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Recent Indiana decision affects who has visitation rights outside of parents, grandparents and step-parents
Posted in Estate Planning

In the last week of August 2011, the Indiana Court of Appeals handed down a decision in Kitchen v. Kitchen that will undoubtedly affect third parties seeking visitation over someone else’s child in Indiana. The Kitchen Court determined that a trial court did not have the authority to award third party visitation to persons other than a grandparent, parent or step-parent. The Court further determined that because the trial court lacked the authority to grant visitation, and because lack of standing cannot be cured, the portion of the trial court’s order granting visitation to the aunt and uncle in question was void.

Background The story behind the Kitchen decision dates back into the early 2000’s, where sometime after the mother and father were married and their child was born, the mother filed a petition for dissolution of marriage. In March 2006, the trial court entered a dissolution decree whereby the parents would share legal custody of the child, with the mother having physical custody and the father having regular parenting time. The mother and child then lived with the child’s maternal aunt and uncle until December 2007, when the mother died after an extended illness. At that same time, the father petitioned the trial court for immediate custody of the child, while the aunt and uncle filed a petition for guardianship. Ultimately, the father entered into an agreement with the aunt and uncle, which provided that the aunt and uncle would be granted temporary custody and the father would exercise parenting time. This arrangement quickly deteriorated.

The trial court grants third party visitation In June 2009, the trial court held the previously scheduled custody hearing. The father was granted full custody of the child and the aunt and uncle were granted visitation. Then, in March 2010, the father filed a petition requesting that the trial court vacate the portion of its June 2009 custody order granting visitation to the aunt and uncle. The trial court denied the father’s petition and then denied his subsequent motion for relief from judgment. The trial court found that the father was attacking the sufficiency of the evidence to support the visitation order, and that the time for such a challenge had passed.

The Indiana Court of Appeal’s decision On review, the Court analyzed Indiana statutes and case law, which generally does not award third party visitation to persons other than a grandparent, parent or step-parent. The Court also cited the 2000 U.S. Supreme Court decision Troxel v. Granville, stating "[T]he interest of the parents in the care, custody and control of their children – is perhaps the oldest fundamental liberty interests recognized by this Court." Accordingly, the Court adhered to the limitations of Indiana statutes and case law conferring standing to the petition for visitation only to parents, grandparents and step-parents. Thus, the Court found that the trial court erred in concluding it had the authority to grant third party visitation to persons other than parents, grandparents and step-parents. In regard to the timeliness of the father’s challenge, the Court found that because the trial court lacked the authority to grant visitation, and because lack of standing cannot be cured, the portion of the June 2009 custody order granting visitation to the aunt and uncle was void. The Court concluded that the trial court erred by denying the father’s motion for relief from judgment on this ground, finding that the father had filed the motion within a reasonable time.

Implications Ultimately, the Kitchen Court determined that a trial court did not have the authority to award third party visitation to persons other than a grandparent, parent or step-parent. The Court further determined that because the trial court lacked the authority to grant visitation, and because lack of standing cannot be cured, the portion of the trial court’s order granting visitation to the aunt and uncle was void. Consistent with such findings and conclusions, the Court reversed and remanded the decision of the trial court.   To view the text of this opinion in its entirety, click here: Danny R. Kitchen, Jr. v. Rebecca Kitchen (deceased), Michael Lake and Shelly Lake If you have questions about this case or related issues, please contact the Bingham Greenebaum Doll Estate Planning Practice Group.

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