Do grandparents have visitation rights for children with incarcerated parents?
Country relating to Question: United States
State (if USA): Indiana
My example parents are taking me to court I need to know where I stand and if I need an attorney. If so where do I find one?
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In Indiana, a grandparent may seek a visitation order with child only if (1) the child's parent is deceased; (2) the child's parents are divorced; or (3) the child was born out of wedlock, but only if the child's father has established paternity. I.C. § 31-17-5-1.
If the parents are married, regardless of whether one is incarcerated or not, they would not have the right to seek visistation. Now, if one of the 3 conditions stated above does apply, the right to visitation is not automatic. A grandparent must petition the court and seek the right to have visits with the grandchild(ren). A court may grant visitation if it determines that “visitation rights are in the best interests of the child.” I.C. § 31-17-5-2. When a court enters an order granting or denying grandparent visitation, it is required to set forth findings of fact and conclusions of law. McCune v. Frey, 783 N.E.2d 752, 757 (Ind.Ct.App.2003). And, in those findings and conclusions, the court must address:
(1) the presumption that a fit parent acts in his or her child's best interests; (2) the special weight that must be given to a fit parent's decision to deny or limit visitation; (3) whether the grandparent has established that visitation is in the child's best interests; and (4) whether the parent has denied visitation or has simply limited visitation. In re Guardianship of J.E.M., 870 N.E.2d 517, 520 (Ind.Ct.App.2007).
Even if granted visitation, a grandparent cannot reasonably expect to receive a visitation order that gives them substantial time. The Indiana Supreme Court has recognized that "that although the amount of visitation is left to the sound discretion of the trial court, “[t]he Grandparent Visitation Act contemplates only ‘occasional, temporary visitation’ that does not substantially infringe on a parent's fundamental right ‘to control the upbringing, education, and religious training of their children.’ ”KI ex rel. JI v. JH, 903 NE 2d 453 (Ind.2009).
If you have been served with a lawsuit regarding visitation or it is being threatened, you defnitely should speak with a family law attorney in your area familiar with grandparent rights. You can check to see if your county has a bar association -- many have lawyer referral programs to help people find a lawyer. You can also use online sites like www.avvo.com (which includes client and peer reviews) or www.lawyers.com to help you with your search.
If you would like any additional information or have more questions please don’t hesitate to ask!
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