Generally, the case arises when a grandparent contacts me because they have a dispute with their son/daughter/son-in-law/daughter-in-law/whomever and that person is prohibiting them from having visitation with their grandchild(ren). Or perhaps the grandparent's own child got married, later divorced, the marriage breakup was bitter and the custodial parent won't give the grandparents access to the children. In any event, the problem is getting access to the child or children and there is always someone who is prohibiting it. What to do?
Every attorney worth his/her salt will first want to know what the law says so that as the facts are explained to the attorney, they can fit those facts into the law. In Indiana there exists a section of "code" in the area of family law and custody and visitation addressing grandparent's visitation. There are several sections and below are all of them. Please understand that although this section of the law has not been modified by the legislature since 1997, you absolutely must consult the latest version of the law. That can be found conveniently at www.in.gov. The version below is current as of March 21, 2009. Now here is what that law reads:
What are grandparents rights? How does one enforce them? How do they apply in Indiana? You should have those questions, and others, answered by the time you complete reading this section. Then you can decide if you wish to pursue legal action or, better yet, get a second opinion from another family law attorney.
(b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the child's father has not established paternity in relation to the child.
As added by P.L.1-1997, SEC.9.
IC 31-17-5-2
Best interest of the child; in chambers interview of the child
(a) The court may grant visitation rights if the court determines that visitation rights are in the best interests of the child.
(b) In determining the best interests of the child under this section, the court may consider whether a grandparent has had or has attempted to have meaningful contact with the child.
(c) The court may interview the child in chambers to assist the court in determining the child's perception of whether visitation by a grandparent is in the best interests of the child.
(d) The court may permit counsel to be present at the interview. If counsel is present:
(1) a record may be made of the interview; and
(2) the interview may be made part of the record for purposes of appeal.
As added by P.L.1-1997, SEC.9. Amended by P.L.15-2004, SEC.3.
IC 31-17-5-3
Petition
A proceeding for grandparent's visitation must be commenced by the filing of a petition entitled, "In Re the visitation of _________". The petition must:
(1) be filed by a grandparent entitled to receive visitation rights under this chapter;
(2) be verified; and
(3) set forth the following:
(A) The names and relationship of:
(I) the petitioning grandparent or grandparents;
(ii) each child with whom visitation is sought; and
(iii) the custodial parent or guardian of each child.
(B) The present address of each person named in clause (A).
(C) The date of birth of each child with whom visitation is sought.
(D) The status under section 1 of this chapter upon which the grandparent seeks visitation.
(E) The relief sought.
As added by P.L.1-1997, SEC.9.
IC 31-17-5-4
Venue
A grandparent seeking visitation rights shall file a petition requesting reasonable visitation rights:
(1) in a circuit, superior or probate court of the county in which the child resides in a case described in section 1(a)(1), 1(a)(3), or 10 of this chapter; or
(2) in the court having jurisdiction over the dissolution of the parents' marriage in a case described in section 1(a)(2) of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.50-2006, SEC.8.
IC 31-17-5-5
Service of petition and summons
Whenever a petition is filed, a copy of the petition, together with a copy of a summons, shall be served upon the custodial and noncustodial parent or guardian of each child with whom visitation is sought in the same manner as service of summons in civil actions generally.
As added by P.L.1-1997, SEC.9.
IC 31-17-5-6
Decree
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.
As added by P.L.1-1997, SEC.9.
IC 31-17-5-7
Modification of order
The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.
As added by P.L.1-1997, SEC.9.
IC 31-17-5-8
Paternity proceedings; effect on visitation rights
(a) This section applies to a child born out of wedlock.
(b) Visitation rights provided for in section 1 or 10 of this chapter survive the establishment of paternity of a child by a court proceeding other than an adoption proceeding.
As added by P.L.1-1997, SEC.9.
IC 31-17-5-9
Adoption; effect on visitation rights
Visitation rights provided for in section 1 or 10 of this chapter survive the adoption of the child by any of the following:
(1) A stepparent.
(2) A person who is biologically related to the child as:
(A) a grandparent;
(B) a sibling;
(C) an aunt;
(D) an uncle;
(E) a niece; or
(F) a nephew.
As added by P.L.1-1997, SEC.9.
IC 31-17-5-10
Marriage of child's parents dissolved in another state; right to seek visitation
If the marriage of the child's parents has been dissolved in another state, the child's maternal or paternal grandparent may seek visitation rights if:
(1) the custody decree entered in the action for dissolution of marriage does not bind the grandparent under IC 31-21-3-1 (or IC 31-17-3-12 before its repeal); and
(2) an Indiana court would have jurisdiction under IC 31-21-5-1 (or IC 31-17-3-3 before its repeal), IC 31-21-5-2, or IC 31-21-5-3 (or IC 31-17-3-14 before its repeal) to grant visitation rights to the grandparent in a modification decree.
As added by P.L.1-1997, SEC.9. Amended by P.L.138-2007, SEC.35.
Now let's discuss the law above. I am going to assume that there is just one grandchild in this. First, the law starts by saying who may seek [grandparent] visitation. The child's parent (not both - just one; either the mom or the dad) must be deceased. If they are, you can file for grandparent visitation. Or if the mom and dad were married and the marriage was legally dissolved in Indiana, you can file for grandparent visitation. Or if mom and dad were not married at the time of the child's birth (making the child born out of wedlock), you can file for grandparent visitation. Those are the only three entries into the legal process. But if the child was born into wedlock (mom and dad were married to each other at the time the child was born) and if mom and dad are separated, then under those circumstances, you have zero grandparent rights. See how the game is played?
There is the problem if the child was born out of wedlock (again meaning the couple was not married when the child was born) and the father of the child has not established paternity. My only advise in that instance is to get the mother to file a paternity action if the father will not admit paternity voluntarily. Until paternity is established, the law plainly says there are no grandparent rights.
Now we come to a second critical point: the best interests of the child. That phrase "best interest of the child" will dictate how a judge should (and must) rule. The court will conduct a hearing and will determine if the grandparent (you) has made a righteous attempt to see the child. This means a long standing attempt, not just one you made once. The court might interview the child in the judge's office. Opposing counsel and/or your attorney may attend.
IC (which stands for "Indiana Code") 31-17-5-3 covers the technicalities of the petition your attorney will prepare. IC 31-17-5-4 tells the attorney where to file the Petition while IC 31-17-5-5 through IC 31-17-5-7 covers more technicalities your attorney must address. IC 31-17-5-8 and IC 31-17-5-9 covers adoption. IC 31-17-5-10 explains that if the marriage of your grandchild's parents was not dissolved in Indiana, the court can still rule on the issue if certain conditions are met.
That's the sense of the law in effect in Indiana (and most other places). Can you be permitted to visit your grandchild? Yes. Is it an easy case? No. We are going to have to PROVE you made multiple attempts to see the child. You do not have the rights of a PARENT to visit the child. You have lesser rights.
Now let's address one other matter and you can take this for whatever it's worth. The dispute between you and the child's parent who is prohibiting you from seeing the child simply must be patched up. You will have to sweet talk the parent, invite them out to a restaurant (where you pay the bill), etc. This is far cheaper than getting a lawyer involved. Let bygones be bygones, for the child's sake. Kiss and make up. Or else be prepared for some payments to a lawyer.
This page was last updated March 22, 2009
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