By: Amanda E. Glowacki
People watching Bravo’s spin-off series featuring Real Housewife of Atlanta Kim Zolciak this past season saw firsthand that it is possible for grandparents to petition a court for visitation with their grandchildren. During the show’s first season, Kim was shocked to be served with a petition from her parents requesting that the Court enter an order for grandparent visitation because Kim was estranged from her parents since her wedding to NFL player Kroy Biermann. For Kim, and many others served with similar petitions, it can be shocking to be told that grandparents may be able to demand visitation with their grandchildren. While the roots of such visitation used to be grounded in third party custody petitions, i.e. people other than the child’s parents, many states, including Indiana, have specific provisions regarding the grandparent visitation.
In 2000, the Supreme Court weighed in on the issue as it pertained to a Washington state law. The case of, Troxel v. Granville, 530 U.S. 57 (2000), involved a vastly different fact pattern than what was portrayed on Zolciak’s show in that the petitioning grandparents were paternal and requesting visitation rights. The children’s mother, who had cut down the amount of visitation in the wake of their father’s death, objected. The issue before the Supreme Court was whether Washington’s law unconstitutionally infringed on a parent’s fundamental right to rear his/her children if it permitted any person to petition for visitation rights at any time and allowed courts to grant such rights whenever the visitation was in the child’s best interest. The Court decided to strike down the law because the “custody, care and nurture of the child reside first in the parents” and should not be “hinder[ed]” by the state. However, the Supreme Court also acknowledged that grandparents and other family members are increasingly relied upon to assist in parental duties and may deserve some protection or deference when requesting visitation. In the end, the decision created a need for states to tailor their domestic relations laws if they wanted to create specific actions for grandparent rights.
In Indiana there is no common law right for grandparents to seek visitation. The Grandparent Visitation Act is the exclusive method for grandparents to seek visitation. Indiana’s codified version of the Grandparent Visitation Act is I.C. 31-17-5. The two key elements of the code are its provisions on standing (whether or not a person has the ability to file the petition) and the best interest test that a court will apply in deciding whether to grant visitation. Both of these elements have been interpreted and examined by the Indiana Court of Appeals and the Indiana Supreme Court. Because the analysis is often fact specific, I encourage any party interested in this topic to consult with an experienced family law attorney on how their situation would apply under Indiana law.
If you have questions about grandparent rights in Indiana or other family law matters, please contact Harden Jackson Law.
Remember, these suggestions are not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.
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