Unfortunately, when a couple divorces, all members of the family must adjust to a new dynamic. Despite provisions for parenting time and visitation rights in various statutes, a divorce may disrupt the relationship between children and parents and limit the time they get to spend together. However, with the incidence of divorce being high, and with step-parents playing an ever-increasing role in children’s lives, a step-parent may wonder what rights they may have after they separate from a biological parent of a child. This blog explores some recent Indiana cases on this subject.
An important concept: the difference between custody, parenting time, and visitation. The concepts of custody, parenting time, and visitation may often be confused, so as a preliminary matter, it is important to learn what each of these terms actually means on a practical level under Indiana law. Custody over a child has two parts: legal and physical. Legal custody means who makes decisions for a child until the child reaches adulthood with respect to important upbringing issues – primarily religion, education, and medical care. Physical custody refers to where a child lives. Often, when a married couple who are the parents of a child divorce, one parent will receive primary physical custody, and the other will get parenting time which usually includes overnight stays.1 Consequently, physical custody and parenting time go together – when one parent gets primary custody, the other has parenting time.2 Visitation, contrarily, is simply a time when an unrelated third party spends time with a child.3
Only parents may be awarded custody and/or parenting time,4 but step-parents may seek visitation. It is well established that stepparents have standing to seek visitation rights and that a trial court has authority to grant the same.5 A stepparent relationship is a strong indicator that a custodial and parental relationship exists, and by recognizing a right to visitation in nonparent third parties such as stepparents, the Indiana Court of Appeals has acknowledged that a child's interest in maintaining relationships with those who have acted in a parental capacity will sometimes trump a natural parent's right to direct the child's upbringing.6 The Indiana Supreme Court has recognized that a stepparent may be granted visitation upon establishing the existence of a custodial and parental relationship and that visitation is in the child's best interests.7
What factors will a court consider if I’m a step-parent and want visitation rights? Trial court judges have discretion in this area, so this question can best be answered by examining a couple of recent cases that went to the Indiana Court of Appeals. Here are the key facts of these cases:
Richardson v. Richardson, 34 N.E.3d 696 (Ind. Ct. App. 2015): Wife gave birth to a daughter, L.O., in 2003, and the father was Robert Osborne. Wife then had a child with Joshua Richardson, and Joshua and Wife were married in 2008. Joshua then filed for a divorce in 2013. In 2014, a trial court held a final hearing and found that Joshua had provided L.O with financial, emotional, physical, and educational support and was a de facto custodian and the male adult role model in L.O.’s life. Consequently, the trial court ordered Wife to “assure that [L.O.] spends time with [Joshua] on the weekends that [the child fathered by Joshua] is also with [Joshua].” The trial court also ordered the L.O. and her half-brother “spend holidays together as much as possible” (meaning that L.O. would spend half of the holidays with Joshua since her half-brother would be doing so). Wife appealed. The Indiana Court of Appeals reasoned that the record at trial indicated that Joshua came into L.O.’s life when she was two, that she was the “only father that she has ever known,” that she always called him “dad” or “daddy,” and that there was “no question that L.O. has an interest in maintaining a relationship” with Joshua. The Court of Appeals held that the evidence supported the trial court’s finding that visitation with Joshua was in L.O.’s best interests.
In re: the Paternity of A.M. (Miller v. Hawthorne), 97 N.E.3d 313 (Ind. Ct. App. 2018): In this case, the Indiana Court of Appeals affirmed a trial court ruling that Stepfather was entitled to stepparent visitation because he had a custodial and parental relationship with ex-wife’s (Brandi Miller) twins and because visitation was in the twins’ best interests. The twins were born to Brandi and their father, Travis Miller. Step-father, Brock Hawthorne, and Brandi were married in 2014, and a divorce petition was filed in 2016. At the trial court level, a guardian ad litem8 testified that the twins wanted to live with Brock, and the twins had actually thought that Brock was their biological father until Brandi told them otherwise when they were nine years old. From June 2007 to June 2016, Brock took care of the twins while Brandi was at work by cooking meals, putting them to bed, helping with homework, and spending time with them. On appeal, the Indiana Court of appeals noted that a biological parent may not impose an absolute veto on any non-parent visitation. Rather, if a third party establishes the existence of a custodial and parental relationship and that visitation is in the children’s best interest, then a court has full discretion to order visitation time.
The key take-away from these cases is that it is possible to obtain step-parent visitation rights if the preservation of the step-parent step-child relationship is in the child’s best interest after the marriage terminates. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana and understand the issues surrounding third parties, including step-parents, grandparents, and others, who may wish to seek visitation. This blog post is written by Ciyou & Dixon, P.C. attorneys and is not intended as specific legal advice or a solicitation for services. It is an advertisement.
- The typical parenting time for a non-primary custodial parent is every other weekend plus one night per week. Holidays are typically divided, and if a child is of school age, then usually the non-custodial parent gets one-half of the child’s summer vacation. See Ind. Parenting Time Guidelines, § II, Part D.
- This can deviate greatly and is just used to illustrate these concepts.
- Because the term “step-parent” is essentially a construct of marriage, when one ceases being married to a parent, they are no longer a “step-parent.” For clarification, but beyond this blog, there is grandparent “visitation.”
- This is notwithstanding concepts like de facto custody, third-party custody, guardianships, etc. Those concepts are outside the scope of this blog post.
- In re: I.E., 997 N.E.2d 358, 366 (Ind. Ct. App. 2013).
- A.C. v. N.J., 1 N.E.3d 685, 697 (Ind. Ct. App. 2013).
- Worrell v. Elkhart Cnty. Office of Family & Children, 704 N.E.2d 1027, 2028 (Ind. 1998).
- A representative that may be assigned to represent the interests of a child or children in a dispute involving them (custody, parenting time, guardianship, etc.).