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Judge Uncomfortable with Result, But Finds No Choice But to Concur
Posted in Estate Planning

A trial court’s order providing for an Indiana man to have visitation with his adopted child was ruled to be invalid by the Indiana Court of Appeals because the judge did not grant visitation under Ind. Code § 31-19-16-2, the statute providing exclusive means for birth parent visitation. Finding no way around Indiana statutes and precedent, Judge Crone was compelled to concur, but noted that this result was not in the best interest of the child.

JD and JS were high school students when JS became pregnant with AH, who was born with serious medical conditions. With JD and JS’s consent, JS’s parents adopted AH.  Eventually JD and JS were married and lived with AH and a second child born to the couple, ED.  AH referred to JD and JS as “Mom” and “Dad.”  JD and JS filed to adopt AH, with JS’s parents’ consent, but this adoption was never finalized.  JS later filed for divorce from JD.  During the pendency of the divorce, JD exercised visitation with AH at the same time he visited ED.  However, this arrangement did not last and JD’s access to AH was limited by the adoptive parents.  JD and JS eventually executed a settlement agreement and their marriage was dissolved. 

No mention of visitation of AH was made in the agreement, though JD continued to have visitation with AH which occurred when he had visitation with his other child, ED.  JS remarried and JD’s visitation with AH was again limited.  JS and her new husband then petitioned to adopt AH, with the adoptive parents’ consent.  JD filed a petition for visitation in the dissolution court, adding the adoptive parents as necessary parties.  (At the time, no decision had been reached on JS’s separate adoption petition).  The trial court granted JD’s petition on the grounds that he qualified as a “third-party nonparent custodian” whose court ordered visitation was in AH’s best interests. 

The Court of Appeals focused instead on JD’s status as a birth parent who was attempting to obtain postadoption visitation.   Indiana’s postadoption visitation statute allows for visitation if the trial court finds (1) the best interests of the child would be served; (2) the child is at least two and there is a significant emotional attachment between the child and birth parent; (3) each adoptive parent gives consent; (4) a postadoption agreement is executed; (5) certain child agencies sign off; (6) consent is given by the child if the child is at least 12; and (7) the trial court approves the postadoption agreement.  Ind. Code § 31-19-16-2. 

Finding the statute clearly applicable and that the court did not follow these procedures, the Court reversed the trial court and remanded the case with instructions to vacate the visitation order.  Finding “no basis for granting JD visitation under Indiana law,” Judge Crone wrote separately to concur in the result, but to express his opinion that it was an “unjust result.”  Noting the trial court had found that JD and AH had developed a father-daughter relationship, visitation by JD was in AH’s best interests, and a potential for AH to experience a sense of abandonment by JD was “made more poignant by the fact that her sister [ED] continues to have regular consistent and defined visitation with” JD, Judge Crone agreed with the trial court that preserving the status quo cannot be in AH’s best interests and it would almost certainly have a negative impact on the relationship between AH and her sister. 

Judge Crone called for the legislature to review Indiana’s visitation statutes and the Indiana Supreme Court to revisit previous holdings. Click here to view the opinion >>

To learn more about Michael Kohlhaas and his practice, visit his profile.

  • Partner

    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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