Visitation Rights

In Re the Guardianship of A.J.A. and L.M.A., Minor Children (Ind. July 18, 2013)

In this case, the Supreme Court addressed the Indiana statute allowing, under certain circumstances, grandparents to have visitation rights. The Court concluded that if the father of the children has murdered the mother, the father’s parents have no such rights.

In this case, a father murdered his wife in the presence of his children. The children’s uncle assumed custody and consented to the children's grandmother having some contact with the children. However, against explicit court orders, the grandmother took the children to visit their father in jail. The uncle then refused visitation, at which point the grandmother petitioned the trial court to allow her visitation. The trial court granted her request and the guardians appealed. The Court of Appeals reversed, and the Supreme Court granted transfer.

The Grandparent Visitation Statute currently states:
"A child’s grandparent may seek visitation rights if: (1) the child’s parent is deceased; (2) the marriage of the child’s parents has been dissolved in Indiana; or (3) subject to subsection (b), the child was born out of wedlock."
Ind. Code §31-17-5-1.

The grandmother in this case argued that her son, who was serving a 60-year jail sentence, should be considered “deceased” for purposes of the statute. The Supreme Court disagreed, explaining that statutes that are in derogation of the common law, such as the Grandparent Visitation Statute, must be strictly interpreted. The Court also noted the absurdity of the grandmother’s argument:
"In the present case, both of Grandmother’s theories would produce an absurd result. Her first theory, that her son is for all intents and purposes deceased, unfortunately, attempts to circumvent the strict interpretation the statute is due and therefore her argument fails. Her son is not dead. Her son is incarcerated with a sixty-year sentence for the murder of her grandchildren’s mother. In fact, it is Grandmother’s surreptitious attempts to facilitate communication between the children and [their father] that illustrate the absurdity of her argument. In this case, there is clearly a difference between those who, as Grandmother argues, are essentially dead because they are in prison and those who are dead. Father is not dead and Grandmother is trying to affect visitation between the murderer and the children, contrary to the express wishes of the Guardians. Grandmother’s other theory for grandparent visitation is that by virtue of the murder, the marriage was dissolved. This produces an even more nonsensical result. We cannot construe any scenario where the General Assembly intended the Grandparent Visitation Act to potentially require grandparent visitation by the mother of an individual who shot and killed the grandchildren’s other parent."

The Court then addressed the issue of whether the trial court’s initial order granting the grandmother visitation was void or merely voidable.
"A void judgment is one that, from its inception, is a complete nullity and without legal effect[.] By contrast, a voidable judgment is not a nullity, and is capable of confirmation or ratification."
Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998).

If the order were merely voidable, the guardians would have had to challenge the order through a direct appeal. If the order were void, the guardians could attack the order at any time. Because the guardians had not filed a direct appeal from the original order, the distinction in this case was critical.

The Court found that the Order was void. The Court’s analysis includes a helpful review of prior caselaw, including the Court of Appeals’ decisions of Kitchen v. Kitchen, 953 N.E.2d 646 (Ind. Ct. App. 2011), M.S. v. C.S., 938 N.E.2d 278 (Ind. Ct. App. 2010); and In re Paternity of P.E.M., 818 N.E.2d 32 (Ind. Ct. App. 2004); and the Supreme Court’s decision of K.S. v. State, 849 N.E.2d 538 (Ind. 2006).

This case is particularly important for two reasons. First, it provides certainty for an issue of grandparent visitation that, unfortunately, arises more often than anyone would like to acknowledge. Second, the Court provided some clarity on the difference between void and voidable orders, an issue that can be particularly important for appellate practitioners.

[1]According to the Department of Justice, approximately nine percent of all murders are murders of a spouse. See Family Violence Statistics: Including Statistics on Strangers and Acquaintances (U.S. D.O.J. 2002). In 2002, 787 spousal murders occurred.