Extended family, such as grandparents, can play a big role in a child’s life when his or her parents are getting divorced. The love and support of family is important, especially when a child is dealing with the life changes that come when his or her parents separate. Often, one parent will move back in with his or her parents (the grandparents) while a divorce is pending, until the financial matters are settled and they can obtain more permanent housing. When a parent moves back home, inherently, that is where that parent will exercise his or her parenting time, and thus, the grandparents and the child will probably have more interaction than before on a daily or weekly basis. When this happens, it begs the question of what role a grandparent or extended family member has in a divorce proceeding?
Generally, the Husband and Wife are the only parties to a divorce action, and the only persons a judge may issue an Order to or for. This happens by procedure when either the Husband or the Wife files for divorce, and serves legal notice (a summons and copy of the petition for dissolution) upon their spouse.1 If there are minor children (under the age of 19 in Indiana), who are children of the marriage, meaning born to the Husband and Wife or adopted, the trial court would also have jurisdiction to make decisions regarding the children’s custody, parenting time, and child support, etc.2
A third party, who is not the Husband or Wife, or a child of the marriage, may otherwise intervene in the matter. For a third party to intervene, someone must file a motion with the court to ask that the third party be ordered or allowed to intervene, and that third party (if they are not the person otherwise asking), must be served with a summons (similar to the spouse who did not initiate the divorce must be served with a summons.3 A possible reason to intervene would be because a third party has been raising the child, and not the parents, and that third party may want the court to award custody of the child to them, and not one of the parents. Only upon service of a summons, and a court’s order allowing the third party to intervene, does that third party become a party to the case, and the court have jurisdiction to make Orders affecting that person.
In a dissolution matter, a court must consider the best interests of the child, when making a custody determination.4 One of the eight (8) best interest factors is “[t]he interaction and interrelationship of the child with: …(C) any other person who may significantly affect the child's best interests.”5 Thus, the trial court may consider extended family members, such as grandparents, and their interaction and relationship with the child, as factor in making a custodial decision about the child. As such, and especially when a parent has moved back home and is living with his or her parents (the grandparents), the grandparents may be involved or mentioned in a custody evaluation performed by a social worker, or psychologist, which is provided to the court to assist in the court’s decision of which parent to award custody to.
However, a court can go too far in involving extended family members, such as grandparents, in a dissolution matter. A recently decided case in the Court of Appeals addressed specifically, where the line is drawn.
In In Re the Marriage of Campbell, the trial court ordered that Father’s parents (the paternal grandparents) attend family counseling after the final dissolution of the marriage, finding it to be in the best interests of the children, and Father moved back in with his parents, and he exercised his parenting time at his parent’s home6. Inferentially, the children had, and will have, significant contact with their paternal grandparents.
The Court of Appeals reversed the trial court’s order with respect to ordering the grandparents to counseling after the marriage was dissolved and custody of the children was decided. The Court of Appeals opined that the grandparents, while significant figures in the children’s lives, were not parties to the divorce action, and the trial court had no jurisdiction to issue an Order mandating that they do something after the final order of the court on custody.
We hope that this blog post has been helpful in understanding the role extended families and grandparents may play in a divorce case. Every case is different, and it is recommended that you consult an attorney to determine the best course of action to achieve your goals in your specific case. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.
