In 1982 the Indiana legislature enacted the Grandparent Visitation Act. Prior to its enactment, a grandparent in Indiana had no special, legal right to visitation with a grandchild and therefore had few options when visitation was significantly restricted or completely denied. In light of a recent Indiana Supreme Court opinion reiterating the scope and requirements of the Grandparent Visitation Act, a review of grandparent visitation orders is appropriate.
Indiana Grandparent Visitation Act
In Indiana, the Grandparent Visitation Act is the exclusive basis on which a grandparent may seek visitation of a grandchild. The Act describes three situations in which a grandparent may request a visitation order: (1) the grandchild's parents have died; (2) the grandchild's parents have divorced; or (3) the grandchild was born out of wedlock and paternity has been established.
Parents have a fundamental right to direct and control the upbringing, education and religious training of their children. This right must not be substantially infringed, and for that reason, the Grandparent Visitation Act only contemplates occasional, temporary visitation.
Balancing parental rights and the best interests of the child
The terms of a grandparent visitation order must balance the parents' rights and the child's best interests in a way that does not substantially impinge on the parents' fundamental right to direct and control the raising of their child. In balancing a parent's rights and the best interests of a child, the Act requires the court to specifically consider the following:
- Is the parent's decision to deny visitation to the grandparent NOT in the best interests of the child? Because the law presumes that a parent's decision with respect to grandparent visitation is in the best interests of the child, it is the grandparent's not the parent's burden to prove by testimony and evidence that the parent's decision to deny visitation is not in the best interests of the child.
- Did the grandparent meet the burden of proof that deny visitation is not in the best interests of the grandchild? Because the right to make decisions about with whom a child may spend time is within the scope of a parent's fundamental right to raise a child, a heightened standard of proof is applicable to situations in which the court is asked to act contrary to a parent's wishes.
- How much visitation with the grandparent is the parent willing to agree to? If the parent is willing to agree to some level of visitation, the question before the court is only how much visitation is appropriate. However, if the parent is not willing to agree to any level of visitation, the court must decide whether to intervene at all. In situations where the parent has denied visitation completely, the court will recognize the serious consequences of its decision not to intervene - the elimination of any relationship with the grandparents - and consider how the loss of that relationship will likely affect the child when making its decision.
- Has the grandparent presented evidence that visitation is in the best interests of the grandchild? In addition to the burden of proving that the parent's desire to deny or restrict visitation is not in the best interests of the child, a grandparent has the further burden of proving that court-ordered visitation is in the grandchild's best interests.
Speak to a family law attorney
To learn more about grandparent visitation orders in Indiana, schedule a consultation with a lawyer in your area who is experienced in child custody and visitation matters.