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Grandparent’s Rights to Child Visitation and Custody

The decision of couples to divorce or end a relationship that involves minor children affects family members far beyond the core unit of parent and child. Grandparents are especially impacted by this decision, since it is common for grandparents and grandchildren to have close relationships.

A recent story out of Goshen highlights the plight of grandparents seeking visitation with grandchildren that do not reside with the custodial parent. The parents of a woman barred from contact with her daughter following a conviction for serious injury to another child that eventually died petitioned for visitation rights with their living grandchild. The court will typically weigh the benefit of contact with the child against the possible harm such contact could cause in order to determine if visitation is advisable. While Indiana takes a fairly expansive approach in granting grandparents visitation, the same cannot said for custody issues. Grandparents may not know they have legal options when their child divorces, and, as a result, may feel helpless if contact with their grandchild is denied. In an effort to inform grandparents about their rights in divorce situations, a review of visitation and custody rights in Indiana will be discussed below.

Grandparent Visitation Rights

Indiana law permits courts to grant visitation to grandparents under one of three circumstances:

  • The child’s parent is deceased
  • The child’s parents were granted a divorce in Indiana
  • In the case of paternal grandparents, the child was born out of wedlock and the father established paternity of the child.

In order to exercise this right, grandparents must file a petition in court requesting visitation indicating which grandchildren they want to contact, why they need the court to intervene to maintain contact, and the type of relationship they have with the grandchild. The court will hold a hearing in which the grandparents will have an opportunity to further explain the extent of their relationship with the child and the circumstances that blocked them from seeing the child.

The driving factor in the court’s decision will be what is in the best interest of the child. The court will weigh the quality of the effort by the grandparents to have contact with the child and may conduct an interview with the child in chambers to ascertain the child’s perspective on the relationship with the grandparents. Attorneys may be permitted to attend the interview and record it.

Additionally, if the child is later adopted by a stepparent or other family member biologically related to the child, the visitation order is still valid. Finally, if the marriage was dissolved in another state, grandparents can still petition for visitation as long as an Indiana court has jurisdiction and a previous order did not prohibit contact by the grandparents.    

Grandparent Temporary and Permanent Custody Rights  

Indiana does not have a law specifically authorizing the appointment of a grandparent as guardian, and the preference, under social policy considerations, is to place children with the parents whenever possible. However, there are a few circumstances in which a court may place the child with the grandparent on a temporary or permanent basis. First, a court may grant an emergency temporary order awarding custody to someone other than the non-custodial parent in situations where the custodial parent or guardian dies or cannot care for the child. In the petition, the person asking for temporary custody must relay the facts that warrant placement with them instead of the non-custodial parent. In a non-emergency temporary custody petition, the court may award temporary to a non-parent if the custodial parent dies and the non-custodial parent requires court-ordered supervision to visit the child or the court suspended the non-custodial parent’s parenting time privileges.

In custody proceedings, especially those involving permanent custody, there is a presumption in favor of parents retaining custody of their children. As a consequence, permanent custody will only be awarded to a non-parent if there is clear and convincing evidence it is in the child’s best interest.  If a grandparent becomes the “de facto custodian” due to the inability of the parents to care for the child themselves, the court looks more favorably on giving them full custody. Some of the factors the court will consider include the parent’s intent when they put the child under the de facto custodian’s care, the wishes of the custodian, and how well the custodian cared for the child.

Consult an Attorney

Grandparents have much to lose if they are cut off from interaction with their grandchildren following a divorce, and it is important to know one’s rights to best protect and preserve the relationship. Finding a reliable experienced attorney in family law matters can be difficult, but Attorney Christopher L. Arrington has the expertise and experience needed to best represent you. Contact him today for a confidential consultation.



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