Without a court order a grandparent does not have a right to visitation with their grandchild. In other words, unless allowed by a parent, a grandparent cannot demand certain visitation with a grandchild. There are, however, specific circumstances under which a grandparent has the right to seek visitation.
A recent U.S. Supreme Court decision ruled that just any third-party may not petition for visitation because it unconstitutionally infringes upon the rights of parents1. The Court specifically stated that “fit parents” are presumed to act in their children’s best interests and the state should not “inject itself into the private realm of the family” to question the decisions of those parents. This case was considered a huge blow to grandparent’s rights. Many states, including Indiana, have revised their statutes to address this issue.
In Indiana, a grandparent may seek visitation if a parent of the child is deceased, divorced, or born out of wedlock. If a child is born out of wedlock, the paternal grandparents may not seek visitation unless a paternity order has been entered with the court2. In any case, grandparents suing for visitation must overcome a presumption that fit parents act in the best interests of their children and must produce evidence that the visitation is in the best interest of the child.
There are several key principles to consider in striking a balance between a parent’s right to raise their own children as they see fit and the child’s best interests. The Court of Appeals has broken these principles down into four factors and has suggested that an award of grandparent-visitation should address each of these3. First, there is a presumption that a fit parent’s decision about grandparent visitation is in the child's best interests. This puts a heavy burden on the grandparents. Second, “special weight” must be given to a fit parent’s decision regarding grandparent visitation. This requirement effectively establishes a heightened standard of proof by which a grandparent must rebut the presumption. Third, the court will give “some weight” to whether a parent has agreed to some visitation or denied it entirely. Grandparents have a greater chance of being awarded visitation if the parents are denying it entirely. Finally, courts consider whether the petitioning grandparent has proven that visitation is in the child’s best interests, despite the parent’s wishes.
Finally, even if awarded visitation, a grandparent cannot expect to be granted visitation that gives them substantial time. The Indiana Supreme Court recently recognized “that although the amount of visitation is left to the sound discretion of the trial court, “[t]he Grandparent Visitation Act contemplates only ‘occasional, temporary visitation’ that does not substantially infringe on a parent's fundamental right ‘to control the upbringing, education, and religious training of their children4.’ ”
In short, it is more difficult to obtain grandparent visitation that one may think. Grandparents have a heavy burden of proving that a parent is not acting in the best interest of their child by denying them visitation. Even if a grandparent is successful in proving it is in the best interest of the child to receive visitation, that visitation will likely be limited rather than liberal.
We hope that this blog post has been helpful in understanding Grandparent’s rights to visitation. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Bryan Ciyou.