                                                                 Aug 28 2015, 9:54 am




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Lisa M. Dillman                                            Heather George Myers
Miranda R. Richard                                         Greenwood, Indiana
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re: Grandparent Visitation of                           August 28, 2015
K.M.,                                                      Court of Appeals Case No.
F.M.,                                                      70A01-1503-MI-88
                                                           Appeal from the Rush Circuit
Appellant-Respondent,                                      Court
                                                           The Honorable David E. Northam,
        v.
                                                           Judge
                                                           Trial Court Cause No. 70C01-
K.F.,
                                                           1410-MI-335
Appellee-Petitioner.



Riley, Judge.




Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015               Page 1 of 21
                                    STATEMENT OF THE CASE

[1]   Appellant-Respondent, F.M. (Mother), appeals the trial court’s Order awarding

      grandparent visitation of her minor child, K.M. (Child), to Appellee-Petitioner,

      K.F. (Grandmother).


[2]   We affirm in part, reverse in part, and remand.


                                                     ISSUES

[3]   Mother raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court clearly erred in granting Grandmother’s petition for

      grandparent visitation; and

      (2) Whether the trial court abused its discretion by awarding an excessive

      amount of grandparent visitation.


                            FACTS AND PROCEDURAL HISTORY

[4]   Mother and H.F. (Father) are the biological parents of the Child, born in

      October of 2012. On Thanksgiving Day of 2012, Mother and Father took the

      one-month-old Child to meet the Child’s paternal Grandmother and other

      members of Father’s family for the first time. Thereafter, between November of

      2012 and May of 2013, Grandmother visited with the Child, who was always

      accompanied by Mother, approximately once or twice per month.


[5]   In May of 2013, Mother ended her relationship with Father as a result of

      Father’s ongoing substance abuse. Then, in June of 2013, Mother obtained a

      protective order against Father, which prohibited him from having any form of


      Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 2 of 21
      contact with Mother or the Child. Although the protective order did not apply

      to Grandmother, Grandmother made no attempts to contact Mother or the

      Child out of concern “that such contact would be viewed a[s] indirect contact

      by Father in violation of the protection order.” (Appellant’s App. p. 7). At

      some point, Father filed a petition to establish paternity, custody, and parenting

      time.


[6]   On February 13, 2014, by agreement of the parties, Father’s paternity was

      established, and he was awarded supervised parenting time and ordered to pay

      child support. Nine days later, Father passed away. At the time of Father’s

      death, Grandmother had not seen the Child in over nine months. However, a

      few days after Father’s passing, Mother and the Child met Grandmother at a

      restaurant where they spent several hours visiting, and Mother subsequently

      took the Child to Father’s “Celebration of Life” event where they visited with

      Grandmother and other members of Father’s family. (Tr. p. 25). Grandmother

      saw the Child approximately three more times between March and May of

      2014.


[7]   Grandmother’s last visit with the Child occurred on May 20, 2014. After

      Grandmother had asked about seeing the Child, Mother arranged for

      Grandmother to pick the Child up from daycare. Grandmother requested an

      overnight visit with the Child, but Mother explained that she was not

      comfortable with that and instructed Grandmother to return the Child by either

      8:00 p.m. (according to Mother) or 8:30 p.m. (according to Grandmother).

      Prior to this point, Grandmother had never spent any time alone with the

      Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 3 of 21
      Child. When Grandmother had not returned the Child by 8:00 p.m., Mother

      stated that she repeatedly tried to call and text Grandmother, who did not

      answer. At 8:30 p.m., Grandmother contacted Mother to state that she had lost

      track of time and was preparing to leave. A while later, Grandmother called

      Mother to inform her that they were en route but had forgotten the diaper bag.

      Mother stated that they could arrange to get the diaper bag at a later date

      because the Child needed to come home and go to bed. Mother claimed that

      instead of simply returning the Child at the agreed-upon time, each time

      Grandmother called, she repeatedly demanded that the Child be allowed to

      spend the night. Conversely, Grandmother stated that she only asked if the

      Child could spend the night when she and Mother were initially arranging the

      visit, and upon Mother’s denial, she did not reiterate her request.


[8]   According to Mother, Grandmother did not return with the Child until shortly

      before 11:00 p.m., whereas Grandmother claimed to have dropped the Child off

      at approximately 10:00 p.m. When Grandmother arrived with the Child, the

      Child was wearing only a diaper, was crying, and was covered in vomit.

