Legal Hurdles and Solutions for Grandparents

Legal Hurdles and Solutions for Grandparents

Grandparents in Indiana are not entitled to visitation with their grandchildren, but are afforded the right to seek court ordered visitation under certain circumstances. Those who are eligible to ask the court for visitation may find, however, that convincing the judge to grant it might be a struggle under the current law. This blog explores legal hurdles and solutions for grandparents seeking visitation rights in Indiana. 

Grandparent visitation is governed by Indiana’s grandparent visitation code, including the right to seek visitation statute (I.C. 31-17-5-1) which provides that “(a) A child's grandparent may seek visitation rights if: (1) the child's parent is deceased; (2) the marriage of the child's parents has been dissolved in Indiana; or (3) subject to subsection (b), the child was born out of wedlock. (b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the child's father has not established paternity in relation to the child.” This section of the code can pose a problem for grandparents when the child’s parents divorced outside the state of Indiana or if their son has not yet established paternity of the child. No need to worry yet. For most any legal problem, an experienced attorney has a solution. 

Perhaps the obvious approach for paternal grandparents pursuing visitation with their grandchild when their son has not yet established paternity is to encourage him to do so. Options aside from that are beyond the scope of this blog and grandparents in this situation should consult with an experienced attorney for more information. Paternal grandparents should also be aware that the marriage of their son to the child’s mother will prevent them from seeking visitation unless one of the other factors allowing a grandparent to seek visitation applies (Neal v. Neal (In re E.A.N.), 178 N.E.3d 843 (Ind. App. 2021)).  

Another hurdle for grandparents is when the child’s parents were divorced in a state other than Indiana. In this case, grandparents only have a right to seek visitation if they are not bound by an order of the court in the state where the divorce was filed (I.C. 31-17-5-10(1)). A grandparent may be bound by an order of an out of state court if they requested visitation in that state, were properly served notice of any hearing concerning custody and visitation with the child, and were given an opportunity to be heard at such hearing (I.C. 31-21-3-1). Whether or not a party is bound by an out of state court order is arguable, and a skilled attorney can help if you believe that you are.  If not bound by an order of an out of state divorce court, a grandparent may then ask for visitation in Indiana if an Indiana court would have jurisdiction to grant visitation rights in a modification action (I.C. 31-21-5-10(2)). 

The Indiana code governing jurisdiction of child custody and modification cases provides (I.C. 31-21-5-1) that an Indiana court has jurisdiction to make an initial child custody decision if one of the following applies: (1) if Indiana is the home state of the child on the day the petition for visitation is filed or was the home state of the child within the previous six months and is absent from Indiana but a parent or person acting as a parent resides within the state, or (2) no other state has jurisdiction based on the child’s absence from Indiana and presence in that state during the last six months OR the state has declined to exercise jurisdiction on the ground that Indiana is a more appropriate forum AND the child and a parent or person acting as a parent have significant ties to Indiana where substantial evidence concerning the child’s care and personal relationships can be found, or (3) all states having jurisdiction have declined to exercise it on the ground that Indiana is a more appropriate forum. 

Jurisdiction is not the most paramount issue for grandparents seeking visitation, however. The greatest concern is that the burden of proof is on the grandparent. Because parents have a constitutional and fundamental right to raise their children as they see fit, which includes denying visitation with a child’s grandparent, a parent does not need to prove that a grandparent should not have visitation with the child. A parent’s decision concerning grandparent visitation is presumed to be in the child’s best interest. The burden of proof is therefore on the grandparent to provide evidence which tends to prove that visitation would be in the child’s best interest (K.T.A. v. R.A. (In re B.A.A.), 173 N.E.3d 689 (Ind. App. 2021). One factor that the court may consider when determining if visitation is in the best interests of the child is if the grandparent has had, or attempted to have, meaningful contact with the child (I.C. 31-17-5-2(b)). Any other factor effecting the child’s health and welfare may also be considered by the court. Because every family is different, there are no common solutions for this obstacle and grandparents wishing to obtain court ordered visitation are encouraged to consult with an experienced family law attorney. 

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.


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