Question: Can Grandparents Petition for Grandparent Visitation?
Answer: Yes, But 4 Factors Must Be Weighed In Determining Whether To Grant Visitation.
In either granting or denying a petition for grandparent visitation, the trial court is obligated to issue specific findings and conclusions in its decree. The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court. As such, the 14th Amendment provides heightened protection against government interference” in the right of parents to direct the upbringing of their children. In contrast, because grandparents do not have the legal rights or obligations of parents, they do not possess a constitutional liberty interest in visitation with their grandchildren. Rather, decisions about the level of grandparent involvement in the lives of their grandchildren have historically been a matter of parental discretion. Nevertheless, states have recognized that children should have the opportunity to benefit from relationships with statutorily specified persons—for example, their grandparents. As a result, the Indiana General Assembly enacted the Grandparent Visitation Act, which provides that there are limited circumstances under which a child’s grandparent may seek visitation rights. A trial court may grant grandparent visitation rights upon a determination that it would be in the best interests of the child. In its evaluation of a child’s best interests, a trial court may consider whether a grandparent has had or has attempted to have meaningful contact with the child. However, this consideration is not the touchstone for determining the child’s best interests. Because a child’s best interests do not necessarily override the fundamental constitutional right of natural parents to direct their children’s upbringing without undue governmental interference, our courts have endeavored to strike a balance between parental rights and children’s interests.” To this end, our court has identified four factors that a trial court must consider in its decree granting or denying an award of grandparent visitation:
(1) the presumption that a fit parent acts in his or her child’s best interests;
(2) the special weight that must be given to a fit parent’s decision to deny or limit visitation;
(3) whether the grandparent has established that visitation is in the child’s best interests; and
(4) whether the parent has denied visitation or has simply limited visitation.
In evaluating the first and second Factors, the trial court has the obligation to presume that Mother acted in the child’s best interests when deciding to discontinue a child’s visits with grandparents. Acting under this presumption, courts must give special weight to a parent’s decision to deny or limit visitation. However, the presumption favoring the parent is a rebuttable one. Grandparents bear the burden of rebutting the presumption that mother’s decision to deny visitation was made in the child’s best interests which is a significant burden of proof grandparents must carry to override parental decisions. The trial court is charged with hearing and weighing the evidence and determining whether mother’s justification for terminating grandparents’ visitation is valid.
Finally, the Indiana courts have previously found that grandparents are not automatically entitled to have the type of visitation they want and the courts cannot infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made. The trial court must give some weight to the fact that a parent has agreed to some visitation. This factor is significant because once a parent agrees to some visitation, the dispute is no longer over whether the grandparent will have any access to the child, but instead over how often and how much visitation will occur. Where a parent has denied all visitation, the grandparent must pursue the right to have a relationship with the child. Thus, the case for judicial intervention is strengthened. However, where there is merely a disagreement between parent and grandparent over how much access is appropriate, judicial intervention is more likely to infringe upon the parent’s fundamental right. 14 N.E.3d 753