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Indiana Family Law Update: Trial court erred in granting a visitation order to Mother's former Boyfriend who was not Child's father
Posted in Estate Planning

HELD: Trial court erred in granting a visitation order to Mother's former Boyfriend who was not Child's father. FACTS AND PROCEDURAL HISTORY:

Mother gave birth to Child in 2002. Child's biological father died the following year. Mother was then in a relationship with Boyfriend from 2004 through 2007, during which time Mother, Boyfriend, and Child lived in West Virginia. During this period, Boyfriend was very involved with Child's life and was referred to as "daddy." After the relationship ended, Mother allowed regular, informal visitation between Boyfriend and Child.

In 2009, Mother moved back to Indiana and remarried another man. Mother continued to permit Child and Boyfriend to visit together every other weekend. In late 2009, Boyfriend filed a "Motion to Establish De Facto Parent and Grant Parenting Time." Mother responded with a motion to dismiss for failure to state a claim and, further, in Spring 2010, Mother terminated the informal visitations that had been occurring between Boyfriend and Child. The trial court denied Mother's motion to dismiss and Boyfriend's request to be named Child's de facto parent. However, the trial court granted Boyfriend's request for visitation, extending him alternating weekends with Child. Mother appealed.

The Court of Appeals noted that Indiana statute defines a "de facto custodian" as someone who has been the primary provider of care and financial support for a period of at least 6 months (for a child under age 3) and for at least one year (for a child over age 3). However, the statute applies only to situations arising from paternity actions, custody proceedings, and CHINS cases; the spirit of the statute is to give standing to intervene to third parties who have provided care for a child who is the subject of the case. Also, prior case law has held that the de facto custodian statute does not provide for visitation. In short, the Court of Appeals concluded that, as a matter of Indiana law, Boyfriend has no basis to receive a visitation order with Child. As such, the trial court's visitation order was reversed.

To view the text of this opinion in its entirety, click here: K.S. v. B.W.

Note: This post is from Bingham Greenebaum Doll's "Indiana Family Law Update." To subscribe to our free Indiana Family Law Update, send an e-mail from the subscribing account to with "subscribe" in the subject field or body. To unsubscribe, simply reply to this e-mail with "unsubscribe" in the subject field or body. 

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    Mike is a partner in Bingham Greenebaum Doll LLP’s Estate Planning Department. The Estate Planning Department seamlessly coordinates and executes a wide array of legal services that cater to the unique needs of high ...



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