Grandparent Visitation: When Can a Grandparent Seek Visitation?

The family dynamic is something that is always changing, and there is certainly no “standard” or “normal” family. Many may picture a mom, a dad, and a couple of children when thinking of what was called a “nuclear family.” However, the truth is, families, often, do not resemble a nuclear family. Families may consist of same-sex couples, single parents, step-parents, half-siblings, adopted children, aunts, uncles, third-party custodians, or a myriad of other possibilities. On this note, it has become increasingly common for grandparents to play an active role in raising a child while the child’s parents are at work or to help if a child is living in a single parent home. Even if a grandparent does not have a day-to-day interaction with a grandchild, a grandchild and grandparent relationship is special and can be very important for a child as he or she grows up. Unfortunately, sometimes a grandparent’s attempt to spend time with their grandchild is thwarted by certain circumstances – the grandparent’s son or daughter has denied the grandparent from spending time with the grandchild, the grandparent’s son or daughter has died, the grandchild is of parents who have had an acrimonious divorce, or the grandchild has been adopted. Fortunately, the Indiana General Assembly has created certain statutes which allow for a grandparent to seek visitation time as a remedy in some of these situations. This blog covers several points that are crucial for a grandparent seeking visitation to understand.

An important concept: the difference between custody, parenting time, and visitation. The concepts of custody, parenting time, and visitation may often be confused, so as a preliminary matter, it is important to understand what each of these terms means on a practical level under Indiana law. Custody over a child has two parts: legal and physical. Legal custody means who makes decisions for a child until the child reaches adulthood with respect to important upbringing issues – primarily religion, education, and medical care. Physical custody refers to where a child lives. Often, when a married couple who are the parents of a child divorce, one parent will receive primary physical custody, and the other will get parenting time which usually includes overnight stays.¹ Consequently, physical custody and parenting time go together – when one parent gets primary custody, the other has parenting time.² Visitation, contrarily, is simply a time when a non-parent spends time with a child. “Visitation” is the legal term that most often applies to grandparents (some grandparents may obtain custody if they have been the child’s primary caregiver under other law). This is covered by the Grandparent Visitation Act that follows:

The Indiana Grandparent Visitation Act.³ The Act 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.

The key takeaways from reading the act are three-fold. The first is that visitation may only be sought in the contexts prescribed by the statute.

The second is that a paternal grandparent may be “at the mercy” of the actions of the child’s parents when it comes to a child that is born to parents who are not married. When this happens, to establish legally recognized paternity (that is, the identity of the father), the parents may need to take certain steps such as filling out a paternity affidavit at the hospital when the child is born or filing a paternity action in a state court. If the father of a child has not taken such steps to establish that he is the legally recognized father, then the paternal grandparents likely do not have standing to seek visitation. This concept is also important for the parents of same sex couples, couples using surrogacy to conceive a child, step-parents, etc. Simply put, a grandparent’s rights are limited by the legal parental status of the grandparent’s child – if the grandparent’s child is not a legally recognized parent (natural or adoptive), then the grandparent-grandchild relationship is not legally recognized, and the grandparent does not have standing to seek visitation.

The third takeaway is a concept that was explicitly recognized in a United States Supreme Court case called Troxel v. Granville.⁴ In a very broad sense, the United States Supreme Court reasoned in this case that parents of a child have a fundamental right to raise their children as they see fit. This concept is contemplated by the Indiana Grandparent Visitation Act in that it does not include visitation rights for a grandparent where the parents, who do not meet one of the three criteria, simply do not want that grandparent to see the child.

What does a court consider in deciding whether a grandparent gets visitation? A court may award visitation time to grandparents if it is in the best interests of the child.⁵ Further, the Court may consider whether the grandparents have had or attempted to have meaningful contact with the child.⁶ However, the Court will also consider the parents and their wishes as it pertains to visitation by the grandparents. To this end, if you are a grandparent seeking visitation rights, it is critical that ample evidence be presented of the connection that you have with your grandchild. Pictures of you spending time with the grandchild on holidays, family trips, and outings, birthday cards, letters, texts, e-mails, and/or calendar entries showing that you attended a grandchild’s school program, concert, or sports competition are all great starting points to show a court that you have developed a meaningful relationship in your grandchild’s life and that a continuance of that relationship is in the grandchild’s best interest.

Ciyou & Dixon, P.C. attorneys’ practice throughout the State of Indiana and represent grandparents and understand the issues surrounding grandparents who may wish to seek visitation. This blog post is written by Ciyou & Dixon, P.C. attorneys and is not intended as specific legal advice or a solicitation for services. It is an advertisement.

1. The typical parenting time for a non-primary custodial parent is every other weekend plus one night per week. Holidays are typically divided, and if a child is of school age, then usually the non-custodial parent gets one-half of the child’s summer vacation. See Ind. Parenting Time Guidelines, § II, Part D.
2. This can deviate greatly and is just used to illustrate these concepts.
3. Ind. Code § 31-17-5-1 et seq.
4. Troxel v. Granville, 530 U.S. 57 (2000).
5. Ind. Code §31-17-5-2.
6. Id.