Grandparents play an important role in many of our lives. Fortunately, the Indiana Legislature has recognized this importance and passed what is known as the Grandparent Visitation Act. The Grandparent Visitation Act gives grandparents the right to seek visitation, albeit, in limited and defined circumstances. Whether or not you can seek visitation of your grandchildren will depend on the specific facts of the case. In this blog, we provide a brief overview of the Grandparent Visitation Act and the circumstances that may give you the right to seek visitation.
One important thing to point out is that historically speaking, grandparents had no right to seek visitation, other than the general right as a third party may have to seek custody of a child they have cared for and raised.i This point was re-affirmed when the US Supreme Court found that parents have a fundamental right to parent their child.1 After this decision, our Supreme Court cautioned trial courts when granting grandparent visitation to be mindful “a grandparent-visitation order particularly implicates the danger of infringing on the fundamental right of parents to make child-rearing decisions simply because [a court] believes a ‘better’ decision could be made.”2 So, even though grandparents have the right to seek visitation, it is still sometimes difficult to obtain, and courts will not grant visitation simply because you are the grandparent.
The Grandparent Visitation Act can be found in Indiana Code section 31-17-5 et. al. Pursuant to the Act, there are three circumstances when a grandparent may seek visitation.3 First, a grandparent can seek visitation when the child’s parent is deceased. Now, it can’t be either of the parents, but instead, has to be the child of the grandparent. For example, maternal grandparents could not seek visitation because the father died. Instead, maternal grandparents could only seek visitation if the mother (their daughter) passed away. Second, the parents of the grandchild must be divorced. Third, and finally, is where the child was born out of wedlock. With this final scenario, paternity must be established in order for the paternal grandparents to seek visitation. For example, if the father was only alleged to be the father, this would not be enough for the paternal grandparents to seek visitation.
Grandparent visitation proceedings can be a trying time for individuals. These types of cases are extremely fact sensitive and involve complicated legal statutes that tend to lead to confusion for many. Not to mention, these are very personal and emotional matters for people. This is where the assistance of a skilled attorney can help grandparents analyze their options and assemble the evidence to prove this to the court. There is a high evidentiary burden, but one that can be met. Dixon & Moseley, P.C. advocates handle all types of grandparent visitation cases throughout the State. This blog is written for general informational purposes only. It is not legal advice or a solicitation for services. It is an advertisement.
i.) This blog does not cover de facto custodians, guardianships or adoptions. Grandparents who have raised their grandchildren may have this right, even if both parents are living. If that is the case, the can seek “custody” of their grandchildren.