                                                                              FILED
                                                                         Nov 09 2016, 9:45 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Kelly D. Corne                                             Katharine Vanost Jones
      Corne & Corne, LLC                                         Evansville, Indiana
      Newburgh, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Amy L Brown,                                               November 9, 2016
      Appellant,                                                 Court of Appeals Case No.
                                                                 82A04-1602-JP-357
              v.                                                 Appeal from the Vanderburgh
                                                                 Superior Court
      Adrian Lunsford,                                           The Honorable Richard J.
      Appellee.                                                  D’Amour, Judge
                                                                 Trial Court Cause No.
                                                                 82D07-1109-JP-653



      Barnes, Judge.


                                                   Summary
[1]   Amy Brown appeals the trial court’s order granting visitation with Brown’s

      daughter, S.B., to Adrian Lunsford, Brown’s former boyfriend, who is

      unrelated to S.B. We reverse.




      Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016                  Page 1 of 17
                                                      Issues
[2]   Brown presents three issues for our review, which we restate as:


                       I.       whether the trial court had “jurisdiction” to order visitation
                                between Lunsford and S.B.;

                       II.      whether Lunsford should have joined S.B. as a necessary
                                party in the paternity action involving the parties’ child
                                A.L.; and

                       III.     whether the trial court abused its discretion by ordering
                                visitation between S.B. and Lunsford.

                                                      Facts
[3]   S.B. is Brown’s daughter. S.B. was born in January 2007, and her biological

      father is neither involved in her life nor listed on her birth certificate. Brown

      and S.B. moved into Lunsford’s house in Kentucky when S.B. was sixteen

      months old. When S.B. was two years old, Lunsford and Brown’s son A.L.

      was born. Brown and Lunsford were never married. When S.B. was four years

      old, Lunsford and Brown separated. Brown and the children moved to

      Vanderburgh County, Indiana.


[4]   After Brown and Lunsford separated, S.B. visited Lunsford when Lunsford had

      parenting time with A.L. for “six (6) months the first time around and then

      [Brown] pulled her out for almost two (2) years and then maybe a year, maybe

      a little over a year the second time around that she went . . . so a year and a half

      total.” Tr. p. 204. S.B. does not want to visit Lunsford. Brown discontinued

      S.B.’s visits with Lunsford “Because I noticed some behavioral changes in her .

      . . she would cry a lot, she was very confused, she was getting in trouble at

      Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016     Page 2 of 17
      school which was not . . . her at all.” Id. at 204-05. Brown testified, “With

      [S.B.] [the behavioral changes were] kind of a continual thing until she was no

      longer down and then, you know, all the issues I had with school and things

      like that ceased.” Id. at 206. Brown does not believe it is in S.B.’s best interests

      to visit Lunsford. At the time of the evidentiary hearing in this matter, Brown

      and Lunsford had been separated for over four years, and S.B. had not visited

      Lunsford since “last year some time.” Id. at 23. The trial court did not appoint

      a guardian ad litem, and it did not interview or otherwise hear from S.B.

      directly regarding visitation with Lunsford.


[5]   On September 15, 2011, the State filed a Petition for Order of Support in a

      paternity action captioned: “In re the Paternity of [A.L.] by next friend, Amy

      L. Brown, Petitioner and Adrian Lunsford[,] Respondent.” App. p. 12. The

      trial court ordered Lunsford to pay child support for A.L. Thereafter, Lunsford

      filed, and the trial court granted, a request for parenting time with A.L. The

      parties also filed an agreed entry regarding retroactive child support for A.L.

      and a mediated agreed order regarding parenting time between Lunsford and

      A.L. None of these motions and orders were related to S.B. In June 2015,

      Brown, S.B., and A.L. relocated to Tennessee.


[6]   In September 2015, Lunsford filed a “Petition to Modify,” in which he

      requested an order granting him parenting time with S.B., “his stepdaughter

      since he was the only parent the child had known and that the mother has

      refused any parenting time . . . .” App. p. 35. Neither Brown nor Lunsford

      moved to join S.B. as a party to the paternity action regarding A.L. On

      Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 3 of 17
      December 9, 2015, the trial court heard evidence related to Lunsford’s request

      for visitation with S.B.1 On December 10, 2015, the trial court granted

      Lunsford visitation with S.B. one weekend per month during Lunsford’s

      parenting time with A.L.


