Moses v. Cober

641 N.E.2d 668, 1994 Ind. App. LEXIS 1466, 1994 WL 579654
CourtIndiana Court of Appeals
DecidedOctober 24, 1994
Docket29A02-9402-CV-98
StatusPublished
Cited by15 cases

This text of 641 N.E.2d 668 (Moses v. Cober) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moses v. Cober, 641 N.E.2d 668, 1994 Ind. App. LEXIS 1466, 1994 WL 579654 (Ind. Ct. App. 1994).

Opinions

OPINION

BAKER, Judge.

Today we examine Indiana's Grandparent's Visitation Act to decide the requisites of standing to seek visitation rights and the proper focus a court should apply to determine the best interests of the grandchild. Appellant-petitioner Carol Moses appeals the dismissal of her petition for grandparent visitation alleging that the trial court erred in determining that visitation would not be in the best interests of her granddaughter. Lezli cross-appeals claiming that Carol does not have standing.

FACTS

Carol is the natural maternal grandmother of Dani Nicole Pierson. Carol's daughter, Lezli Cober, gave birth to Dani Nicole on February 11, 1989. Lezli and Greg Pierson, Dani Nicole's natural father, were not married when Dani Nicole was born.

After her granddaughter's birth, Carol attempted to maintain regular contact with her. However, due to constant strife between Carol and Lezli, Carol's attempts to see Dani Nicole on a regular basis failed. The record reveals that when Carol and Lezli were not fighting, Carol was allowed to have regular contact with Dani Nicole Carol would baby-sit her granddaughter and often spend holidays with the family. However, if Carol and Lezli were having an argument, Lezli would withdraw Carol's visitation.

Lezli terminated Carol's visitation following a dispute between the two over whether Carol would buy Lezli a new home. Lezgli complained that Carol should buy her a bigger home. Carol declined because she felt that Lezli was not capable of supporting her current residence. Thereafter, Lezli refused to allow Carol to see Dani Nicole. Therefore, on June 25, 1998, after numerous attempts to see her granddaughter, Carol filed a petition for visitation with Dani Nicole. In response to Carol's petition, Lezli filed a motion to dismiss alleging that Carol lacked standing to seek visitation and, in the alternative, failed to present sufficient evidence to show that visitation would be in Dani Nicole's best interests. The trial court, in granting Lezli's motion to dismiss, held that Carol did have standing to pursue visitation but that she failed to show that visitation would be in Dani Nicole's best interests.

DISCUSSION AND DECISION

Carol challenges the trial court's denial of visitation rights. Lezli maintains that although the trial court erred in finding that Carol had standing, it correctly decided that visitation was not in Dani Nicole's best interests. Grandparent visitation rights are conferred by statute in Indiana pursuant to the Grandparent's Visitation Act (Act). See IND.CODE § 31-1-11.7-1 et seq. IND. CODE § 31-1-11.7-2 in pertinent part provides:

A child's grandparent may seek visitation rights if:
(1) the child's parent is deceased;
(2) the marriage of the child's parents has been dissolved in Indiana; or
(3) the child was born out of wedlock.

I. Standing

Lezli contends that Carol lacks standing to seek visitation of Dani Nicole. Lezli first argues that the Act was not intended to permit a grandparent to seek court-ordered visitation when her child has custody and does not desire such visitation. Because this issue concerns a statute, we recognize the limits on our review. We will not interpret a statute which is clear and unambiguous on its face. See Indiana St. Bd. of Health v. Journal-Gazette Co. (1993), Ind.App., 608 N.E.2d 989, 992. We must examine and treat it as a whole, giving the statute its apparent and obvious meaning. Id. In construing a statute, we will presume the legislature intended the language of the statute to be applied in a logical manner consistent with its underlying goals and policy. In re Groleau (1992), Ind.App., 585 N.E.2d 726, 728. The legislature is presumed to have had in mind the history of the act, and the decisions of the courts upon the subject-matter of the legislation being con[671]*671strued. Journal-Gazette, 608 N.E.2d at 993. The legislature amended ILC. § 81-1-11.7-2 in 1993. Prior to its amendment, the Act read as follows:

(a) A court may not grant visitation under this chapter after May 8, 1989, to a grandparent who is the parent of a person:
(1) who is not deceased; and
(2) who has been awarded custody of the grandchild.
(b) A child's maternal grandparent may seek visitation rights, regardless of whether the paternity of the child has been established if:
(1) the child's mother is deceased;
(2) the marriage of the child's parents has been dissolved in Indiana; or
(3) the child was born out of wedlock.

The only cireumstances in which a grandparent may seek visitation rights are those enumerated in the Act. Lockhart v. Lockhart (1992), Ind.App., 603 N.E.2d 864, 867. Prior to the 1993 amendments, the statute clearly stated that grandparents may not obtain visitation against the wishes of a custodial parent. See id. However, in 1993, the legislature deleted subsection (a) and thus expanded a grandparent's right to seek visitation with a grandchild.2 In view of the specific changes in the Act, the legislature clearly contemplated situations of dissension between the custodial parent and grandparent. The legislature's deletion of subsection (a) reflects its purpose to protect a grandparent whose child, as the custodial parent, was denying visitation with a grandchild due to a conflict between grandparent and child. Therefore, Carol may seek visitation rights of Dani Nicole if she falls within one of the cireumstances enumerated in the Act. Lezli argues that she does not.

According to Lezli's interpretation of L.C. § 81-1-11.7-2, a grandparent may seek visitation with the grandchild only if the child's parent is deceased and the marriage of the child's parents has been dissolved in Indiana, or if the child's parent is deceased and the child is born out of wedlock. We disagree.

It is illogical to read the requirements in the conjunctive as Lezgli suggests. The apparent and obvious meaning of the statute, treated as a whole, is that the legislature intended the three requirements to be read in the disjunctive. See R.L. v. State (1982), Ind.App., 437 N.E.2d 482. Thus, a grandparent may seek visitation with a grandchild if the child's parent is deceased, or the marriage of the child's parents has been dissolved in Indiana, or the child is born out of wedlock. Therefore, we affirm the trial court's finding that because Dani Nicole was born out of wedlock, Carol has standing to seek visitation with her pursuant to I.C. § 31-1-11.7-2(a)(8). -

IIL. Visitation

Carol asserts that the trial court erred in determining that visitation would not be in the best interests of Dani Nicole. The legislature has provided that visitation rights may be granted when the court finds that it is in the best interests of the child.

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Moses v. Cober
641 N.E.2d 668 (Indiana Court of Appeals, 1994)

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Bluebook (online)
641 N.E.2d 668, 1994 Ind. App. LEXIS 1466, 1994 WL 579654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moses-v-cober-indctapp-1994.