Family Law: Grandparents' Rights

In re Visitation of M.L.B. (Ind. March 7, 2013)

In this opinion, the Supreme Court addressed the tension that often arises between grandparents’ rights to see their grandchildren and parents’ rights regarding their children. Justice Rucker wrote in the opinion’s opening paragraph:

A child’s relationship with his grandparents is important and can deserve protection under the Grandparent Visitation Act. But grandparent-visitation orders necessarily impinge, to some degree, on a parent’s constitutionally protected rights.

Based on these considerations, the Supreme Court held that when granting grandparents visitation rights, trial courts must: 1) include findings that address four factors balancing parents’ rights and the child’s best interests, and 2) limit the visitation award to an amount that does not substantially infringe on parents’ rights to control the upbringing of their children.

The four factors a trial court must address are:

(1) a presumption that a fit parent’s decision about grandparent visitation is in the child’s best interests (thus placing the burden of proof on the petitioning grandparents);

(2) the “special weight” that must, therefore, be given to a fit parent’s decision regarding nonparental visitation (thus establishing a heightened standard of proof by which a grandparent must rebut the presumption);

(3) “some weight” given to whether a parent has agreed to some visitation or denied it entirely (since a denial means the very existence of a child-grandparent relationship is at stake, while the question otherwise is merely how much visitation is appropriate); and

(4) whether the petitioning grandparent has established that visitation is in the child’s best interests.

These factors come from the prior Court of Appeals decision, McCune v. Frey, 783 N.E.2d 752, 757–59 (Ind. Ct. App. 2003), which in turn relied on the United States Supreme Court decision of Troxel v. Granville, 530 U.S. 57 (2000).

The Court of Appeals decision in this case found that the trial court's order, although it did not address all four factors specifically, did so by implication. Judge Barnes dissented, disagreeing with the majority's position that the trial court's failure to specifically address the factors was merely “form over substance.” The Supreme Court agreed with Judge Barnes and held that a trial court’s failure to expressly address all four factors will inherently render an order on grandparent visitation unconstitutional.

The Supreme Court also discussed the factors and determined that the trial court had awarded an inappropriate amount of grandparent time. The Supreme Court found it particularly important that the trial court: 1) awarded more time than the mother had voluntarily allowed the grandparents to have before the court's involvement; and 2) refused to impose as a condition on visitation that the biological father (who had recently lost his parental rights) not be present. The grandparents and mother had voluntarily imposed this condition for years. The Court found that the trial court’s order risks exactly what Troxel forbids: “infring[ing] on the fundamental right of parents to make child-rearing decisions” by substituting a court’s own judgment of what would be “a ‘better’ decision.”

The Supreme Court remanded the case to the trial court with instructions to issue more complete findings and to curtail the amount of visitation awarded. The Supreme Court gave some guidance to the trial court, but did not impose bright-line rules for what the order must include:

Obviously, it will not be enough to merely recite those factors, unless there is also analysis of how the evidence as weighed by the trial court fits within that framework. Conversely, we also do not decide the extent to which a trial court’s findings that do not mention these factors by name might nevertheless sufficiently address them in substance. For today, it is enough to observe that this particular order wholly fails to address the first two factors, and is unclear at best as to its assessment of the third; and that each of those defects is of constitutional dimension.

This decision is important for family law practitioners who currently are dealing with a grandparent visitation issue or who represent a party who was recently affected by a grandparent visitation order. As this opinion indicates, if a trial court’s order does not specifically address all four Frey factors, the order is, on its face, improper and subject to remand on appeal. Going forward, both lawyers and trial courts should make sure that the trial court's orders on grandparent visitation issues specifically address all four factors.