[7]   Brown then filed a motion to correct error and, simultaneously, a motion to

      reconsider and/or rehearing. In her motion to correct error, Brown raised, for

      the first time, arguments styled as improper forum, lack of jurisdiction,

      improper venue, and lack of standing. The trial court heard arguments on

      Brown’s motions and, on February 3, 2016, it denied them. Brown now

      appeals.


                                                     Analysis
                                   I. “Jurisdiction” to Order Visitation

[8]   Brown first contends the trial court lacked “jurisdiction” over S.B. because she

      was not a resident of Indiana and because “no action has been formally

      commenced.” Appellant’s Br. p. 11.


[9]   Brown does not contend the trial court lacked either subject matter or personal

      jurisdiction to hear this matter. Instead, she argues, generally, that the trial

      court did not have “jurisdiction” over S.B. and cites to a portion of Indiana’s




      1
        The trial court also heard evidence in order to determine custody and parenting time for A.L., child support
      issues, and to rule on Brown’s request to relocate. Brown does not challenge those portions of the trial
      court’s order.

      Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016                        Page 4 of 17
codification of the Uniform Child Custody Jurisdiction Act (“UCCJA”) to

support her argument. The relevant statute provides:


        (a) Except as otherwise provided in section 4 of this chapter, an
        Indiana court has jurisdiction to make an initial child custody
        determination only if one (1) of the following applies:


        (1) Indiana is the home state of the child on the date of the
        commencement of the proceeding or was the home state of the
        child within six (6) months before the commencement of the
        proceedings, and the child is absent from Indiana but a parent or
        person acting as a parent continues to live in Indiana.


        (2) A court of another state does not have jurisdiction under
        subdivision (1) or a court of the home state of the child has
        declined to exercise jurisdiction on the ground that Indiana is the
        more appropriate forum under section 8 or 9 of this chapter; and:


        (A) the child and the child’s parents, or the child and at least one
        (1) parent or person acting as a parent, have a significant
        connection with Indiana other than mere physical presence; and


        (B) substantial evidence is available in Indiana concerning the
        child’s care, protection, training, and personal relationships.


        (3) All courts having jurisdiction under subdivision (1) or 2) have
        declined to exercise jurisdiction on the ground that an Indiana
        court is the more appropriate forum to determine the custody of
        the child under section 8 or 9 of this chapter.


        (4) No court of any other state would have jurisdiction under the
        criteria specified in subdivision (1), (2), or (3).



Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 5 of 17
               (b) The jurisdictional requirements described in this section
               provide the exclusive jurisdictional basis for making a child
               custody determination by an Indiana court.


               (c) Physical presence of, or personal jurisdiction over, a party or a
               child is not necessary or sufficient to make a child custody
               determination.


[10]   “In 1990, our Supreme Court held that the jurisdictional limitations imposed by

       the UCCJA are not that of subject-matter jurisdiction, but rather are

       refinements of the ancillary capacity of a trial court to exercise authority over a

       particular case.” In re Marriage of Kenda and Pleskovic, 873 N.E.2d 729, 735 (Ind.

       Ct. App. 2007) (citing Williams v. Williams, 555 N.E.2d 142, 145 (Ind. 1990)),

       trans. denied. “This exercise of authority is waivable.” Williams, 555 N.E.2d at

       145.


[11]   Our supreme court has clarified “the nature of jurisdiction in Indiana trial

       courts” and held that the concept of “jurisdiction over a particular case” has

       been abolished. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457

       (Ind. 2012) (citing K.S. v. State, 849 N.E.2d 538, 540-41 (Ind. 2006)). In K.S.,

       our supreme court discussed the difference between procedural defects and “the

       law of jurisdiction.” K.S., 849 N.E.2d at 541. “Attorneys and judges alike

       frequently characterize a claim of procedural error as one of jurisdictional

       dimension. The fact that a trial court may have erred along the course of

       adjudicating a dispute does not mean it lacked jurisdiction.” Id.




