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LawTalk, Attorney and Counselor at Law
Category: Family Law
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Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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Pro Se, currently involved in a Temporary Guardianship Cause

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Pro Se, currently involved in a Temporary Guardianship Cause in Indiana where I lost my child to her grandmother (father's side) for a little over a year. GAL came out with her report stating that I should get sole custody of my child and I have done everything and more than what she has asked of me. GM lawyer stated that he would like to work out an agreement regarding visitation. I read it over and GM is asking 2 weekends out of the month plus six weeks in the summer. I was willing to give her only 1 day, not an overnight, per month. GM wants to go to trial. I researched Indiana Code and I wanted to know if her request for visitation be a seperate matter requiring a petition OR can she ask for visitation in this Temporary Guardianship Case through a simple motion for trial?
Good morning,

I'm sorry to hear of your dilemma.

The below code section is the pertinent part as regards XXXXX XXXXX concerning the bringing of a petition for grandparent visitation, and allows the request to be presented in any action regarding custody of the child:

750 ILCS 5/607) (from Ch. 40, par. 607)
Sec. 607. Visitation.

(a-3) Grandparents, great-grandparents, and siblings of a minor child, who is one year old or older, have standing to bring an action in circuit court by petition, requesting visitation in accordance with this Section. The term "sibling" in this Section means a brother, sister, stepbrother, or stepsister of the minor child. Grandparents, great-grandparents, and siblings also have standing to file a petition for visitation and any electronic communication rights in a pending dissolution proceeding or any other proceeding that involves custody or visitation issues, requesting visitation in accordance with this Section. A petition for visitation with a child by a person other than a parent must be filed in the county in which the child resides. Nothing in this subsection (a-3) and subsection (a-5) of this Section shall apply to a child in whose interests a petition is pending under Section 2-13 of the Juvenile Court Act of 1987 or a petition to adopt an unrelated child is pending under the Adoption Act.

Because the grandparent has had custody of the child for a year, it will almost certainly be found to be in the best interests of the child that visitation be granted.

I agree with you that 2 weekends a month and 6 weeks is extreme for grandparent visitation and more appropriate for parental visitation. However, my suggestion would be to be a bit more giving and try to avoid the court having to decide this issue for you. You might concede to over night visitation of one weekend a month and 3 or 4 non-continuous weeks during the Summer. You will always be able to ask the court a year from now to decrease that time---ore even to completely do away with it if you want to relocate to a new state or hundreds of miles from where the grandparent resides.

Be sure to ask the court for permission to relocate out of state when ever you choose, so that you are not stuck fighting the grandparent as you would a spouse for the right to relocate.

I wish you and your child the best in 2011.

Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.


Doug

Customer: replied 5 years ago.
This is Illinois law. I am in Indiana.
Sorry for that.

Here is the applicable statute for Indiana:


IC 31-17-5-3
Petition
Sec. 3. A proceeding for grandparent's visitation must be commenced by the filing of a petition entitled, "In Re the visitation of _________". The petition must:
(1) be filed by a grandparent entitled to receive visitation rights under this chapter;
(2) be verified; and
(3) set forth the following:
(A) The names and relationship of:
(i) the petitioning grandparent or grandparents;
(ii) each child with whom visitation is sought; and
(iii) the custodial parent or guardian of each child.
(B) The present address of each person named in clause (A).
(C) The date of birth of each child with whom visitation is sought.
(D) The status under section 1 of this chapter upon which

the grandparent seeks visitation.
(E) The relief sought.

 

Normally, the grandparent would have to file a specific petition for visitation. However, your situation is slightly different in that the grandparent already has custody and it is you who are seeking to take custody. Because you have already placed the custody issue squarely before the court, the grandparent will be able to ask the court for visitation in lieu of full custody---and they will not be forced to file a separate action.

 

Now if the court action was not over custody of the child---but was one perhaps for an unpaid debt between you and the grandparent, they would not be allowed to use that to shoe horn in a request for visitation. But where custody is the primary consideration of the court to begin with--visitation, which is a form of custody, will be allowed to be interjected into the equation.

 

All of my suggestions as regards XXXXX XXXXX well as future modification of any visitation arrangement is still valid under Indiana law.

 

I wish you well.

 

 

Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.


Doug

 

 

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