      Grandmother explained that the Child had vomited while in her car seat, but

      she had been unable to clean the Child up having forgotten the diaper bag.

      According to Grandmother, the Child had been ill for several days. Mother,

      however, insisted that the Child was not sick and only vomited because

      Grandmother disregarded Mother’s instructions not to give the Child any milk.


[9]   Following the May 20, 2014 visit, Mother ceased communicating with

      Grandmother and did not permit any further visitation. On October 1, 2014,

      Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 4 of 21
       Grandmother filed a Verified Petition for Grandparent Visitation. On January

       8, 2015, the trial court conducted a hearing. On February 9, 2015, the trial

       court issued its Order granting Grandmother’s petition for grandparent

       visitation.


[10]   Mother now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

                                              I. Standard of Review

[11]   In matters of family law, our court accords “substantial deference” to the

       decisions of the trial court. In re Visitation of L-A.D.W., No. 82S01-1507-DR-

       452, 2015 WL 4597564, at *4 (Ind. July 30, 2015). Pursuant to Indiana Code

       section 31-17-5-6, the trial court supported its Order for grandparent visitation

       with specific findings of fact and conclusions thereon. As such, on appeal, our

       court applies the well-established, two-tiered Indiana Trial Rule 52 standard of

       review: first, we consider whether the evidence supports the trial court’s

       findings; second, we determine whether the findings support the judgment. In

       re Visitation of H.B., 21 N.E.3d 867, 870 (Ind. Ct. App. 2014) (quoting In re

       visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013)). We “shall not set aside

       the findings or judgment unless clearly erroneous, and due regard shall be given

       to the opportunity of the trial court to judge the credibility of the witnesses.”

       Ind. Trial Rule 52(A). We will find clear error if “there is no evidence

       supporting the findings or the findings fail to support the judgment[,]” or if the

       trial court “applies the wrong legal standard to properly found facts.” K.I. ex rel.

       J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009).
       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 5 of 21
                                         II. Grandparent Visitation Act

[12]   The Fourteenth Amendment to the United States Constitution “‘provides

       heightened protection against government interference with certain

       fundamental rights and liberty interests[,]’” including the fundamental right of

       parents to make decisions concerning “the care, custody, and control of their

       children.” Troxel v. Granville, 530 U.S. 57, 65 (2000) (quoting Washington v.

       Glucksberg, 521 U.S. 702, 719 (1997)). On the other hand, it is well settled that

       “grandparents do not have the legal rights or obligations of parents and do not

       possess a constitutional liberty interest with their grandchildren.” K.I. ex rel.

       J.I., 903 N.E.2d at 462. Nevertheless, the Indiana General Assembly

       recognized “that ‘a child’s best interest is often served by developing and

       maintaining contact with his or her grandparents.’” Id. Thus, the General

       Assembly enacted the Grandparent Visitation Act and “balanced two

       competing interests: ‘the rights of the parents to raise their children as they see

       fit and the rights of grandparents to participate in the lives of their

       grandchildren.’” Id.


[13]   The Grandparent Visitation Act provides:


               (a) 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



       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015     Page 6 of 21
                     (3) subject to subsection (b), the child was born out of
                         wedlock.


               (b) A court may not grant visitation rights to a paternal
                   grandparent of a child who is born out of wedlock under
                   subsection (a)(3) if the child’s father has not established
                   paternity in relation to the child.


       Ind. Code § 31-17-5-1. If a grandparent has standing to seek visitation under

       this statute, “[t]he court may grant visitation rights if the court determines that

       visitation rights are in the best interests of the child.” I.C. § 31-17-5-2(a).


[14]   In order to protect a parent’s fundamental right to direct her child’s upbringing,

       the trial court is required to issue findings of fact and conclusions thereon that

       address the following four factors:


                     (1) a presumption that a fit parent’s decision about
                         grandparent visitation is in the child’s best interests (thus
                         placing the burden of proof on the petitioning
                         grandparents);


                     (2) the “special weight” that must therefore be given to a fit
                         parent’s decision regarding nonparental visitation (thus
                         establishing a heightened standard of proof by which a
                         grandparent must rebut the presumption);


                     (3) “some weight” given to whether a parent has agreed to
                         some visitation or denied it entirely (since a denial means
                         the very existence of a child-grandparent relationship is at
                         stake, while the question otherwise is merely how much
                         visitation is appropriate); and



       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015         Page 7 of 21
                     (4) whether the petitioning grandparent has established that
                         visitation is in the child’s best interests.