       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 6 of 17
               To act in a given case, a trial court must possess both subject
               matter jurisdiction and personal jurisdiction. Subject matter
               jurisdiction exists when the Indiana Constitution or a statute
               grants the court the power to hear and decide cases of the general
               class to which any particular proceeding belongs. Personal
               jurisdiction exists when a defendant both has sufficient minimum
               contacts within the state to justify a court subjecting the
               defendant to its control, and has received proper notice of a suit
               against him in that court.


       R.L. Turner Corp., 963 N.E.2d at 457 (citing K.S., 849 N.E.2d at 538, 540).


               Thus, while we might casually say, “Judge Flywheel assumed
               jurisdiction,” or “the court had jurisdiction to impose a ten-year
               sentence,” such statements do not have anything to do with the
               law of jurisdiction, either personal or subject
               matter. Real jurisdictional problems would be, say, a juvenile
               delinquency adjudication entered in a small claims court, or a
               judgment rendered without any service of process. Thus,
               characterizing other sorts of procedural defects as “jurisdictional”
               misapprehends the concepts.


       K.S., 849 N.E.2d at 541-42 (citations omitted). “[A] party who was asleep at

       the wheel has a powerful incentive to couch a claim of procedural error as a

       jurisdictional defect either to circumvent the doctrine of waiver or to open up an

       avenue for collateral attack.” R.L. Turner Corp., 963 N.E.2d at 457 (citing K.S.,

       849 N.E.2d at 541).


[12]   Brown did not lodge her claims of procedural error (which she incorrectly

       framed as “jurisdiction” issues) in a timely manner. Instead, she waited until

       she filed her motion to correct error to raise them. Her arguments are,


       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 7 of 17
       therefore, waived. See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000)

       (holding generally that a party may not raise an issue for the first time in a

       motion to correct error).


                                              II. Necessary Party

[13]   Brown next argues that the trial court’s judgment is void or invalid because

       Lunsford did not join S.B. as a necessary party to the paternity action he used

       as a vehicle for requesting visitation with S.B. Brown directs us to Indiana

       Code Section 31-14-5-6, which provides that, in a paternity action, “The child,

       the child’s mother, and each person alleged to be the father are necessary parties

       to each action.” Brown also relies on In re the Paternity of H.J.F., 634 N.E.2d

       551 (Ind. Ct. App. 1994), in which this court held, “a paternity suit where the

       child has not been joined cannot result in a valid judgment.” Id. at 553. But in

       K.S. v. R.S., 669 N.E.2d 399 (Ind. 1996), our supreme court abrogated H.J.F.

       and held, “failure to name a child as a party in a paternity action does not

       necessarily render the judgment or agreement void, but merely voidable.” Id. at

       405. We need not determine how or if Lunsford’s failure to join S.B. in this

       matter affected the validity of the trial court’s judgment because Brown did not

       raise this issue in a timely manner.


[14]   Brown could have raised this issue during or even prior to the evidentiary

       hearing in this matter but instead waited until she filed her post-trial motion to

       correct error to do so. Brown’s argument, therefore, is waived. See Dunson v.

       Dunson, 769 N.E.2d 1120, 1126 (Ind. 2002) (concluding appellant waived his


       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 8 of 17
       necessary party argument by failing to move to join the indispensable party or

       dismiss action for lack of an indispensable party during trial proceedings).


                                 III. Visitation between Lunsford and S.B.

[15]   We next turn to the merits of Brown’s appeal. Brown contends the trial court

       abused its discretion by granting Lunsford third-party visitation with S.B. absent

       “sufficient evidence of a parental relationship or sufficient analysis regarding

       the best interest of the child.” Appellant’s Br. p. 13.


[16]   With regard to the issue of visitation between S.B. and Lunsford, the trial court,

       sua sponte, issued brief findings of fact and conclusions thereon. “In this

       scenario, the specific findings control only with respect to the issues they cover,

       while a general judgment standard applies to issues outside the court’s

       findings.”2 In re Marriage of Sutton, 16 N.E.3d 481, 484-85 (Ind. Ct. App. 2014).

