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Campbell v. Eary

Court of Appeals of Indiana

August 15, 2019

Allison Campbell n/k/a Allison Lanthier and Kyle Lanthier, Appellants-Respondents,
v.
Tara Eary, Appellee-Petitioner.

          Appeal from the St. Joseph Circuit Court The Honorable John E. Broden, Judge, Trial Court Cause No. 71C01-1112-MI-225

          Attorney for Appellants George T. Catanzarite Stipp Law, LLC South Bend, Indiana

          Attorney for Appellee Mark F. James Anderson, Agostino & Keller, P.C. South Bend, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] The issue in this appeal is whether a grandparent visitation order over two children born out of wedlock survives after the children have been legitimized by the marriage of the children's biological parents. We hold that it does not. Accordingly, we reverse the trial court's judgment and remand with instructions.

         Facts and Procedural History

         [¶2] Allison Lanthier ("Mother") gave birth to R.L. in June of 2008 and to L.L. in September of 2010. Kyle Lanthier ("Father") is the biological father of both children, but Mother and Father were not married at the time of either child's birth. Father did not file a paternity affidavit, but Father's name appears on each child's birth certificate.

         [¶3] In December of 2011, Tara Eary, Mother's mother ("Grandmother"), petitioned the trial court for an order of grandparent visitation over the children pursuant to Indiana's Grandparent Visitation Act, Indiana Code Sections 31-17-5-0.2 to -10 (2019) ("the Act"). In particular, she requested visitation under Indiana Code Section 31-17-5-1(a)(3) on the ground that the children were born out of wedlock. The trial court granted Grandmother's request and, in its order, established a visitation schedule ("the visitation order").

         [¶4] In September of 2013, Mother and Father married. Thereafter, Father moved to intervene in Grandmother's visitation action, which the trial court granted, and Mother and Father jointly moved to "dismiss" the visitation order on the ground that their marriage had legitimized the children and that, as a matter of law, the visitation order did not survive the marriage. Appellants' App. Vol. 2 at 14-15. The trial court disagreed and denied Mother and Father's joint motion to dismiss. The court then certified its order for interlocutory appeal, which we accepted.

         Discussion and Decision

         [¶5] Mother and Father (hereinafter, "the Parents") appeal the trial court's denial of their joint motion to dismiss. They assert that the Act does not provide for the survival of the visitation order after the Parents have legitimized the children by their marriage. The Parents' argument on appeal turns entirely on statutory construction, which we undertake de novo. E.g., State v. Reinhart, 112 N.E.3d 705, 710 (Ind. 2018).

         [¶6] "Historically, grandparents had no special common-law right to have visitation with a grandchild." K.J.R. v. M.A.B. (In re Visitation of M.L.B.), 983 N.E.2d 583, 585 (Ind. 2013). However, "by enacting the Grandparent Visitation Act, our General Assembly has recognized that a child's best interest is often served by developing and maintaining contact with his or her grandparents." McCune v. Frey, 783 N.E.2d 742, 755 (Ind.Ct.App. 2003) (quotation marks omitted). The Act thus seeks "to balance two competing interests: the rights of parents to raise their children as they see fit and the rights of grandparents to participate in the lives of their grandchildren." Id.

         [¶7] The Act is in derogation of the common law and is "the exclusive basis for a grandparent to seek visitation." In re Visitation of M.L.B., 983 N.E.2d at 585. As such, it "must be strictly construed." J.C. v. J.B. (In re Guardianship of A.J.A.), 991 N.E.2d 110, 113 (Ind. 2017) (discussing B.M. v. J.J.P. (In re Visitation of C.R.P.), 909 N.E.2d 1026, 1028 (Ind.Ct.App. 2009), trans. denied) (quotation marks omitted). The Act "contemplates only occasional, temporary visitation that does not substantially infringe on a parent's fundamental right to control the upbringing, ...


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