Wilder-Newland v. Kessinger

VAIDIK, Judge,

dissenting.

A fit parent's decision to allow her children to visit with their grandparents is entitled to be given weight by a trial court when it decides whether grandparent visitation is in the best interest of the grandchildren. Because the majority renders this well-established legal principle meaningless, I respectfully disagree with my colleagues.

Grandmother, a high school English teacher, has the misfortune of being the mother of a son who committed atrocities against her grandchildren's Mother. Her son's conduct landed him in prison. Grandmother consequently desired to continue her relationship with her grandehil-dren, and to that end, she filed a petition with the trial court requesting visitation with her grandchildren. Mother did not oppose visitation. Instead, Mother sought only to limit visitation with Grandmother. The trial court, in its findings denying all grandparent visitation, concluded that Mother opposed court-ordered visitation. The evidence does not support this finding.

A careful review of the fifty-one-page transcript of the hearing on this issue shows that the dispute between the parties was not over access to the children, but instead over how often and how much visitation would occur. For example, during her testimony, Mother stated, "I am comfortable with [Grandmother] having visitation now, but I am not comfortable with the overnights and the week away and stuff ... I'm not comfortable with that at all." Tr. p. 34 (ellipses in original). When asked if Mother was asking the court to limit visitation between Grandmother and the children, Mother said yes. Id. Mother later reiterated, "And like I said before, I don't have a problem with visitation but I do not want overnights ... especially initially." Id. at 40 (ellipses in original). To cap the proceedings, in closing argument, Mother's counsel argued that "[Mother] is not asking that [the children] are precluded from seeing their grandmother ... she is just asking that it be very limited." Id. at 47 (ellipses in original).

Despite all evidence to the contrary, in its findings of fact entered two months after the hearing, the court concluded that Mother opposed visitation. This finding was clearly erroneous. Because Mother represented no less than four times that she did not oppose visitation, the evidence does not support the trial court's finding to that effect.

This was not the only error the trial court committed, however. The trial court afforded "special weight" to Mother's supposed opposition to visitation. Appellant's App. p. 9. In doing so, the court recognized that Mother was a fit parent, and that as a fit parent, Mother was exercising "her right as a parent to make decisions concerning the custody, care[,] and control of her children...." Id. Yet, Mother's decision was not to eliminate visitation but to limit it. As a result of this series of errors, Mother, an undisputedly fit parent, made a decision to permit limited visitation, which was disregarded. This was clear error in light of our historic defer*567ence to the decisions made by fit parents regarding the upbringing of their children.

The majority contends that it is "not dispositive whether the trial court erred in concluding that Mother opposed any and all court-ordered visitation." Op. at 562. Their reasoning continues that there is other evidence besides Mother's alleged opposition to visitation that supports the trial court's conclusion that no visitation is in the best interest of the children, and on that basis, they conclude that this court must affirm. I disagree because to do so renders meaningless our case law that holds that a trial court must give consideration to a fit parent's decision to allow grandparent visitation.

It is well settled that when determining a child's best interest under Indiana's Grandparent Visitation Statute, courts are to presume that a fit parent's decision is in the child's best interest. Crafton v. Gibson, 752 N.E.2d 78, 96 (Ind.Ct.App.2001) (citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). When a parent agrees to some visitation, a trial court should afford some weight to that fact. Id. at 97. Here, Mother clearly stated that she did not oppose limited visitation between Grandmother and the children. See Tr. p. 34, 40, 47. Because Mother is a fit parent, the trial court was to presume that this decision was in the children's best interest. Grandmother did not receive the benefit of that presumption; instead, the trial court gave special weight to the erroneous conclusion that Mother opposed all visitation.

I understand the majority's position that we give substantial deference to a trial court's discretion in family-law matters. But the trial court does not have the dis-eretion to be wrong, and here the court was clearly wrong regarding a pivotal finding, which it then gave special weight to in eliminating Grandmother's visitation completely. If we ignore this error as irrelevant, then we throw out the concept that a fit parent's decision is entitled to special weight by the trial court in making grandparent-visitation decisions. I am not willing to do that.

Grandparents do not have a constitutionally recognized interest in visiting with their grandchildren. In re Visitation of C.L.H., 908 N.E.2d 320, 327 (Ind.Ct.App.2009) (citing Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind.Ct.App.1999)). However, our legislature recognized in drafting our Grandparent Visitation Statute that a child's best interest is often served by developing and continuing contact with his or her grandparents. Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind.Ct.App.2004) (citing Swartz, 720 N.E.2d at 1221). "Grandparents are members of the extended family whom society recognizes as playing an important role in the lives of their grandchildren, the importance of which has been given added meaning by the legislature's policy judgment underlying the Act." Id. A parent's decision regarding visitation, cloaked with the presumption of appropriateness, should be further protected when that decision allows visitation and fosters the relationship between grandparent and grandehild.

We are a court of review that reviews errors. A fair reading of this record shows an error. Because the trial court erred in making a finding that our court has determined deserves weight, I would reverse the order and remand to the trial court for the court to reweigh the evidence submitted at the hearing. In doing so, the trial court must give weight to Mother's decision to allow visitation.7

. We note Mother's position on appeal that the trial court did not err. Protracted legal battles that reach the appellate level often result in changed minds. Nonetheless, at the hearing, Mother clearly stated that she would permit visitation, and we cannot allow the legal system to be an impediment to the relationship between Grandmother and her grandchildren. Furthermore, Mother's claim now that she will in the future allow visitation without a court order is gratuitous.