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Grandparent Visitation - When is it appropriate, and what are the limits on how much

Grandparent Visitation: When is it appropriate, and what are the limits on how much?

Traditionally, Grandparents had no special common law right to visitation with their grandchildren. However, in the past few decades, many states have enacted legislation which allows grandparents to seek a court order for visitation with their grandchildren. The Indiana legislature enacted Indiana Code § 31-17-5 allowing for grandparents to seek visitation, in certain limited circumstances, including if one of the child’s parents is deceased, the parents are divorced, or the child was born out of wedlock, also known as the Grandparent Visitation Act (GVA).1

Following the enactment of the GVA, and other similar statutes in other states, there was some confusion as to how these statutes that gave the courts a right to intervene and order grandparent visitation related to the constitutional rights of the parents in rearing their children. This issue was addressed by the United States Supreme Court in Troxel v. Granville.2 In this case, the Supreme Court stated that there is a fundamental right of a natural parent, protected by the constitution, to direct their children’s upbringing without undue government interference.

The Troxel decision sought to balance the best interests of the child in maintaining, or having, a relationship with grandparents, against the parents’ constitutional rights, citing several key principals that a court should address before issuing an order for grandparent visitation. Further expanding on the Troxel decision, the Indiana Court of Appeals distilled the Troxel principals into four keep factors which a trial court must address:

1) There is a presumption that a fit parent’s decision regarding grandparent visitation time is in the child’s best interests, and thus, the grandparent seeking a court order for visitation carries the burden to prove that visitation (which is presumably not allowed or limited by the parent, otherwise a grandparent would likely not seek court intervention) is in the child’s best interests.

2) A court must give special consideration to the fit parent’s decisions regarding grandparent visitation.

3) A court must give some weight to facts showing that a parent has provided for some visitation with the grandparent in the past, or outright denied any time. Thus, outright denial by a parent would inherently place the grandparent / grandchild relationship at stake, vs. limited visitation merely raises the question of how much time is appropriate for visitation.

4) Whether the grandparent who is petitioning for visitation has established, through evidence, that visitation is in the child’s best interests.3

5) Finally, the trial court must address these four factors specifically when issuing its order in “findings and conclusions.”4

In a recently decided Indiana Supreme Court case, In Re the Visitation of M.L.B., the Supreme Court addressed the very issue of each of these four factors, and the trial court’s mandatory requirement to address same in its findings of fact, and conclusions of law, before a trial court may issue an order for grandparent visitation, and consider how much visitation is appropriate.5

In M.L.B. the child was born to parents out of wedlock, thereby meeting one of the criteria necessary to apply Indiana Code § 31-17-5, but Father was largely uninvolved in the child’s life. However, Mother permitted regular visits with the child and Father’s extended family, namely the paternal grandfather, which had been consistent since soon after the child was born. After about six years Mother had married, and step-father was seeking to adopt the child, thereby terminating Father’s parental rights, and only at that time did Mother cease permitting grandfather visits with the child, prompting grandfather to petition the court for visitation. The trial court granted grandfather visitation of one weekend per month, an extended ten day vacation once a year, and visits during holidays.

Mother appealed, arguing that the trial court’s order impinged upon her fundamental parental rights, protected by the constitution. The Court of Appeals upheld the trial court’s order. Mother then sought transfer to the Indiana Supreme Court, which accepted jurisdiction of the case.

The Supreme Court considered that Mother’s recent denial of all grandparent visitation was certainly relevant, and possibly influenced the trial court to award grandfather visitation. However, the trial court failed to consider the past pattern Mother had established when she did permit visitation, and the trial court overstepped its bounds, without issuing findings as to why, by ordering visitation in excess of the past pattern Mother had established was appropriate. Therefore, the Supreme Court remanded the case back the trial court for specific findings on the four above noted factors, which a trial court must consider.

We hope that this blog post has been helpful in giving you some insight into the grandparent visitation laws in Indiana. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.


  1. Ind. Code §31-17-5 et. seq.
  2. Troxel v. Granville, 530 U.S. 57 (2000)
  3. McCune v. Frey, 783 N.E.2d 752, 757-59 (Ind.Ct.App.2003)
  4. In Re K.I, 903 N.E.2d 453, 462 (Ind.2009)
  5. In Re the Visitation of M.L.B., --- N.E.2d ---- (Ind. 2013)
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Based in Indianapolis and founded in 1995, Ciyou & Dixon, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Ciyou & Dixon will guide you every step of the way. The family law attorneys at Ciyou & Dixon, P.C. will help you precisely identify your objectives and the means to reach your desired result. In addition, this practice focus is augmented by the firm's other three core areas, namely appellate advocacy, civil practice, and firearms law. Life is uncertain. Be certain of your counselSM.

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