       In re Visitation of M.L.B., 983 N.E.2d at 586. “The first three required factors

       implement the constitutionally protected right of fit parents to make child

       rearing decisions, and reflect the significant burden of proof grandparents must

       carry to override those decisions.” Id. at 587. As to the fourth factor, in

       determining the child’s best interests, “the court may consider whether a

       grandparent has had or has attempted to have meaningful contact with the

       child.” I.C. § 31-17-5-2(b). Our courts have consistently found “that a child’s

       best interests do not necessarily override” a parent’s right to control his or her

       child’s upbringing. In re Visitation of M.L.B., 983 N.E.2d at 586.


[15]   In concluding that court-ordered grandparent visitation was warranted, the trial

       court found that “Mother does not believe it is important for the [C]hild to see

       Paternal Grandmother” and has “no intentions of establishing or fostering a

       relationship between the [C]hild and Paternal Grandmother.” (Appellant’s

       App. p. 8). Rather, the trial court found that Mother “will leave it . . . up to the

       [C]hild to determine if she wants a relationship with Paternal Grandmother

       when the [C]hild is old enough to make that decision.” (Appellant’s App. p. 8).

       Ultimately, the trial court determined that “re-establishing such a relationship

       [with Grandmother] is in the best interest of the . . . [C]hild.” (Appellant’s

       App. p. 12).




       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015    Page 8 of 21
                                              A. Order for Visitation

[16]   Mother claims that the trial court erred by granting Grandmother’s petition for

       visitation with the Child because even though

               the trial court acknowledges the four factors in its [O]rder, . . . the
               trial court’s analysis under each factor reveals that Mother was
               not properly afforded the presumption that her decision to deny
               visitation was in Child’s best interest, nor was her decision given
               special weight as is required by law. The [O]rder does not
               discuss the lion share of Mother’s evidence showing that Paternal
               Grandmother made irresponsible choices with regard to Child
               that led Mother to believe if visitation continued, Paternal
               Grandmother would continue to make poor choices with Child’s
               health, safety and emotional well-being.


       (Appellant’s Br. p. 6). In particular, Mother argues that the trial court omitted

       any findings as to “Grandmother’s irresponsible choices regarding the Child’s

       health care”—i.e., allegedly giving the Child milk contrary to Mother’s

       instructions; Grandmother’s failure to return the Child at the agreed-upon time;

       and the fact that Grandmother jeopardized the Child’s safety by encouraging

       Father’s interaction with the Child despite Grandmother’s knowledge that

       Father had “a problem” with drug abuse. (Appellant’s Br. p. 6; Tr. p. 53). The

       trial court, however, specifically stated that it had given “special weight to

       Mother’s decision” to discontinue visitation but concluded:


               If we give Mother the benefit of all presumptions and special
               weight to her decision to terminate Paternal Grandmother’s
               rights, she only proved that Paternal Grandmother intentionally
               returned the [C]hild late and made a normal grandparent mistake


       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015    Page 9 of 21
               on one occasion and used poor judgment in encouraging a
               relationship between [the Child] and her [F]ather.


       (Appellant’s App. p. 10).


[17]   At the outset, notwithstanding the trial court’s language, we note that it was not

       incumbent upon Mother to prove that she acted in the Child’s best interests; this

       fact is presumed and “deserves special weight under the law.” In re Visitation of

       C.L.H., 908 N.E.2d 320, 329 (Ind. Ct. App. 2009). Nor was Mother obligated

       to prove misconduct by Grandmother to justify discontinuing visitation. See In

       re Visitation of C.S.N., 14 N.E.3d 753, 759 (Ind. Ct. App. 2014). At the same

       time, “the special weight requirement does not require a trial court to take at

       face value any explanation given by a parent.” Spaulding v. Williams, 793

       N.E.2d 252, 260 (Ind. Ct. App. 2003). “It is the trial court’s prerogative to

       listen to the evidence and determine, in light of that evidence, whether a

       parent’s alleged justification for denying or restricting visitation with

       grandparents holds water.” Hicks v. Larson, 884 N.E.2d 869, 875 (Ind. Ct. App.

       2008), trans. denied. On review, our court will not interfere with the trial court’s

       determinations of evidentiary weight and witness credibility. Spaulding, 793

       N.E.2d at 260.


