A Service of Rainbow Law

A unanimous three-judge panel of the Court of Appeals of Indiana ruled on June 23 in Matter of Visitation of C.LH., 2009 Westlaw 1765688, that a trial judge, Hendricks Superior Court Judge Karen M. Love, abused her discretion in ordering that the homophobic grandparents of a lesbian mother be given ten hours a month of visitation with their young grandson. Judge Edward W. Najam, Jr., wrote the opinion for the Court of Appeals. The opinion identifies all parties by their initials.

B.L.H. gave birth as a single mother in October 2001. She had a difficult pregnancy and was living with her parents at the time. She continued to live with them for several years, and they played the primary caregiver role with her son, C.L.H., until mid-2007, by which time she had established her own household. Early in 2007, B.L.H. met K.W. and they began dating. Soon K.W. had quit her job, moved in with B.L.H., and taken over the primary caregiver role for the child. B.L.H.’s job required a fair amount of travel.

B.L.H.’s parents were not happy about this development. Her mother considers homosexuality to be a sin, and when she suffered a stroke shortly after learning about K.W., B.L.H.’s father attributed the stroke to shock about her daughter’s homosexuality and lesbian partner. B.L.H. tried to maintain some sort of relationship with her parents and allow them to see the child from time to time, but their active hostility to K.W. and desire to exclude K.W. from contact with them proved a problem.

Things came to a head around Christmas time of 2007, when the grandparents thought they had a commitment from B.L.H. to bring the child to visit them and receive his Christmas presents. When B.L.H. and the child did not show up, the grandparents went to B.L.H.’s house around 9 p.m. and demanded to see the child, who had already been put to bed. When B.L.H. refused to wake the child to see the grandparents, grandfather became "very angry," told B.L.H. she should never again set foot on their property, and seemed to threaten her "if anything were to ever happen" to the child.

After this, B.L.H. cut off contact with the grandparents. After several months of no contact, they filed suit under the state’s Grandparent’s Visitation Act, seeking court-ordered visitation. They requested a visitation schedule that would be more characteristic of a non-custodial parent than grandparents, including several contacts and some sleepovers each month, as well as several weeks in the summer. B.L.H. formally opposed the lawsuit, but indicated that she might be amenable to working out some kind of visitation scheme informally.

Judge Love appointed a Guardian Ad Litem, who interviewed all parties and submitted a report to the court indicating that B.L.H. is a fit parent, that K.W. was providing good care to the child, who was well-adjusted and doing well in school, and that the visitation schedule sought by the grandparents was not "realistic." The Guardian Ad Litem concluded, "Mother is a fit parent and appears to be making decisions based on what she believes to be in [C.L.H.’s] best interests. She has reasons for denying Grandparents visitation with [C.L.H.] which are valid given the interactions between the family members over the last year or so."

Nonetheless, Judge Love determined to award substantial visitation time to the Grandparents, premised largely on their significant role as primary caregivers during the child’s preschool years, and the likelihood that they would provide the only link for the child with their extended family, since B.L.H. had cut off contact with her sister and other relatives. Judge Love had noted that the child had become best friends with a cousin who was around his age, but that this contact had also ceased.

Judge Love found that it would be in the best interests of the child to maintain contact with the grandparents, order ten hours of visitation a month, while opining, "What would be ideal for [C.L.H.] would be for Grandparents to find a way to accept Mother’s homosexuality, to welcome [K.W.] as part of Mother and [C.L.H.’s] family and to understand that, while they filled an extremely important role in [C.L.H.’s] life from birth through pre-school, they are not his parents and do not have the status of parents nor the right to make demands upon Mother. Further, it would be ideal for [C.L.H.] if Mother could find a way to forgive her parents for their negative response to her homosexuality and her choice of partner, to see from their perspective their understandable hurt after being pushed out of [C.L.H.’s] life and Mother’s life, and to find a way to give [C.L.H.] the gift of not only a loving immediate family, but also a loving extended family."

Judge Najam found the most significant flaw in Judge Love’s ruling was the failure to give appropriate weight to B.L.H.’s constitutional rights as a parent. If a legal parent is fit, then there is a strong presumption, enforced by substantial federal due process rulings, that her decisions about the raising of her child, including with whom the child associates, are binding and take priority over the desires of third parties. He noted that in prior rulings, the court had observed that the Grandparent’s Visitation Act contemplated "occasional, temporary visitation as found to be in the best interest of the child," and that "the Grandparent’s Visitation Act carves out a narrow statutory exception to the otherwise sacrosanct parental authority in a child’s upbringing."

Yet Judge Love’s award of ten hours visitation per month, in the face of discord between the mother and the grandparents that was largely instigated by the grandparents, failed to comport with this narrow approach. "The ultimate question is whether visitation in the face of family discord is in the child’s best interest," wrote Judge Najam. "Here, the trial court’s visitation order is not supported by its findings or the undisputed evidence. The record reveals a significant level of discord between Grandparents and Mother due to Mother’s relationship with K.W. and K.W.’s relationship with C.L.H. The trial court found that the parties ‘hurt’ one another, but the court’s order does not indicate that it considered the totality of the circumstances in determining the best interests of C.L.H."

Najam pointed out that the Guardian ad litem had found the B.L.H. had "valid" reasons for denying visitation to her parents. "While a trial court is not required to accept a parent’s reasons for denying visitation with grandparents as necessarily true, here, the undisputed evidence shows that Mother is a reasonable person and has a rational basis for the decision, which she did not come to easily," wrote Najam. "The trial court did not make any finding regarding the validity or reasonableness of Mother’s decision."

After noting that B.L.H. tried to maintain some relationship with her parents despite their disapproval of her sexual orientation and her partner, and that she gave up on this "after she felt physically threatened by Grandfather" at Christmas time in 2007, Najam asserted that the grandparents "did not have clean hands when they filed their petition for visitation. Confrontations initiated by Grandparents created unnecessary conflict and stress within the family. While they are entitled to their opinions concerning Mother’s relationship with K.W., Grandparents’ open hostility toward Mother created an unhealthy environment for C.L.H. In time, when civility is restored, Mother and Grandparents may reach a private reconciliation which enables Grandparents to visit with C.L.H., but under the circumstances Grandparents have failed to show that it is in the best interests of C.L.H. for the State to intervene and compel visitation against the well-founded concerns of Mother, who is a fit parent."

Kathleen M. Sweeney and Robert A. Schembs of Indianapolis represented B.L.H. on the appeal. Surprisingly, in light of their having instituted the lawsuit, the grandparents did not respond to the appeal to protect their victory in the trial court, leaving the court to make its ruling based on the trial record and the arguments of B.L.H.’s attorneys.

Read the original article in Leonard Link