seek visitation rights if (1) the child’s parent is deceased; (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) the child was born out of wedlock. Ind. Code 31-17-5-1. The court may grant visitation rights if the court determines that visitation is in the best interest of the child. Ind. Code 31-17-5-2. The court may consider whether a grandparent has had or has attempted to have meaningful contact with the child when determining the best interests of the child. Id (emphasis added). The Act states “[a] proceeding for grandparent’s visitation must be commenced by the filing of a petition entitled, “In Re the visitation of ______”. Ind. Code 31-17-5-3 (emphasis added). The petition must, among other things, be filed by a grandparent entitled to receive visitation rights under the Act. Id. (emphasis added). Upon hearing evidence in support of and opposition to a petition filed under this chapter, the court shall enter a decree setting forth the court’s findings and conclusions. Ind. Code 31-17-5-6 (emphasis added).

In the present case, the grandmother maintains visitation rights pursuant to an Agreed Entry by the parties filed with and approved by the Johnson Superior Court. The Agreed Entry allows the grandmother visitation rights on Saturdays between the hours of 9:00 am and 7:00 pm. The mother must move to modify or terminate the Agreed Entry in order to cease the grandmother’s visitation with the child. If the court terminates or modifies the Agreed Entry to exclude the grandmother’s visitation, the grandmother must file a petition for visitation with the court that had jurisdiction of over the parents’ marriage. Ind. Code 31-17-5-4 (emphasis added). The Act, in two different sections, uses ‘words of mandate’ when explaining the procedure that a grandparent must follow in seeking visitation rights. Ind. Code 31-17-5-3 instructs that a petition must be filed by a grandparent entitled to receive visitation rights . . . Here, the grandmother would have standing to seek visitation rights under the Act, as the marriage of the child’s parents has been dissolved by the Johnson Superior Court. The grandmother must follow the procedures outline in Ind. Code 31-17-5-1 and 31-17-5-3. The court cannot, sua sponte, grant the grandmother visitation. Troxel v. Granville

Indiana, like other states, has a statute allowing third parties, such as grandparents, visitation rights. The United States Supreme Court, in Troxel v. Granville, 530 U.S. 57 (2000), addressed the issue of grandparent visitation when it examined the application of a Washington statute, which allowed any person to petition a court for visitation rights. In Troxel, the Court considered a state court decision granting grandparents visitation where their son, the children’s father, had died, and the children’s mother had remarried. According to the Washington statute, any person may petition the court for visitation rights at any time and authorizes the courts to grant such rights whenever visitation may serve a child’s best interest. Id. at 60. The Court, in analyzing the statute, observed that once the matter was placed before a judge, a parent’s decision that visitation...
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