In Re: the Grandparent Visitation of G.S., J.S. v. M.S. , 69 N.E.3d 500 ( 2017 )

FILED
Jan 17 2017, 7:56 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
R. Lee Money Larry F. Whitham
Greenwood, Indiana Whitham, Hebenstreit &
Zubek, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: the Grandparent January 17, 2017
Visitation of G.S., Court of Appeals Case No.
30A01-1608-DR-1801
J.S.,
Appeal from the Hancock Circuit
Appellant-Respondent, Court
v. The Honorable R. Scott Sirk,
Commissioner
M.S., The Honorable Richard D. Culver,
Judge
Appellee-Petitioner
Trial Court Cause No.
30C01-1202-DR-246
Baker, Judge.
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[1] J.S. (Mother) appeals the portion of the trial court’s order mandating that G.S.
(Child) be permitted to have contact with other paternal relatives when
participating in grandparent visitation with M.S. (Grandmother). Mother
argues that there is no statutory authority for a trial court to order a child to
have visitation with anyone other than a grandparent in the face of a parent’s
objections. We agree, and reverse in part.
Facts
[2] M.S. (Father) and Mother were married on October 19, 2002. Child, the only
child born of the marriage, was born in November 2003. Throughout her life,
Child had a close and loving relationship with Grandmother, her paternal aunt,
M.L. (Aunt), and other paternal relatives. The parents divorced in March 2014.
On May 2, 2015, Father committed suicide.
[3] Following Father’s death, Mother began to curtail the time that Child spent
with her paternal relatives. Mother and Aunt have a particularly acrimonious
relationship, and Mother did not wish for Child to spend time with Aunt any
longer. Aunt and Grandmother live together, making visitation between Child
and Grandmother increasingly complicated. For example, Mother required
that visits occurred outside of Grandmother’s home, which was difficult for
Grandmother, who is elderly and has medical concerns. On June 5, 2015,
Grandmother filed a petition for grandparent visitation.
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[4] In September 2015, Child and Mother moved to Tennessee because Mother
received a job promotion necessitating the move. Following the move, Child’s
contact with Grandmother and other paternal relatives decreased significantly.
[5] The evidentiary hearing on Grandmother’s petition took place on June 1 and
June 29, 2016. On August 1, 2016, the trial court issued an order granting the
petition. The trial court ordered that one visit per month, for at least six hours
at a time, is to occur between Grandmother and Child, and that Grandmother
is entitled to overnights during the summer months. In pertinent part, the trial
court also ordered as follows:
[A]ll visitation between Grandmother and Granddaughter may
occur at Grandmother’s Residence or at such other location as
Grandmother may select . . . .
. . . [A]ll residents of Grandmother’s house need not leave
Grandmother’s Residence during visits between Grandmother
and Granddaughter, nor shall they be required to do so.
Furthermore, other members of Father’s extended family may be
present in Grandmother’s Residence or at such other locations
where Grandmother may choose to exercise visitation. This
shall mean that Granddaughter is entitled to be present and to
participate in paternal family reunions and other paternal family
functions, to the extent those are scheduled during
Granddaughter’s periods of visitation with Grandmother.
. . . Grandmother shall be entitled . . . [to] weekly telephone
conversations with Granddaughter. . . . During those
conversations, it shall be permissible for Grandmother to be
joined in the conversation by other members of the extended
paternal family. Mother shall not restrict Granddaughter from
speaking openly and freely during periods of visitation or
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telephone contact, nor shall Mother . . . restrict Granddaughter’s
activities in reaction to Granddaughter’s maintenance of a loving
relationship with Father’s family members.
Appealed Order p. 11-12. Mother now appeals only the portions of the order
mandating that Child be permitted to visit and have contact with her paternal
relatives other than Grandmother.
Discussion and Decision
[6] To resolve this appeal, we must turn to the text of the Grandparent Visitation
Act (GVA). As with all cases involving statutory interpretation, we apply a de
novo standard of review to the trial court’s order. E.g., In re Visitation of C.R.P.,
909 N.E.2d 1026, 1028 (Ind. Ct. App. 2009). The GVA was enacted in
derogation of the common law; as such, it must be strictly construed. In re
Guardianship of A.J.A., 991 N.E.2d 110, 113 (Ind. 2013).
[7] It is well established that parents have a fundamental constitutional right to
raise their children. In re Visitation of L-A.D.W., 38 N.E.3d 993, 998 (Ind. 2015).
Indeed, the United States Supreme Court has described it as “perhaps the oldest
of the fundamental liberty interests recognized by this Court.” Troxel v.
Granville, 530 U.S. 57, 65 (2000). While GVAs around the country are
routinely enforced, it is likewise acknowledged that a parent’s
right of upbringing would be a sham if it failed to encompass the
right to be free of judicially compelled visitation by “any party”
at “any time” a judge believed he “could make a ‘better’
decision’” than the objecting parent had done. The strength of a
parent’s interest in controlling a child’s associates is as obvious as
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the influence of personal associations on the development of the
child’s social and moral character.
Id. at 78 (Souter, J., concurring) (footnote omitted).
[8] In this case, it is undeniable that Grandmother is a “grandparent” for the
purpose of the GVA, that she had standing to seek visitation with Child, and
that the trial court acted within its authority in granting her petition to that
extent. But it is likewise undeniable that Child’s other paternal relatives are not
“grandparents.” The General Assembly has seen fit to carve out a narrow,
limited exception to a parent’s right to raise her children for grandparents.
There is no such exception for anyone else, including other relatives. Simply
put, except for grandparents who qualify under the terms of the GVA, no other
individuals can trump a parent’s right to determine who her child does, and
does not, associate with. As such, the trial court erred by ordering that Mother
permit Child to visit and maintain telephone contact with anyone other than
Grandmother.
[9] In reaching this result, we intend to express no opinion about the character of
Child’s paternal relatives, or even whether being permitted to maintain contact
with them would be in her best interests. Indeed, we encourage Mother to
reconsider her position; considering all that Child has lost in her short life, it
seems wise to permit her to maintain contact with anyone and everyone who
loves and supports her. But while we encourage her to do so, we—and the trial
court—are without authority to order her to do so. As such, we reverse the
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portions of the trial court’s order relating to all individuals other than
Grandmother.1
[10] The judgment of the trial court is reversed in part.
Mathias, J., and Pyle, J., concur.
1
Although Grandmother spends much of her brief arguing that the trial court properly ordered that visits
with Child may take place in Grandmother’s residence, in fact, Mother does not appeal that portion of the
order. The trial court did not err by ordering that Child may visit with Grandmother in her home. Instead,
the trial court erred by ordering Mother to consent to the presence of anyone else in the home (or wherever
else the visits may take place) during the visits.
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