[18]   Here, the trial court found that “Mother testified the reason she cut off contact

       with Paternal Grandmother was because Mother felt disrespected by Paternal

       Grandmother as a result of Paternal Grandmother’s failure to return the [C]hild

       on time.” (Appellant’s App. p. 8). The trial court also found that “Mother

       further complained of Paternal Grandmother’s judgment due to her
       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 10 of 21
encouragement of visitation between the [C]hild and Father[] even though there

was evidence that Father had drug addiction issues.” (Appellant’s App. p. 8).

Yet, the trial court found that these “reasons for denying visitation with

Paternal Grandmother were unreasonable and not in the [C]hild’s best

interest.” (Appellant’s App. p. 10). Instead, the trial court determined that

Mother had an ulterior motive for cutting off contact with Grandmother,

finding that “Mother testified that her fiancé’s family is sufficient family for the

[C]hild and that the [C]hild does not need to know or have a relationship with

Father’s family.” (Appellant’s App. pp. 8-9). Therefore, the trial court

concluded that Grandmother rebutted the presumption that Mother’s decision

was in the Child’s best interest, stating:

        This court does recognize the presumption that a fit parent acts in
        his or her child’s best interest. If Mother’s “plan” for her [Child]
        is successful, she will have no knowledge that her Father exists;
        and in fact, will replace her [F]ather with another man and his
        family. Mother’s plan does account for the presumption that as
        the [C]hild grows older, she will begin to question facts she has
        been told are true. Whenever that time comes Mother is willing
        to allow her [C]hild the right to have a relationship with Paternal
        Grandmother. At that point Mother is willing to introduce into
        her [C]hild’s life a total stranger to answer her questions, her
        Paternal Grandmother. Mother’s plan is predicated upon hiding
        facts from her [C]hild at least until she is older. Certainly some
        of these facts will be uncomplimentary of her Father, and very
        possibly her Mother. The [c]ourt concludes that Mother’s plan
        serves Mother’s best interests by allowing her to ignore a part of
        her life that she considers unpleasant [by] completely ignoring the
        [C]hild’s right to a relationship with her Paternal Grandmother.
        Courts have recognized it is in the best interest of a child to have
        a relationship with their grandparent.

Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 11 of 21
       (Appellant’s App. pp. 9-10).


[19]   In general, we presume that “trial courts know and follow the applicable law.”

       Ramsey v. Ramsey, 863 N.E.2d 1232, 1239 (Ind. Ct. App. 2007). “[T]his

       presumption can be overcome if the trial court’s findings lead us to conclude

       that an unjustifiable risk exists that the trial court did not follow the applicable

       law.” Id. Our court has previously overturned a grandparent visitation order

       where the trial court omitted pertinent, undisputed evidence from its findings,

       thereby “shak[ing] our confidence that it actually afforded” the parental

       presumption. See In re Visitation of C.S.N., 14 N.E.3d at 759. Here, however,

       the trial court specifically considered in its findings that Grandmother had

       encouraged Father to establish paternity and to maintain a relationship with the

       Child despite his significant substance abuse problem. Regarding the final visit,

       the trial court also found that “[t]he [C]hild was not returned in a timely

       manner. Paternal Grandmother made the mistake of forgetting the diaper bag

       while trying to get the [C]hild home. Matters were made worse by the [C]hild

       getting sick.” (Appellant’s App. p. 7). Thus, it is clear that the trial court did

       not simply ignore this evidence as Mother contends. Furthermore, a review of

       the record reveals that there was inconsistent evidence regarding whether the

       Child had been ill leading up to her visit with Grandmother or whether she

       vomited solely because Grandmother disregarded Mother’s instructions about

       giving the Child dairy products; the parties offered conflicting testimony as to

       whether Grandmother refused to answer Mother’s calls and whether

       Grandmother repeatedly demanded that the Child be allowed to spend the


       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 12 of 21
       night; and the trial court specifically found that “[t]here was contradictory

       evidence as to whether the lateness of the return was due to mere oversight or

       intentional acts by . . . Grandmother in contradiction of Mother’s request.”

       (Appellant’s App. p. 8). It is evident that the trial court found Grandmother’s

       testimony more credible, and it was well within the discretion of the trial court

       to discredit Mother’s explanation for terminating visitation.


