                                                                  FILED
                                                             Jan 17 2017, 7:56 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court



ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
R. Lee Money                                               Larry F. Whitham
Greenwood, Indiana                                         Whitham, Hebenstreit &
                                                           Zubek, LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re: the Grandparent                                     January 17, 2017
Visitation of G.S.,                                        Court of Appeals Case No.
                                                           30A01-1608-DR-1801
J.S.,
                                                           Appeal from the Hancock Circuit
Appellant-Respondent,                                      Court
        v.                                                 The Honorable R. Scott Sirk,
                                                           Commissioner
M.S.,                                                      The Honorable Richard D. Culver,
                                                           Judge
Appellee-Petitioner
                                                           Trial Court Cause No.
                                                           30C01-1202-DR-246



Baker, Judge.




Court of Appeals of Indiana | Opinion 30A01-1608-DR-1801 | January 17, 2017               Page 1 of 6
[1]   J.S. (Mother) appeals the portion of the trial court’s order mandating that G.S.

      (Child) be permitted to have contact with other paternal relatives when

      participating in grandparent visitation with M.S. (Grandmother). Mother

      argues that there is no statutory authority for a trial court to order a child to

      have visitation with anyone other than a grandparent in the face of a parent’s

      objections. We agree, and reverse in part.


                                                      Facts
[2]   M.S. (Father) and Mother were married on October 19, 2002. Child, the only

      child born of the marriage, was born in November 2003. Throughout her life,

      Child had a close and loving relationship with Grandmother, her paternal aunt,

      M.L. (Aunt), and other paternal relatives. The parents divorced in March 2014.

      On May 2, 2015, Father committed suicide.


[3]   Following Father’s death, Mother began to curtail the time that Child spent

      with her paternal relatives. Mother and Aunt have a particularly acrimonious

      relationship, and Mother did not wish for Child to spend time with Aunt any

      longer. Aunt and Grandmother live together, making visitation between Child

      and Grandmother increasingly complicated. For example, Mother required

      that visits occurred outside of Grandmother’s home, which was difficult for

      Grandmother, who is elderly and has medical concerns. On June 5, 2015,

      Grandmother filed a petition for grandparent visitation.




      Court of Appeals of Indiana | Opinion 30A01-1608-DR-1801 | January 17, 2017   Page 2 of 6
[4]   In September 2015, Child and Mother moved to Tennessee because Mother

      received a job promotion necessitating the move. Following the move, Child’s

      contact with Grandmother and other paternal relatives decreased significantly.


[5]   The evidentiary hearing on Grandmother’s petition took place on June 1 and

      June 29, 2016. On August 1, 2016, the trial court issued an order granting the

      petition. The trial court ordered that one visit per month, for at least six hours

      at a time, is to occur between Grandmother and Child, and that Grandmother

      is entitled to overnights during the summer months. In pertinent part, the trial

      court also ordered as follows:

              [A]ll visitation between Grandmother and Granddaughter may
              occur at Grandmother’s Residence or at such other location as
              Grandmother may select . . . .


              . . . [A]ll residents of Grandmother’s house need not leave
              Grandmother’s Residence during visits between Grandmother
              and Granddaughter, nor shall they be required to do so.
              Furthermore, other members of Father’s extended family may be
              present in Grandmother’s Residence or at such other locations
              where Grandmother may choose to exercise visitation. This
              shall mean that Granddaughter is entitled to be present and to
              participate in paternal family reunions and other paternal family
              functions, to the extent those are scheduled during
              Granddaughter’s periods of visitation with Grandmother.


              . . . Grandmother shall be entitled . . . [to] weekly telephone
              conversations with Granddaughter. . . . During those
              conversations, it shall be permissible for Grandmother to be
              joined in the conversation by other members of the extended
              paternal family. Mother shall not restrict Granddaughter from
              speaking openly and freely during periods of visitation or
      Court of Appeals of Indiana | Opinion 30A01-1608-DR-1801 | January 17, 2017   Page 3 of 6
              telephone contact, nor shall Mother . . . restrict Granddaughter’s
              activities in reaction to Granddaughter’s maintenance of a loving
              relationship with Father’s family members.


