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Grandparent Visitation

I've represented both sides in grandparent visitation cases. Each side believes they know what's best for the child, who is caught in the middle, and sometimes it is true. However, this is a very sensitive and delicate topic as the entire family unit is involved, three generations are effected when grandparents pursue this course of legal action.

Indiana Code 31-17-5 states a grandparent can file for grandparent visitation when:

1. the child's parent is deceased*;

2. the child's parents' marriage has been dissolved by an Indiana Court; or

3. the child was born out-of-wedlock (however, paternity must be established prior to a grandparent filing and a grandparent cannot establish the paternity)

* In March 2019, the Indiana Court of Appeals issued a opinion in The Matter of the Paternity of E.H. that it did not believe the Indiana legislature intended the Grandparent Visitation Act ("GVA") to apply to grandparents seeking visitation over the objection of a custodial parent who are the seeking grandparents own child. (i.e. if grandparents are seeking visitation over the objection of their own child, who is the parent to the grandchild, then they cannot seek visitation.)

If a grandparent is eligible to seek visitation, they must file a petition for grandparent visitation in the county the child resides or the Court which has jurisdiction over a dissolution case involving the child's parents. Once a petition for grandparent visitation has been filed, the Court may order mediation prior to a final hearing.

I cannot say how much time a grandparent will be awarded, but a general rule of thumb is, the Court cannot award Indiana Parenting Time Guidelines to a grandparent (i.e. every other weekend and holidays). However, there are exceptions to this rule on a case by case basis. The Court will consider the following when determining if grandparent visitation should be granted:

1. how much involvement the grandparent had in their grandchild's life;

2. the reason(s) a parent is not allowing the grandparent the opportunity to visit with the child;

3. if the grandparent is getting visitation, but they feel like it is not enough;

4. if it is in the child's best interest to have visitation with a grandparent;

5. and a number of other considerations depending on each case

Courts are careful when deciding if they should grant a petition for grandparent visitation. Courts do not want to interfere with the right of a parent to raise their child as they fit. However, if the court finds a parent is unreasonably withholding visitation, it will consider granting grandparent visitation with the grandchild. Having effective legal counsel is a great benefit in obtaining grandparent visitation.

The best advice I can give to grandparents and parents is to work together, discuss this matter, try to find common ground and reach an agreement. Always do this first, as you do not want to have the legal system involved in your lives and making decisions as to a child when most of the time parties can reasonably agree on a solution. This is a very delicate family matter and each party should consider the other's feelings on the situation, but most importantly should consider how it will effect the child. Grandparents can be a wonderful source of love, support, and fun for a child while they grow and mature. However, if an out of court agreement cannot be reached, the grandparent does have an option to file a petition and let the Courts make a decision.


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