       The trial court’s findings or judgment will be set aside only if they are clearly

       erroneous. Id. at 485. A finding is clearly erroneous only if there are no facts or

       inferences drawn therefrom to support it. Id.


[17]   Indiana trial judges are granted latitude and deference in family law matters.

       Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). “On appeal it is not enough

       that the evidence might support some other conclusion, but it must positively

       require the conclusion contended for by appellant before there is a basis for




       2
         The sole substantive issue in this case is controlled by the trial court’s findings of fact and conclusions
       thereon.

       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016                             Page 9 of 17
       reversal.” Id. (citation omitted). “Appellate judges are not to reweigh the

       evidence nor reassess witness credibility, and the evidence should be viewed

       most favorably to the judgment.” Id. (citation omitted).


[18]   Indiana courts have been cautious not to “open the door and permit the

       granting of visitation rights to a myriad of unrelated third persons . . . who

       happen to feel affection for a child.” Collins v. Gilbreath, 403 N.E.2d 921, 923

       (Ind. Ct. App. 1980) (footnote omitted). This court has “set out a two-part test

       for determining whether to grant visitation to a non-parent third party.” Worrell

       v. Elkhart Cnty Office of Family and Children, 704 N.E.2d 1027, 1028 (Ind. 1998).


               To establish grounds for visitation, a third party must
               demonstrate the existence of a custodial and parental relationship
               and that visitation would be in the children’s best interest. Under
               this regime, the first issue is standing and the second is the
               standard by which the question of visitation is adjudged after the
               cognizable right is established. Before a court may proceed to the
               substance of a visitation request, the party seeking visitation must
               satisfy the threshold requisite of a custodial and parental
               relationship.


       Id. (quotations omitted) (citations omitted).


[19]   “This court first addressed the issue of whether visitation may be awarded to an

       unrelated third party in Collins v. Gilbreath,” and affirmed the trial court’s order

       granting a stepfather visitation with his stepdaughters following the death of his

       wife, the girls’ mother. A.C. v. N.J., 1 N.E.3d 685, 694 (Ind. Ct. App. 2013).

       But Collins limited its holding “to the type of factual situation presented by this


       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 10 of 17
       case, i.e., where the party seeking visitation has acted in a custodial and

       parental capacity.” Collins, 403 N.E.2d at 924.


[20]   “This court’s early third-party visitation cases did not hold, however, that

       standing to seek visitation was limited to stepparents.” A.C., 1 N.E.3d at 695.

       “[W]hen third-party visitation was denied, it was not done solely on the basis

       that the person seeking visitation was not a stepparent.” Id. Nonetheless, since

       Collins, Indiana courts have closely guarded the ability of third parties to seek

       visitation with unrelated children. The Grandparent Visitation Act granted

       grandparents the right, in certain, limited circumstances, to request third-party

       visitation, and it also is well settled that stepparents may do so. In Worrell, our

       supreme court “substantially narrowed the scope of the right to seek third-party

       visitation” when it held that former foster parents lacked standing to seek third-

       party visitation. A.C., 1 N.E.3d at 697. Pursuant to Collins, this court has also

       declined to extend standing to third parties it concluded had not acted in a

       custodial or parental capacity. See Wolgamott v. Lanham, 654 N.E.2d 890 (Ind.

       Ct. App. 1995) (concluding mother’s ex-boyfriend was an “unrelated stranger”

       and had no “interest” in visitation with mother’s daughter because he did not

       allege he was a stepparent or even part of the child’s household during his six-

       year relationship with the child’s mother); Tinsley v. Plummer, 519 N.E.2d 752

       (Ind. Ct. App. 1988) (concluding child’s great aunt and great uncle did not

       establish the threshold requisite of custodial and parental relationship with a

       child given that they saw the child approximately five times per year, primarily




       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 11 of 17
       at family functions and for approximately three months when they had court-

       ordered, temporary custody).


