One of the harshest consequences of divorce is the likely loss of contact with family and friends that often happens once each spouse establishes a separate household. Some of this change occurs organically, but some of it can be intentional, especially if the connection is directly associated with the former spouse. Children may have a hard time understanding why certain people no longer visit or call, which is particularly likely if the absent person was held in special regard by the child. Certain relationships in a child’s life leave lasting impressions, and grandparents fall into this category for many individuals. Children who are cut off from this source of comfort, although based on valid reasons, are still likely to struggle to adapt, and suffer some degree of emotional distress.

Indiana lawmakers hold the grandparent/grandchild relationship in high regard and want to encourage the continuance of this relationship following divorce for the sake of the child. A recent example of the State’s interest in preserving the grandparent/grandchild relationship is seen in the passage of a new law that will grant grandparents the right to petition for visitation following an adoption. Indiana already has a law on grandparent’s visitation rights after divorce –  a situation a child is much more likely to experience than adoption. However, requesting visitation does not mean a court will freely grant it. A parent’s right to decide who can see the child is still given deference, and a compelling reason to override this fundamental right must be presented. An overview of when grandparents may petition for visitation, and how courts evaluate these requests, will follow below.

When Grandparents May Request Visitation

The State does not want to unnecessarily intrude on a parent’s right to control the upbringing of his or her child. As a consequence, grandparents can only petition for visitation if specified events occur that could result in a parent unfairly denying contact. These events include:

• One of the child’s parents is deceased;
• The child’s parents divorced in Indiana; or
• The child was born out of wedlock, but if the paternal grandparents are petitioning for visitation, the father’s paternity must first be established.

Court Evaluation of Visitation Requests

When a court evaluates a petition for visitation by a grandparent, the judge is tasked with balancing the rights of the parent and the best interests of the child. The best interests of the child control all child-related family law matters, and the law presumes the parent’s decision to deny contact with the grandparent is in the child’s best interests. Thus, a grandparent who asks for visitation has the burden of presenting arguments and evidence as to why this decision is harming the child. Further, particular scrutiny is applied to the evidence presented in favor of visitation because of the parental rights involved, so the weight is against granting visitation. To assist with this determination, a court will specifically look at whether a grandparent has or attempted to have a meaningful relationship with the child, and may also involve interviewing the child in chambers and outside the presence of the parent, though attorneys may be present.

The amount of visitation awarded typically depends upon the level of cooperation by the child’s parent. If the parent is willing to consent to some visitation, the court need only decide what is reasonable, which varies by case but would rarely be the weekly visits a parent enjoys when custody is shared. If the parent is unwilling to concede to any visitation, the court has the harder task of deciding how much the loss of this relationship will affect the child, and if that loss is significant enough to override the parent’s right to control the child’s upbringing.

Talk to a Family Law Attorney

Sharing your child with an ex-spouse or former in-law is likely to produce uncomfortable situations at some point that may require a legal response to resolve. If you have questions or concerns about parenting plan guidelines or visitation, contact a family law attorney to learn how the law applies to your situation. Attorney Christopher L. Arrington understands how disruptive issues related to divorce and child custody can be, and will work to get you the outcome you want. If live in Danville, Brownsburg, Avon, or the surrounding area, contact him to schedule an appointment.