COA affirms order allowing grandparent visitation with deceased son’s daughter

The Indiana Court of Appeals Wednesday upheld the order granting visitation to the paternal grandfather of a child whose father killed himself before her birth. But one judge had reservations about the visitation arrangements.

Mother K.L. was legally separated from her husband W.L. when she began a relationship with L.H. in April 2011. She became pregnant and spent time at the home of E.H., L.H.’s father, on occasion during their relationship. In October 2011, L.H., the father of L.L., committed suicide, which led to a break in communication between K.L. and E.H. The father’s attended a baby shower for her and K.L. invited E.H. and his wife to the hospital after L.L. was born. It was later determined that L.H. was the baby’s father.

K.L. and W.L. have reconciled since their divorce. E.H. had been unable to see L.L., despite his requests, so he filed for visitation. The trial court ordered mediation, but it was unsuccessful. The court granted E.H.’s petition and dictated that L.L. would visit E.H. every other Sunday for two hours. The visits would initially be supervised, but later transition to unsupervised.

K.L. appealed, arguing the mediator should have been able to testify that E.H. was the one who made mediation unsuccessful as well as that the visitation should not have been granted. She claimed to have a limited relationship with E.H., was worried he could not care for L.L.’s tubes in her ears properly, and worried the visitation would raise questions about her biological father before K.L. was ready to explain the issue to her child.

In K.L. v. E.H., 29A02-1308-MI-681, the Court of Appeals rejected K.L.’s argument regarding the mediator’s testimony, noting that the trial court made it clear that the statements made during mediation would be confidential and the mediator could not testify. It does not matter that this issue involves visitation of a child, as K.L. argued.

The judges also found no abuse in discretion in granting E.H.’s petition for visitation, citing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), and Indiana Code. The trial court noted limited contact K.L. had with E.H.’s family before and after L.H.’s death, that mother ignored E.H.’s requests for visitation, E.H.’s extensive experience caring for children, and there was no evidence L.L. would be in danger when visiting her grandfather. The court also afforded little to no weight to some of the concerns expressed by K.L.

Judge Margret Robb, in her separate opinion, took issue with the trial court’s lack of consideration to the mother’s concerns and dissented from the majority’s decision to affirm without reservation the visitation order. Robb believed the visitation schedule is not crafted to meet L.L.’s best interests, given how quickly the order increases visitation time and frequency. Robb would remand for the visitation to occur twice a month for two hours under mother’s supervision, with any modifications to be made only after a report to the court.