If you are researching grandparents' right in Indiana, you are in the right place. In this post, we discuss what you need to know about the rights of grandparents, and how to take the next steps you need.
What Are Grandparents' Rights In Indiana?
Indiana law allows grandparents to petition the court for visitation with their grandchildren in a limited number of situations. A grandparent meeting the criteria will not necessarily have their petition granted but will get a hearing where they can present evidence, call witnesses, and make an argument for a visitation award. Custody is a more complicated issue, and there is no statute that specifically gives a grandparent the right to ask for custody or to participate in a custody proceeding between the child’s parents. However, that does not mean that with the right attorney you could not get custody. In this blog we will be exploring the rights of grandparents in Indiana child custody cases.
The first code governing grandparent visitation is the right to seek visitation statute which provides that a grandparent may file a petition for visitation with a grandchild if (I.C. 31-17-5-1): (1) The child’s parent is deceased, (2) The child’s parents were divorced in Indiana, or (3) the child was born out of wedlock. There is an exception to number three, which is that the court may not grant visitation if the grandparent is a paternal grandparent and the child’s father has not established paternity. If the court finds that the grandparent meets the required conditions, it will then determine if visitation with the grandparent is in the best interests of the child. When determining the best interests of the child the court will consider whether the grandparent has had or attempted to have meaningful contact with the child and may interview the child in chambers to assist with determining if visitation with the grandparent is in the child’s best interest (I.C. 31-17-5-2).
What Does Indiana Code Say About The Rights Of Grandparents?
While Indiana code contains no statute specifically permitting grandparents a right to seek custody, it does however, contain a statute allowing “a person other than a parent” to initiate a custody action (I.C. 31-17-2-3(2)). The statute was addressed for the first time in In re Custody of G.J when the parties became involved in a dispute over petitioner’s standing to ask for custody of the child. The petitioner, the child’s uncle, filed his petition under the statute allowing a person other than a parent to seek custody of a child. The trial court dismissed the petition stating that the code section applied only to divorces. When the appellate court rejected respondent’s interpretation of the statute as applying only in a divorce, he offered the interpretation that the statute applied only to de facto custodians (persons providing childcare and financial support to the child). After a complete analysis of the statute, the appellate court stated that it was “compelled to conclude that Section 31-17-2-3(2) means what it says: any person ‘other than a parent’ may seek custody of a child by initiating an independent cause of action for custody” (In re Custody of G.J, 796 N.E.2d 756 (Ind. Ct. App. 2003)).
Grandparents have also been awarded custody of their grandchildren in the children’s parent’s divorce (Fields v. Allerton, No. 22A-DR-939 (Ind. App. Nov. 30, 2022)) and had the children placed with them when the department of child services removed the children from their home (J.Y. v. A.W. (In re C.Y.), No. 22A-AD-365 (Ind. App. Oct. 31, 2022)). In any type of legal proceeding where custody and care of minor children is an issue, the court will make a custody determination based on the best interests of the children. And while parents have a constitutional right to custody, care, and control of their children, that right is only one of many factors that a court must consider when determining a child’s best interests. In most cases, the factors considered by the court are those enumerated in Indiana’s custody order statute (I.C. 31-17-2-8): the age and sex of the child, the child’s interaction with both parents, siblings, and anyone else who may significantly affect the child’s best interests, the wishes of the parents and the child, with more weight given to a child who is at least 14 years of age, the child’s adjustment to home, school, and community, the physical and mental health of all parties involved, and any evidence of domestic violence in the home. So, if a child is to be placed outside the home or custody granted to someone other than the parents, grandparents who have a close relationship with the children, live nearby, and are physically and mentally healthy are generally the next custodian to consider.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.