L.A.D. (Mother) and R.W. (Father) were married and had a child, L-A.D.W. (L-A). M.D. and W.D. (Grandparents) helped provide care for L-A from the time she was born and even lived in Mother and Father’s home after L-A was born in order to help Mother care for her. Grandparents carried out parental duties, such as cooking meals, doing L-A’s laundry, taking L-A to and from school, helping with homework, reading to L-A before she went to sleep, and attending L-A’s extracurricular activities on a daily basis.
In July 2010, Mother was diagnosed with stage four colon cancer, and passed away on April 17, 2013. In Mother’s will, she indicated that she wanted Grandparents to pursue generous visitation rights with L-A. After Mother’s death, Grandparents reached out to Father requesting to establish some type of visitation agreement; Father never responded to their request. Grandparents felt they were being cut out of L-A’s life and that their relationship with L-A would be terminated without court-ordered visitation. Grandparents filed for Grandparent Visitation rights soon after Mother’s passing, although they never disputed that Father was fit to be L-A’s primary caregiver.
After a hearing in the trial court, during which two mental health experts opined that it would be in L-A’s best interests to have regularly scheduled time with Grandparents, the trial court determined that it was in L-A’s best interest to have a meaningful and ongoing relationship with Grandparents. The trial court ordered the following visitation schedule, which followed the visitation schedule that was initially recommended by one of the mental health experts:
The court-ordered grandparent visitation is as follows: (1) one overnight on one weekend during even-numbered months; (2) two overnights on one weekend during odd-numbered months; (3) unless the parties otherwise agreed, all weekend visitation is to occur during Father’s on-call weekends, and Father is to provide notice of when those weekends are; (4) if Father’s employment changes and he is no longer on-call, visitation on the weekends will be held on the third weekend of the month; (5) every Tuesday during the school year from after school until 7:00 p.m., and during the summer from 10:00 a.m. until 7:00 p.m.; (6) eight hours on Mother’s birthday; (7) four hours on Grandmother’s and Grandfather’s birthday; (8) one overnight during the week of L-A’s birthday; (9) two overnights during L-A’s Christmas vacation; (10) five consecutive overnights during L-A’s summer vacation in addition to the already scheduled weekend overnights that month; and (11) Grandparents will continue to attend L-A’s extracurricular activities, and Father will provide notice of those.
Father appealed to the Indiana Court of Appeals, arguing that the trial court failed to give special weight to his decisions regarding L-A’s upbringing, or to properly apply the presumption that a fit parent acts in the child’s best interest. Father also disputed the amount of visitation that was awarded. On appeal, the Court of Appeals affirmed the trial court’s order for grandparent visitation but reversed and remanded on the amount of visitation, determining that the amount of visitation “exceeded the occasional temporary visitation” that is permitted under the Grandparent Visitation Act.
Father petitioned for transfer to the Indiana Supreme Court, asserting that the trial court did not afford Father’s decision as a fit parent special weight, and no evidence supported that Father would deny visitation to Grandparents. The Indiana Supreme Court accepted transfer and affirmed the Court of Appeals’ decision relating to the trial court’s order granting grandparent visitation; however, it determined that the trial court did not abuse its discretion in the amount of grandparent visitation that was ordered and affirmed the entirety of the trial court’s order.
In reaching its decision, the Indiana Supreme Court acknowledged that, under the Grandparent Visitation Act, “the amount of visitation is left to the sound discretion of the trial court.” K.I. ex rel J.I. v. J.H., 903 N.E.2d 453, 462 (Ind. 2009). It also noted that its review is conducted with a “preference for granting latitude and deference to our trial judges on family law matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
The Supreme Court observed that neither the Grandparent Visitation Act nor the Court has set a standard for determining what amount of visitation is appropriate, once a trial court has determined that court ordered visitation is warranted. It cited K.I., 903 N.E.2d at 462, for the proposition that “the Grandparent Visitation Act contemplates only occasional, temporary visitation that does not substantially infringe on a parent’s fundamental right to control the upbringing, education and religious training of their children.” The Court ultimately concluded that grandparent visitation cases are very fact-sensitive and that, considering the extensive role that Grandparents played in L-A’s life from the time she was born, the trial court did not abuse its discretion in setting the grandparent visitation schedule. In addition, while it acknowledged that the grandparent visitation schedule was “similar” to a schedule that would have been appropriate for a non-custodial parent pursuant to an application of the Indiana Parenting Time Guidelines, it was not persuaded that “similarity alone would require a finding of an abuse of discretion.”
While the Supreme Court did not provide a specific standard for determining what amount of grandparent visitation is appropriate, it is apparent that the role a grandparent has played in a child’s life prior to the initiation of a grandparent visitation action will be very significant in determining how much grandparent visitation is fair in each case. While a grandparent likely will not be entitled to enjoy parenting time equivalent to the parenting time afforded non-custodial parents pursuant to the Indiana Parenting Time Guidelines, in appropriate cases, a similar schedule may be adopted and upheld.