      Appealed Order p. 11-12. Mother now appeals only the portions of the order

      mandating that Child be permitted to visit and have contact with her paternal

      relatives other than Grandmother.


                                    Discussion and Decision
[6]   To resolve this appeal, we must turn to the text of the Grandparent Visitation

      Act (GVA). As with all cases involving statutory interpretation, we apply a de

      novo standard of review to the trial court’s order. E.g., In re Visitation of C.R.P.,

      909 N.E.2d 1026, 1028 (Ind. Ct. App. 2009). The GVA was enacted in

      derogation of the common law; as such, it must be strictly construed. In re

      Guardianship of A.J.A., 991 N.E.2d 110, 113 (Ind. 2013).


[7]   It is well established that parents have a fundamental constitutional right to

      raise their children. In re Visitation of L-A.D.W., 38 N.E.3d 993, 998 (Ind. 2015).

      Indeed, the United States Supreme Court has described it as “perhaps the oldest

      of the fundamental liberty interests recognized by this Court.” Troxel v.

      Granville, 530 U.S. 57, 65 (2000). While GVAs around the country are

      routinely enforced, it is likewise acknowledged that a parent’s


              right of upbringing would be a sham if it failed to encompass the
              right to be free of judicially compelled visitation by “any party”
              at “any time” a judge believed he “could make a ‘better’
              decision’” than the objecting parent had done. The strength of a
              parent’s interest in controlling a child’s associates is as obvious as
      Court of Appeals of Indiana | Opinion 30A01-1608-DR-1801 | January 17, 2017      Page 4 of 6
              the influence of personal associations on the development of the
              child’s social and moral character.


      Id. at 78 (Souter, J., concurring) (footnote omitted).


[8]   In this case, it is undeniable that Grandmother is a “grandparent” for the

      purpose of the GVA, that she had standing to seek visitation with Child, and

      that the trial court acted within its authority in granting her petition to that

      extent. But it is likewise undeniable that Child’s other paternal relatives are not

      “grandparents.” The General Assembly has seen fit to carve out a narrow,

      limited exception to a parent’s right to raise her children for grandparents.

      There is no such exception for anyone else, including other relatives. Simply

      put, except for grandparents who qualify under the terms of the GVA, no other

      individuals can trump a parent’s right to determine who her child does, and

      does not, associate with. As such, the trial court erred by ordering that Mother

      permit Child to visit and maintain telephone contact with anyone other than

      Grandmother.


[9]   In reaching this result, we intend to express no opinion about the character of

      Child’s paternal relatives, or even whether being permitted to maintain contact

      with them would be in her best interests. Indeed, we encourage Mother to

      reconsider her position; considering all that Child has lost in her short life, it

      seems wise to permit her to maintain contact with anyone and everyone who

      loves and supports her. But while we encourage her to do so, we—and the trial

      court—are without authority to order her to do so. As such, we reverse the


      Court of Appeals of Indiana | Opinion 30A01-1608-DR-1801 | January 17, 2017   Page 5 of 6
       portions of the trial court’s order relating to all individuals other than

       Grandmother.1


[10]   The judgment of the trial court is reversed in part.


       Mathias, J., and Pyle, J., concur.




       1
         Although Grandmother spends much of her brief arguing that the trial court properly ordered that visits
       with Child may take place in Grandmother’s residence, in fact, Mother does not appeal that portion of the
       order. The trial court did not err by ordering that Child may visit with Grandmother in her home. Instead,
       the trial court erred by ordering Mother to consent to the presence of anyone else in the home (or wherever
       else the visits may take place) during the visits.

       Court of Appeals of Indiana | Opinion 30A01-1608-DR-1801 | January 17, 2017                       Page 6 of 6