[21]   Many years after Collins, in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054

       (2000), the Supreme Court “reiterated the age-old principle that the Due

       Process Clause of the Fourteenth Amendment to the United States Constitution

       protects ‘the fundamental right of parents to make decisions concerning the

       care, custody, and control of their children.’” Schaffer v. Schaffer, 884 N.E.2d

       423, 426 (Ind. Ct. App. 2008) (quoting Troxel, 530 U.S. at 66, 120 S. Ct. at

       2060). In Troxel, the Supreme Court held the state of Washington’s

       “breathtakingly broad” nonparental visitation statute—pursuant to which the

       trial court ordered grandparent visitation—was unconstitutional as applied to a

       mother because it infringed on her fundamental right to parent. Troxel, 530

       U.S. at 67, 120 S. Ct. at 206. It stated:


               The decisional framework employed by the [trial court] directly
               contravened the traditional presumption that a fit parent will act
               in the best interest of his or her child. In that respect, the court’s
               presumption failed to provide any protection for Granville’s
               fundamental constitutional right to make decisions concerning
               the rearing of her own daughters. In an ideal world, parents
               might always seek to cultivate the bonds between grandparents
               and their grandchildren. Needless to say, however, our world is
               far from perfect, and in it the decision whether such an
               intergenerational relationship would be beneficial in any specific
               case is for the parent to make in the first instance. And, if a fit
               parent’s decision of the kind at issue here becomes subject to
               judicial review, the court must accord at least some special
               weight to the parent’s own determination.


       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 12 of 17
       Id. at 69-70, 120 S. Ct. at 2062 (citations omitted). “The Supreme Court also

       noted that the trial court gave no weight to the fact that Granville had assented

       to some visitation.” Crafton v. Gibson, 752 N.E.2d 78, 86 (Ind. Ct. App. 2001).


[22]   “In Crafton v. Gibson, this Court, applying Troxel, held that Indiana’s

       Grandparent Visitation Statute was not unconstitutional on its face. Crafton

       additionally discussed certain factors courts must take into consideration when

       determining a child’s best interests under the Grandparent Visitation Statute.”

       Schaffer, 884 N.E.2d at 426 (citations omitted) (footnote omitted). “Thereafter,

       as a result of Troxel and Crafton, this Court, in McCune v. Frey, 783 N.E.2d 752

       (Ind. Ct. App. 2003), established certain substantive requirements for trial

       courts to consider when issuing findings and conclusions in grandparent

       visitation cases.” Id. McCune concluded:


               when a trial court enters a decree granting or denying
               grandparent visitation, it must set forth findings of fact and
               conclusions of law in said decree. In those findings and
               conclusions, the trial court should 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.


       McCune, 783 N.E.2d at 757; see also K.I. ex rel J.I. v. J.H., 903 N.E.2d 453 (Ind.

       2009) (approving the four McCune factors and requiring grandparent visitation

       order to address the factors in its findings and conclusions).


       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016     Page 13 of 17
[23]   In Schaffer, this court extended “the parental presumption and special weight

       accorded to parents in an initial grandparent visitation proceeding” to parents

       in “an initial third[-]party stepparent visitation proceeding.” Schaffer, 884

       N.E.2d at 427.3 We, too, extend the parental presumption and special weight

       afforded parents to the case before us. We think it is only logical that, if such a

       presumption and special weight favoring a parent’s choices for his or her child

       are appropriate in cases involving close familial and legal relationships between

       children and grandparents or stepparents, the same considerations should exist

       in cases such as the one before us.


[24]   In A.C. v N.J., this court, for the first time, held that a same-sex partner, who

       was not the child’s biological parent, had standing to seek visitation with the

       child. A.C., 1 N.E.3d at 697.


[25]   This case asks us to determine whether Lunsford, who dated Brown and lived

       with Brown and S.B. from the time S.B. was sixteen months old until she was

       four years old, had standing to seek third-party visitation with S.B. when she

       was eight-and-one-half years old. Like A.C., we acknowledge that custodial and

       parental relationships may exist with third parties other than stepparents and

       former same-sex partners. Id. However, in light of the very limited




       3
        We recognize that, in Richardson v. Richardson, 34 N.E.3d 696, 702 n.4 (Ind. Ct. App. 2015), this court
       concluded this statement from Schaffer is dicta because Schaffer reviewed a request to modify a stepparent
       visitation order, not an initial order. Accordingly, absent a declaration otherwise from our supreme court,
       Richardson declined to extend the parental presumptions set out in McClure to a stepparent visitation order.
       Richardson notwithstanding, we find Schaffer’s extension of McClure to be logical and helpful here.

