Link for opinion: http://www.in.gov/judiciary/opinions/pdf/08291126jsk.pdf
The Indiana Court of Appeals held in Kitchen v Kitchen, et al, No. 27A04-1101-DR-1, N.E.2d (Ind. Ct. App., 2011) that the trial court erred when granting third-party visitation to an aunt and uncle(the Lakes).
The Kitchens divorced and shared joint legal custody; Rebecca had primary physical custody and Danny had regular parenting time. Rebecca, because of illness, lived with the Lakes. After her death, Danny petitioned for immediate custody and the Lakes filed a guardianship petition. Danny and the Lakes agreed the Lakes would have temporary custody and Danny would have parenting rights, the court approved this arrangement.
The court, later awarded full custody to Danny and supervised visitation to the Lakes. Less than one year later, Danny filed a motion for relief from judgment alleging the visitation provision was void or voidable, and the Lakes lacked standing to petition for visitation. The trial court denied this motion. Danny appealed.
The Appellate court found that the trial court lacked the authority to grant visitation rights to a third party. According to Indiana Code §31-17-5-1, the only parties afforded visitation rights, other than a parent, are grandparents and case law has given standing to step-parents after a two-pronged test is applied (proof of custodial and parental relationship and visitation is in child’s best interest).
The court has held, in different cases, that third party visitation rights were not allowable to an aunt, former foster parents, an ex-boyfriend and a great aunt and uncle. The court also recognized “Parental rights are matters of constitutional import protected by the Fourteenth Amendment to the United States Constitution.”
The appellate court found the motion for relief from judgment should have been granted under Indiana Trial Rule 60 (B) (8) as it allows relief from a judgment when it is void, sets forth a defense and filed within a reasonable time. The Lakes lacked standing to petition for visitation, the trial courts order granting visitation was outside of its authority and therefore void.
Labels for the post: Indiana; visitation rights; third party
Sigh. As a mother of four, I recognize the role of a parent to be one of complete selflessness. I feel that having people who show my child unconditional love is such a blessing, I fail to understand how others might try to restrict that. I suppose I need to recognize what a gift I have enjoyed to have a full and natural relationship with my children. But if I was not here with them, I hope that the people who take on my role would be willing to do so with the absolute selflessness that I expect. Indeed the very act of accepting someone else's child into your life is a committment to personify their beliefs; to be what they cannot. When families join, by death or by marriage, they embark on a journey to build, not to deplete. I must fail to see the point at which the right to show a child love becomes 'void'.
ReplyDeleteFunny how they are fine in the beginning and then not, it seems without reason. If someone is going to give of themselves who should stand in the way?
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