Pursuant to Indiana Code 31-17-5-1, the court may grant visitation rights to grandparents if the court determines visitation rights are in the best interests of the child and:
- the child’s parent is deceased
- the marriage of the child’s parents has been dissolved in Indiana
- the child was born out of wedlock, and
- child’s father has already established paternity of the child.
The outcome in a court of law is rarely what the grandparents expected. And if the child’s parents are still alive and married, grandparents have no standing whatsoever to seek visitation with their grandchildren.
Notwithstanding the Indiana Grandparent’s Rights set forth above, the United States Supreme Court has ruled that the Fourteenth Amendment’s Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody and control of their children. Specifically, the Court stated that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel v. Granville, 530 U.S. 57, 120 S.Ct., 2054, 2060, 147 L.Ed2d 49 (2000).
In other words, grandparents will not be awarded additional visitation time with the child if the biological parent is “fit” and has decided it is in the child’s best interests to limit the amount of time the child spends with the grandparent.
Unfortunately, the consequences of alleging that the parent is unfit are so great, and the burden of proof so high, that many grandparents wisely choose not to sue for grandparent’s rights. And those who DO, frequently burn bridges that can’t be rebuilt.
A MEDIATOR’S OPINION
There are things grandparents can do to avoid conflicts with the child’s parents and it is imperative that these things occur while the parent’s marriage is still intact. By understanding and acknowledging the proper role of a grandparent to a grandchild, most grandparents will maintain the relationship they want with their grandchildren in the event a marriage is dissolved by either death or divorce. Here are a few suggestions:
- While the marriage is still intact, offer to keep the children so the parents can have a date night every week. Pick them up for dinner and keep them overnight!
- Don’t “take sides” when a grandchild is mad at his or her parents.
- Don’t “take sides” when the parents are mad at each other.
- Don’t buy things for the grandchildren that their parents said they couldn’t have.
- If the parents are heading for divorce, let them both know you will always love them. Do not take sides. Find the right words that keep you neutral, such as “I understand how you must feel” or “I’m so sorry you are going through this.” It will be important to not discount their feelings during this difficult time, but you don’t have to adopt those feelings for yourself. It is not disloyal to preserve your relationship with your own child as well as your son or daughter-in-law! THEY ARE BOTH KEY to having a future relationship with your grandchildren.
- Don’t feel that you are being “used” when the parents only let you have the kids when it is convenient for them. Both parents will have less time with their children once the parents separate, so understand that your time is likely to be reduced as well – at least for a while.Be prepared to lose some grandparent visitation when your son or daughter-in-law remarry after the death of your child. That new step-parent may be threatened by your closeness to the children and may believe you are comparing him or her to the parent that died. This is a difficult time for everyone involved and especially for the grandparent who lost a child and who may have stepped in as a substitute parent for a number of months or years. You can prevent this loss by opening your heart to the new step-parent.
The key to having an ongoing relationship with your grandchildren is to maintain and nourish your relationship with both of their parents, to value the decisions they make as parents, and to value the importance of subsequent spouses.
Unfortunately, grandparents are at the mercy of the attorneys they interview and can be bilked out of many thousands of dollars simply because they didn’t ask the “best case” “worst case” question. Also – ask your attorney to explain what the United States Supreme Court had to say about grandparent visitation. If he or she doesn’t know the answer, find another attorney. Or hire the attorney for the sole purpose of researching this area of Indiana law and ask for a written recommendation before deciding how to proceed. And, oh yeah – be sure to ask what your attorney fees will be if the case isn’t settled out of court.
The Remedy – A Mediator’s Opinion
CONSIDER THE PRO-SE MEDIATION SERVICES OFFERED BY INDIANA DIVORCE MEDIATION TO RESOLVE YOUR INDIANA GRANDPARENT’S RIGHTS ISSUE!