Indiana allows grandparents to petition for visitation under three situations: the child's parent is deceased; the child's parents are divorced; or the child was not born into wedlock. Under the Indiana Code, if the child's parents are still alive and not divorced, then the grandparent does not have a legal right to visitation.
Serving the Child's Best Interests
Under Indiana Code Section 31-17-5, "Grandparent's Visitation," courts may grant visitation rights to a child's grandparents only in certain circumstances. Using "the best interests of the child" as the determining factor, Indiana courts will review the specific facts in a custody petition and determine if the child's best interests will be served by allowing the grandparents visitation rights. The Indiana courts will review the grandparent's petition to make sure she has attempted to have a meaningful relationship with the child. The court may consider a parent's wishes, believing that parental preference ensures the best interests of the child will be served. The Indiana courts will interview the grandchild within judges' chambers to ensure his best interests will be met. The court has discretion in allowing attorneys into the chambers during this interview with the child. However, Indiana courts will only grant a grandparent's visitation petition in specific circumstances.
When Children's Parent is Deceased
If the child's parent is deceased, then the Indiana court may consider the totality of the circumstances, including the current relationship between all parties. The court will still consider the best interests of the grandchild, even if the parent is deceased, and use the best interest as a critical factor in visitation orders.
When Children's Parents are Divorced
If the grandchild's parent is not deceased, then the court may allow visitation if the parents are divorced or the child was not legitimized and born outside of wedlock. However, most likely for public policy reasons to encourage paternal establishment, the Indiana courts will not grant visitation to paternal grandparents if their son has not established legal paternity. Therefore, if paternity has not been established, then the court most likely will not recognize the paternal grandparent's request for petition.
Grandparents Must File Petition
The grandparent seeking visitation must follow the Indiana Code's procedural rules and petition the court for visitation. The petition is typically filed in the child's residential county, unless the parents are divorced, and the divorce was filed in a different Indiana venue. Then, you may file in the county where the divorce decree was filed. Since family laws may change frequently, you should not use this information as a substitute for competent legal advice, and you should contact an Indiana family law attorney.