Parental Rights in Indiana

Indiana Parental Rights News

Parental Rights State Legislation Update

March 31, 2021

Legislative sessions around the country are in full swing, and several parental rights bills are still in play. In Iowa, a bill to codify existing state Supreme Court precedent has passed the House and is heading to committee hearings in the Senate this week. In fact, by the time this newsletter reaches you, House File…

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Indiana State Law and Parental Rights

At Risk

Indiana does not have a state statute that explicitly defines and protects parental rights as fundamental rights.

  • Indiana Code Ann. § 31-14-13-2 lays out the best interests of the child factors considered in custodial determination.
  • Indiana Code 31-14-13-4, regarding the authority of the custodial parent, says: Except as otherwise provided in an order by a court, the custodial parent may determine the child's upbringing, which includes education, health care, and religious training, unless the court determines that the best interests of the child require a limitation on this authority.
  • Indiana Code 31-17-5 contains the Grandparent visitation statute. A grandparent may seek visitation only if (1) the child's parent is deceased; (2) the child's parents are divorced; or (3) the child was born out of wedlock, but only if the child's father has established paternity. And the trial court may grant visitation if it determines that "visitation rights are in the best interests of the child."
  • Indiana Code § 20-33-7-2 entitles both parents to direct access to their child's school records.
  • Indiana Code §§ 16-39-1-7 and 16-39-2-9 entitles both parents to direct access to their child's medical records and mental health records.

In 2014, proposed Senate Bill 100  (SB 100) would have mandated the recognition of fundamental parental rights in Indiana. The bill also called for "strict scrutiny" protection in any court case where parental rights are implicated. However, the bill was not passed.

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Indiana Courts and Parental Rights

At Risk

Indiana court decisions over the past decade have been centered on principles set forth by the U.S. Supreme Court in Troxel v. Granville. The confused legacy of Troxel affords some deference to the rights of parents without guaranteeing their protection under the strict scrutiny standard.

  • Crafton v. Gibson, 752 N.E.2d 78, 92 (Ind. Ct. App. 2001) affirmed an earlier decision which used the flimsy "rational basis " scrutiny to evaluate a grandparent visitation statute because "the Supreme Court in Troxel did not articulate what standard would be applied in determining whether nonparental visitation statutes violate the fundamental rights of parents."
  • In McCune v. Frey, 783 N.E.2d 752, 757–59 (Ind. Ct. App. 2003), the Indiana Court of Appeals soon distilled the Troxel plurality’s principles into four factors that a grandparent-visitation order “should address”:(1) a presumption that a fit parent’s decision about grandparent visitation is in the child’s best interests (thus placing the burden of proof on the petitioning grandparents);(2) the “special weight” that must therefore be given to a fit parent’s decision regarding nonparental visitation (thus establishing a heightened standard of proof by which a grandparent must rebut the presumption);(3) “some weight” given to whether a parent has agreed to some visitation or denied it entirely (since a denial means the very existence of a child-grandparent relationship is at stake, while the question otherwise is merely how much visitation is appropriate); and(4) whether the petitioning grandparent has established that visitation is in the child’s best interests.
  • Re K.I, 903 N.E.2d 453, 462 (Ind.2009) made consideration of these principles mandatory.
  • Re K.I, 903 N.E.2d 453, 462 (Ind.2009): The parent comes to the table with a "strong presumption that a child's interests are best served by placement with the natural parent." The burden of proof is always on the third party to prove by clear and convincing evidence "that the child's best interests are substantially and significantly served by placement with another person." [Court citing B.H., 770 N.E.2d at 287 (Ind. 2002)]
  • In Re Visitation of M.L.B, 983 N.E.2d 583 (Ind. 2013)the Indiana Supreme Court found that the trial court failed to make any express findings on the first two factors set forth in McCune, namely the presumption of parental fitness and the “special weight” due to fit parents’ decisions.  These factors are “key to a constitutionally appropriate balance between a natural parent’s fundamental rights and a child’s best interests — and without findings reflecting that balance, a grandparent-visitation order is not constitutionally permissible.” Thus, “despite the trial court’s ample ‘best interests’ findings, the lack of findings on the other three factors, both standing alone and as compounded by the extensive visitation awarded without those necessary findings, violates Mother’s fundamental right to direct M.L.B.’s upbringing.”