[20]   Mother also challenges the trial court’s conclusion that she was not justified in

       terminating visitations because she was trying “to ignore a part of her life that

       she considers unpleasant.” (Appellant’s App. p. 10). According to Mother,

               [t]his conclusion ignores the efforts Mother had made in the past
               to allow for Paternal Grandmother and Child to spend time
               together and for them to try to forge a bond. If Mother was
               simply trying to ignore part of her life, Mother would not have
               allowed Paternal Grandmother to visit in the past.


       (Appellant’s Br. p. 11). One of the factors the trial court must address is

       whether a parent has entirely denied or simply limited a grandparent’s contact

       with a grandchild. In re Visitation of M.L.B., 983 N.E.2d at 586. In this case, the

       trial court acknowledged that Mother facilitated visits between the Child and

       Grandmother for the first seven months of the Child’s life and on several

       occasions following Father’s death. However, following the May 20, 2014 visit,

       Mother discontinued all forms of contact between Grandmother and the Child

       and testified resolutely during the hearing that she has no intent to permit

       further visitation until the Child is old enough to decide for herself. Because of

       Mother’s complete denial of visitation, “‘the case for judicial intervention’ is

       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 13 of 21
       strengthened.” In re Visitation of C.S.N., 14 N.E.3d at 762 (quoting In re

       Visitation of M.L.B., 983 N.E.2d at 587). Moreover, Mother does not challenge

       the trial court’s other findings regarding her intent to replace Father’s family

       with that of her fiancé, so we cannot say that it was clear error for the trial court

       to infer that Mother sought to eliminate Father’s family from her life and the

       Child’s life. See Spaulding, 793 N.E.2d at 260 (finding sufficient evidence to

       support the trial court’s conclusion that the father’s motivations for restricting

       grandparent visitation were selfish).


[21]   Mother further asserts that Grandmother “has not demonstrated consistent

       effort to have a meaningful role in the Child’s life.” (Appellant’s Br. p. 10).

       During the hearing, Grandmother conceded that she had never sent the Child a

       birthday card, Christmas card, or Christmas gift, and Grandmother could not

       recall the Child’s birthdate. While it is a factor that may be considered,

       whether Grandmother attempted to have meaningful contact with the Child “is

       not the touchstone for determining the child’s best interests.” In re Visitation of

       C.L.H., 908 N.E.2d at 328. The trial court found that Grandmother had

       regularly visited the Child during the first seven months of her life but did not

       attempt to communicate with the Child while the protective order was in force

       out of fear that it would seem like indirect contact on Father’s part. During the

       hearing, Grandmother testified that

               [t]here’s so much love and support within our family and . . . we
               want to be there for [the Child]. . . . I think about the questions
               that she’ll have too. I’m sure there’ll be many of them, but you
               know . . . I shudder to think and it keeps me, I won’t say worried,

       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 14 of 21
               but I pray a lot about her not having to ask, you know, who was
               my daddy and, um, who was my daddy’s family and didn’t they
               want me or didn’t they love me . . . . I mean there’s a piece
               missing, and I would think with the family, with her being
               involved with her [Father’s] family those questions would be
               more minimized, and, um, it would have a more positive effect
               versus the negative effect of always wondering why.


       (Tr. p. 12). The trial court found that “Mother acknowledged that Paternal

       Grandmother would be the primary source of information for the [C]hild about

       Father and his family” and accordingly concluded that it was in the Child’s best

       interests to have the opportunity to “benefit from a relationship with Father’s

       family and specifically Paternal Grandmother.” (Appellant’s App. p. 12).

       Therefore, we cannot say that the trial court clearly erred in awarding

       grandparent visitation to Grandmother.


                               B. Amount of Grandparent Visitation Awarded

[22]   Mother also claims that the trial court abused its discretion in the amount of

       visitation that Grandmother was awarded. The Grandparent Visitation Act

       does not specify “what amount of visitation is appropriate for a trial court to

       award[] after it has been determined that court-ordered visitation is merited.”

       In re Visitation of L-A.D.W., No. 82S01-1507-DR-452, 2015 WL 4597564, at *4.

       Instead, the amount of visitation is generally a matter that is entrusted “to the

       sound discretion of the trial court.” K.I. ex rel. J.I., 903 N.E.2d at 462.

       Nonetheless, it is clear that “[t]he Grandparent Visitation Act contemplates

       only ‘occasional, temporary visitation’ that does not substantially infringe on a



       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015     Page 15 of 21
       parent’s fundamental right ‘to control the upbringing, education, and religious

       training of their children.’” Id. (alteration in original).


