Lesbian Mother and Grandparent Visitation in Indiana: Who is In and Who is Out?

A new case from Indiana  raises a host of issues about de facto parentage, parental rights, and the passage of time.   Some of these connect up to issues in the de facto case from MissouriI blogged about.   Others are reminiscent of questions I raised in the post about  David Goldman and passage of time

It takes a little while even to recite the facts, which means this discussion may need to span several days.   But as is always the case in family law, the facts are critical.  I’ve linked to the full opinion above and you can also read the excellent summary from Professor Art Leonard’s blog.   

BLH was a single mother.   She gave birth to CLH in 2001.  CLH was apparently conceived through intercourse and so has a father, TY.   TY has not provided child support and has never been substantially involved with the child.   Nonetheless, since his rights have not been terminated, he remains a parent of the child, albeit one always in the far distance. 

BLH’s pregnancy was complicated.  She lived with her parents, GLH and BJH, throughout it and for the five years after CLH was born.   BLH’s parents–CLH’s grandparents—were primary caregivers of CLH from September 2002 to 2007.  (From 2002 to 2004 BLH’s work schedule required her to be out-of-town three or four nights a week.)   BLH moved out of her parents house in 2006 leaving CLH with her parents.   CLH moved into BLH’s house in 2007.

In early 2007 BLH met and began dating KW.  KW is a woman.   BLH’s parents did not approve of this relationship and would not include KW in family gatherings, though they continued to include BLH and CLH.   Unsurprisingly, their disapproval of BLH’s lesbianism created significant tensions.  

In mid-2007, KW quit her job to stay home and care for CLH.  As time passed, CLH became rooted in a family consisting of BLH and KW and the relationship between both BLH and CLH and the parents/grandparents became more difficult, particularly as the grandparents were unwilling to acknowledge KW’s relationship with the child. Eventually, the grandparents sued seeking visitation with CLH.  This is what lead to the opinion just issued.  

Before describing the opinion, I need to discuss a bit of law.   Indiana, like many states, has a statute specifically designed to allow grandparents to seek visitation with their grandchildren.   These statutes recognize the important (sometimes unique) role grandparents may play in a child’s life.  States with grandparent visitation statutes place grandparents in a special category—not as privileged as a parent, but more privileged than other non-parents, including other relatives. 

As an alternative, some states have third-party visitation statutes that apply equally to all third-parties, depending on the actual relationship between the third-party and the child.   Third-party visitation statutes can be used by grandparents, but may also be employed by wider range of people who have played a role in a child’s life. 

Grandparent visitation statutes are necessarily employed in situations rife with generational discord.  By definition, grandparent visitation cases arise in situations where the relationship between the generations have substantially failed.  Litigation rarely improves matters.   (Sometimes, as is the case here, the parent at odds with the grandparents is the child of the grandparents.  In other instances, the parent is the former partner of the grandparents’ child.  It’s hard to assess which of these would be the less propitious circumstance.)  

In the end in the Indiana case, the CLH wins.   She does so because she is recognized as a parent, and as a parent she generally gets to decide what is best for her child.    That’s exactly why being a parent matters.   But there’s more to say about this particular saga so I shall return to it in my next post.

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