       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016                       Page 14 of 17
       circumstances in which this court and our supreme court have allowed a third

       party to request visitation, we do not believe we may conclude Lunsford had

       standing to request visitation with S.B. in this case.


[26]   Lunsford directs us to A.C. and argues that “trial courts [have] the authority to

       extend visitation rights to third parties,” that such orders may benefit a child

       socially, psychologically, and culturally, and that “it is in the child’s best

       interests to maintain relationships with those who have acted in a parental

       capacity.” Appellee’s Br. pp. 20-21. We conclude that A.C. is inapplicable to

       the facts of this case and, therefore, not controlling. We first note that,

       although A.C. recognized a parental or custodial relationship may exist between

       a child and a third party other than a stepparent, it also limited its holding to

       “the particular factual circumstances of [that] case.” A.C., 1 N.E.3d at 697.


[27]   In A.C., Mother and Partner entered into a same-sex domestic relationship and

       lived together for several years. They had a commitment ceremony. They

       decided together to have a child and that Mother would carry the child

       conceived through artificial insemination. Partner was present at the child’s

       birth, and the three lived together as a family. The child referred to Mother and

       Partner as “Mama” and “Mommy,” respectively. Id. at 687. Mother listed

       Partner as the child’s co-parent on school enrollment paperwork, and the two

       discussed Partner adopting the child. When the child was two years old,

       Mother and Partner ended their relationship.




       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 15 of 17
[28]   A.C. is inapplicable to this case for two reasons. First, A.C. itself states that its

       holding is limited to that case’s “particular factual circumstances.” Id. at 697.

       Second, this court authored A.C. during a time when “the status of the law

       surrounding a lesbian partner’s right, if any, to enjoy the rights of a legal parent

       of a child born to her partner” was “uncertain.” Id. at 692. We explained in

       that case that the General Assembly had not offered any guidance on the legal

       questions surrounding such a circumstance, and “welcome[d] a legislative

       roadmap to help navigate the novel legal landscape in which we have arrived.”

       Id. “Until that happens,” A.C. explained, “we must do the best we can to

       resolve the issues that come before us.” Id. This court’s opinion in A.C. was

       one such effort. And, now, same-sex partners may marry, which was

       impossible in Indiana when A.C. was decided. See Obergefell v. Hodges, __ U.S.

       __, 135 S. Ct. 2584 (2015). In light of the unique factual circumstances and

       particular legal landscape (which, since Obergefell is now altogether different) in

       which A.C. was decided, we do not believe we can fairly extend its holding or

       rationale to this case. The cases are apples and oranges.


[29]   The trial court stated:

               4.     The Father has acted as a step-parent to the Mother’s child
               of another relationship, [S.B.]. In fact, the Father has been the
               only father-figure the child has ever known. [S.B.] has
               established a bond with the Father and his family that should be
               maintained and which is in [S.B.]’s best interest. The Father
               shall be entitled to visitation with [S.B.] one weekend per month
               during Father’s regular parenting time with his son, [A.L.].



       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 16 of 17
       App. p. 39. The trial court’s order does not take into consideration the decision

       that Brown, a fit parent, made to deny Lunsford visitation with S.B., nor is

       there any indication that Lunsford presented evidence compelling enough to

       overcome the presumption that Brown’s decision to terminate S.B.’s visitation

       with Lunsford was in S.B.’s best interest. In light of McCune and Shaffer, we

       conclude the trial court abused its discretion by ordering visitation between S.B.

       and Lunsford.


                                                  Conclusion
[30]   Brown has waived her contentions that the trial court erred when it adjudicated

       this matter pursuant to the UCCJA. Brown also waived her claim that

       Lunsford failed to join S.B. as a necessary party to this action. Nonetheless, we

       conclude the trial court abused its discretion when it ordered visitation between

       S.B. and Lunsford. We reverse.


[31]   Reversed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 82A04-1602-JP-357 | November 9, 2016   Page 17 of 17