[23]   In the present case, the trial court ordered:

               1. Paternal Grandmother . . . shall have unsupervised visitation
               with [the Child] as follows:

                  a. In an effort to take advantage of Mother living in Indiana
               for the next few months and give the [C]hild a chance to become
               reacquainted with Paternal Grandmother, the parties will follow
               the Indiana Parenting Time Guidelines[] for the period of time
               Paternal Grandmother is in Indiana each month. The first
               month’s visits shall be with Mother present. After that the first
               visit each month shall be with Mother present (sic).

                 b. Live video conference/chatting via Skype, Face-Time or
               some other similar media twice a month.

                  c. After Mother and her fiancé are reassigned [based on the
               fiancé’s military assignment,] visitation shall take place one
               weekend day a month from 9:00 a.m. to 8:00 p.m. until the
               [C]hild reaches four (4) years of age.

                  d. After the [C]hild reaches the age of four (4), one weekend
               overnight a month with 9:00 a.m. for the pick-up time and 6:00
               p.m. for the return time. Paternal Grandmother shall have the
               option of extending overnights to two (2) consecutive overnights
               after the [C]hild reaches the age of five (5).

                  e. If Paternal Grandmother is scheduled to be in the [C]hild’s
               proximity in excess of the actual visitation time she shall have
               three (3) hours with the [C]hild for every additional forty-eight
               hours she is in the area. The exact time shall be agreed to by the
               parties.


       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 16 of 21
                  f. The parties shall make every effort to schedule the monthly
               visits near birthdays or holidays.

                  g. After the [C]hild reaches the age of six (6), Paternal
               Grandmother shall have extended visitation during spring or
               summer break of the [C]hild. The parties shall agree to the
               details.

               2. If the parties are unable to agree[,] the visitation shall be seven
               (7) days in length and shall commence within seven (7) days of
               the beginning of summer vacation. In no event shall this
               visitation conflict with the Mother’s family vacations nor the
               [C]hild’s activities.

               3. The parties shall keep each other advised of their address and
               contact information at all times. Paternal Grandmother shall
               keep Mother advised of the [C]hild’s location during visitation.

               4. If Mother and the [C]hild relocate outside the [S]tate of
               Indiana then Mother shall give Paternal Grandmother reasonable
               advance notice of when the [C]hild will be in the State of
               Indiana, so Paternal Grandmother may try to arrange her
               visitation while the [C]hild is in the State of Indiana.

               5. Paternal Grandmother shall have visitation at all other times
               as agreed upon by the parties.

               6. Paternal Grandmother shall be responsible for all
               transportation costs of visitation.


       (Appellant’s App. pp. 12-14).


[24]   Mother contends that “it is prima facie error to grant a grandparent visitation

       rights nearly equivalent to those of a non-custodial parent.” (Appellant’s Br. p.

       11). Our supreme court has previously recognized that “sole reliance upon the

       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 17 of 21
       [Indiana Parenting Time] Guidelines is impermissible.” In re Visitation of L-

       A.D.W., No. 82S01-1507-DR-452, 2015 WL 4597564, at *4. Yet, a visitation

       schedule that is similar to the Parenting Time Guidelines, without more, does

       not “require finding an abuse of discretion.” Id. at *6. Whether the trial court

       has abused its discretion in crafting a visitation schedule “is best determined

       upon the specific circumstances of each case.” Id.


[25]   We agree with Mother that the trial court’s order for the parties to follow the

       Indiana Parenting Time Guidelines up until the point that Mother and the

       Child relocate—however long that period of time may be—is excessive. Unlike

       In re Visitation of L-A.D.W., where the grandparents provided primary care for

       the child and even lived with the child for significant periods of time to help

       raise her, in this case, Grandmother was not significantly or consistently

       involved in the Child’s daily life. See id. at *7. For the first seven months of the

       Child’s life, Grandmother enjoyed only sporadic visits with the Child, during

       which Mother was always present. Grandmother has never spent more than a

       few hours with the Child during any given visit and has never had the Child

       overnight, and there have been significant gaps in Grandmother’s contact with

       the Child. During the hearing, Grandmother explained that she has never been

       around during the Child’s bedtime to know the Child’s nightly routine. Thus,

       the specific circumstances of this case do not warrant a visitation schedule that

       is similar to the parenting time of a non-custodial parent. We therefore vacate

       the portion of the trial court’s Order awarding visitation in accordance with the

       Parenting Time Guidelines.


