In Re Custody of Banning

541 N.E.2d 283, 1989 Ind. App. LEXIS 1363, 1989 WL 76361

• Court: Indiana Court of Appeals
• Decided: April 5, 1989
• Docket: 45A04-8808-CV-256
• Status: Published

Opinions

CHEZEM, Judge.

Case Summary

Appellant, Barbara Banning Hughes, appeals the trial court’s granting of Appel-lee’s Petition for Visitation.

We affirm.

Issues

Appellant raises two issues on appeal:

(1) Whether the principle of res judicata requires a party involved in a custody hearing to raise the issue of visitation rights (in the alternative) or be barred from subsequently filing a petition for visitation.

(2) Whether the trial court acted contrary to law by granting visitation rights to an unrelated third person.

Facts

C. Michael Banning (“Father”) and Barbara Banning Hughes (“Mother”) were married on May 7, 1983. On May 14, 1984, Mother gave birth to Alison Banning (“Minor”). Father and Mother were separated on October 15,1984 and divorced on May 4, 1985; Mother was granted custody. During the period that Mother had custody, Minor lived for six weeks with the maternal grandparents. On July 30, 1985, Father was granted custody.

Father and Rosemary Banning (“Stepmother”) were married December 20, 1986. On February 23, 1988, Father was murdered. The following day, February 24, 1988, Stepmother filed a petition for determination of custody. The custody hearing was held February 20 and March 2, 1988. The court dismissed Stepmother’s petition pursuant to Indiana Rules of Procedure, Trial Rule 41(B) finding that Stepmother failed her burden to prove Mother unfit. On March 21,1988, Stepmother filed a Petition for Visitation. On April 27, 1988, the Superior Court held that Stepmother acted in a custodial and parental capacity with Minor and that it would be in the best interest of Minor to have visitation with Stepmother. Mother appeals this order.

Discussion and Decision

Issue 1

The burden is on the appellant to present this court with a sufficient record from which we may make a judgment. Indiana Rules of Procedure, Appellate Rule 2(A).¹ Unfortunately, Appellant-Mother has failed to provide us with a complete record. Here, the record does not contain the transcript from the custody proceeding although it does indicate that all of the testimony from the custody proceeding was to be incorporated in the record. Without the complete record, we choose to rely on the trial court’s judgment.²

Issue 2

Appellant asserts that the trial court acted contrary to law by granting visitation rights to a nonrelated [sic] third person pursuant to judge-made common law.

Although Indiana recognizes no statutory right to visitation for an unrelated third party, two cases in Indiana address under what circumstances it is proper to award visitation to an unrelated third person: Collins v. Gilbreath (1980), Ind.App., 403 N.E.2d 921 and Tinsley v. Plummer (1988), Ind.App., 519 N.E.2d 752.

To establish visitation, a third person must first show that a custodial and parental relationship exists and then, that visitation with the third person would be in the “best interest of the child.” Tinsley at 754. It is the party seeking visitation rights who bears the burden of establishing the threshold requirement of a custodial and parental relationship. Id. The “best interest of the child” is the standard by which the question of visitation is adjudged after the cognizable right is established. Id. Here, Stepmother met her burden. Mother argues that Stepmother’s daily contact with Minor was in a baby-sitting capacity. Minor resided with Stepmother and Father for a longer period of time than Minor resided with Mother. During this time, Stepmother was unemployed and eared solely for Minor while Father was working.³ Clearly, as the daily, primary caretaker, Stepmother was more than a babysitter for Minor.

Mother argues that it would not be in the best interest of the Minor to allow visitation. This court has stated that “[t]he mere protest of a parent who asserts that visitation by another person would somehow harm his or her child should not be enough to deny visitation in all cases. This is especially true where the third person has cared for a child as his or her own.” Collins at 923. See also LoPresti v. LoPresti (1976), 51 A.D.2d 578, 378 N.Y.S.2d 487; Spencer v. Spencer (1977), Okl.App., 567 P.2d 112. Mother did not provide any evidence or testimony, other than her own, to show that it would be detrimental to allow visitation. On behalf of Stepmother, Dr. Robert Coyle, M.A., Ed.D., testified that it would not be in the best interests of Minor to completely sever contact with Stepmother.

The court, in the ruling on Mother’s motion to dismiss and its decision, stated that there was clearly evidence of a close, loving relationship between Minor and Stepmother and that Stepmother represented a tangible symbol of Minor’s Father. We will neither reweigh the evidence nor judge the credibility of witnesses. In considering the evidence in the light most favorable to the judgment, it is clear that the trial court did not abuse its discretion.

The trial court is affirmed.

RATLIFF, C.J., concurs in result. MILLER, J., dissents with opinion.

1 . There are numerous cases which hold that the burden is on the party seeking reversal of the judgment to present an adequate record. Dunbar v. State (1974), 160 Ind.App. 191, 311 N.E.2d 447; Chustak v. Northern Ind. Pub. Serv. Co. (1972), 259 Ind. 390, 288 N.E.2d 149; Yuhasz v. Mohr (1974), 159 Ind.App. 478, 307 N.E.2d 516; Anthrop v. Tippecanoe School Corporation (1973), 156 Ind.App. 167, 295 N.E.2d 637; Stypczynski v. Kaiser Jeep Corp. (1973), 156 Ind.App. 78, 294 N.E.2d 830.

2 . However, we note that the Indiana Supreme Court, in State ex rel. Jemiolo v. LaPorte Circuit Court (1982), Ind., 442 N.E.2d 1060, 1062, stated that:

Although visitation rights and custody rights are not synonymous I.C. 31-1-11.5-24, they are sufficiently interrelated, [sic] In re Marriage of Ginsberg, (1981) Ind.App., 425 N.E.2d 656, 659, that a petition to determine visitation rights filed after a determination of custody is in the nature of proceedings supplemental. See State ex rel Greebel v. Endsley, (1978) 269 Ind. 174, 175, 379 N.E.2d 440, 441.

Thus, Res judicata would not appear to be applicable.

3 .It is significant that the court in its ruling on Mother’s motion to dismiss stated: "That relationship between Alison and her stepmother was approaching two years in duration and, indeed, the last two years of a four-year old child’s life. And she acted, on the evidence, clearly, fully both in custodial and parental capacity, more so than the father."