Appeals court strips grandmother’s visitation, cites grandchild’s adoption

Dave Stafford for www.theindianalawyer.com

An Indiana Court of Appeals panel Friday stripped a maternal grandparent of visitation rights, finding she had no standing to seek visitation. The parents of the child had divorced, and the father remarried shortly after the mother’s death.

After her petition was initially denied by a special judge, Hamilton Superior Judge William Hughes granted a motion to correct error and granted Melba Sutliffe’s petition for grandparent visitation. The court allowed her visitation one weekend a month, one week in summer and extra time around holidays. The child’s father, Kirk R. Jocham, appealed.

According to the record, Jocham and Sutliffe’s daughter, Stephenie Jocham, had one child, K.J., in 2004. The Jochams, both attorneys, divorced in 2008, and Stephenie died in 2011 from a rare form of cancer. That same year, K.J.’s father remarried, and a year later he and stepmother Emily adopted the child.

At the trial court, Hughes ruled Stephenie “was, remains, and always will be K.J.’s biological mother. Accordingly, [Sutliff] is the ‘maternal grandparent’ under I.C. 31-9-2-77. She may seek, pursuant to I.C. § 31-17-5-1, visitation rights with K.J. because the child’s parent is deceased, and because [Sutliff] is the biological parent of the child’s deceased biological parent.”

But the appeals panel reversed, finding that Sutliff filed her petition after K.J. had been adopted and a new birth certificate was issued listing her father and stepmother as parents.

“There is no question that Sutliff is the parent of Stephenie, who is the biological parent of K.J. Furthermore, there is no question that Jocham and Stephenie’s marriage was dissolved in 2008 or that Stephenie is now deceased,” Judge Margret Robb wrote for the unanimous panel.

“Accordingly, had Sutliff filed a petition for grandparent visitation at any time after Jocham and Stephenie filed for divorce up to the day Emily’s adoption of K.J. was final, we would agree with the trial court that she had the right to petition for visitation rights and that any visitation rights granted to her as a result of the petition survived the adoption.”

Sutliff had no notice of the adoption petition, which the panel wrote isn’t required by statute. In a footnote, the panel observed, “One way to avoid cutting off a grandparent’s opportunity to seek visitation rights by catching him or her unawares would be to amend the adoption statute to require notice of a petition for adoption be given to anyone who would be eligible under the (Grandparent Visitation Act) to seek grandparent visitation rights as of the time the petition is filed.”

“We sympathize with Sutliff’s plight, and we recognize that, especially in family law matters, more is undoubtedly involved than the legally relevant facts disclose. But the legally relevant facts are those upon which we must base our decision, and here, those facts lead inescapably to the conclusion that Sutliff had no legal right to seek grandparent visitation at the time she filed her petition,” Robb wrote. “Regrettably, in situations such as this, the result may be inequitable and may not serve the purpose of the GVA.

“However, it is not our place to judicially expand the statute beyond its explicit terms or to craft exceptions for specific circumstances. … The legislature drew a fine line on this issue between protecting intergenerational relationships and protecting newly formed adoptive family units. Stepping into the role of an adoptive parent and building a successful new family unit takes courage and support. There must be some assurance that the circumstances as they exist at the time of the adoption will not be thrown into disarray months or even years later by a grandparent newly seeking visitation.”

The case is Kirk R. Jocham v. Melba Sutliff, 29A02-1406-DR-424.