       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 18 of 21
[26]   Mother also asserts that the trial court abused its discretion because the amount

       of visitation awarded exceeded the amount requested by Grandmother. During

       the hearing, Grandmother asked that she be allowed to visit with the Child one

       weekend day every four to six weeks, one day near Christmas, and one day

       near the Child’s birthday. Following an initial period of visitation under the

       Parenting Time Guidelines, the trial court ordered regular visitation that would

       increase in duration based on the Child’s age, eventually reaching monthly

       visits that consist of two overnights and at least one full week during the Child’s

       spring or summer vacation. In In re Visitation of M.L.B., 983 N.E.2d at 587, our

       supreme court determined that, although it was within the discretion of the trial

       court “to order some degree of visitation to ensure that [the child’s] relationship

       with [the grandparent] would continue, the amount of visitation awarded far

       exceed[ed] the parties’ earlier pattern. It even exceed[ed] what [the

       grandparent] requested.”


[27]   In general, the parties’ earlier pattern of visitation “suggests an amount of

       visitation that might be awarded without unduly interfering in Mother’s

       fundamental right to direct [the Child’s] upbringing.” Id. While Grandmother

       previously enjoyed non-overnight visits with the Child once or twice per month,

       we recognize that such an arrangement may not be feasible going forward

       without substantially infringing on Mother’s constitutional rights as a fit parent.

       Mother testified that upon her fiancé’s graduation from the United States Army

       Ranger School, they planned to get married, after which she and the Child

       would relocate depending on their military assignment. At the time of the


       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 19 of 21
       hearing, Mother stated that they would likely be relocated either overseas to

       Italy or to Seattle, Washington. Although the trial court ordered that

       Grandmother would be responsible for all travel costs associated with the

       visitation, it does not appear that the trial court took into consideration the

       logistics of requiring a visitation schedule that would involve cross-country or

       trans-Atlantic travel for a toddler every month. This would undoubtedly place

       an unreasonable burden on both Mother and the Child. We therefore remand

       with instructions for the trial court to craft a new visitation schedule that

       contemplates the distance involved and the effect that traveling will have on the

       young Child, while also respecting Mother’s authority to direct her Child’s

       upbringing.


[28]   Finally, Mother challenges the trial court’s directive requiring Grandmother

       and the Child to engage in live video conferencing two times each month.

       According to Mother, “[t]here is no such requirement in the Guidelines

       afforded to [a] non-custodial parent”; thus, “Grandmother is getting more

       opportunities than a non-custodial parent would be afforded for parenting time

       when distance is a major factor.” (Appellant’s Reply Br. p. 6). We disagree.

       The Indiana Parenting Time Guidelines provide that parents “shall have

       reasonable phone access to their child” and the “right to communicate

       privately” by mail or other electronic communications without interference by

       the other parent. Ind. Parenting Time Guideline § I(A)(3)-(5), (7). In turn,

       “[t]he Grandparent Visitation Act does not address contact between

       grandparents and grandchildren other than ‘visitation,’ a term that our


       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 20 of 21
       legislature has not defined.” Spaulding, 793 N.E.2d at 263. We have previously

       found that “any contact or communication ordered, other than visitation,

       should be applied narrowly to preserve and protect a parent’s rights.” Id. In

       this case, the trial court ordered live video-chatting between Grandmother and

       the Child twice per month, but it did not otherwise restrict Mother’s authority

       to set reasonable limits on these interactions. See id. at 264 (finding the trial

       court’s order for the grandparents to be able to send written communications to

       the child without parental interference was overly broad as it “borrow[ed]

       language wholesale from the Parenting Guidelines” and “erroneously treat[ed]

       [g]randparents as if they were parents”). Therefore, we find no abuse of

       discretion regarding the order for twice-monthly video-chatting.


                                                CONCLUSION

[29]   Based on the foregoing, we conclude that the trial court did not err in granting

       Grandmother’s petition for grandparent visitation. We further conclude that

       the trial court abused its discretion by ordering a visitation schedule that is

       excessive and unduly burdensome on both Mother and the Child.


[30]   Affirmed in part, reversed in part, and remanded.


[31]   Friedlander, J. and Brown, J. concur




       Court of Appeals of Indiana | Oppinion 70A01-1503-MI-88 | August 28, 2015   Page 21 of 21
