Appellants-Petitioners John P. and Carol A. Hayes ("Grandparents") appeal the dismissal of their petition for visitation with their grandchild, J.P.H. ("Child"), brought against Appellees-Respondents Plaintiffs Joseph P. ("Father") and Kimberly ("Mother") Hayes ("Parents"). We affirm.
The dispositive issue may be restated as whether grandparents have standing to petition for visitation against the wishes of the custodial parents whose marriage remains intact with respect to a grandchild who, although was born out of wedlock, has been legitimated by the establishment of paternity in Father and by Parents' marriage.
The facts are undisputed. Child was born to Mother out of wedlock. (R. 59). Paternity was established in Father. (R. 64-65). Parents married after Child's birth and remain married. (R. 41, 65). Grandparents are Father's parents. (R. 62).
Grandparents brought the instant petition for visitation with Child under the Grandparent Visitation Statute ("GVS"), IND.CODE § 31-17-5-1. (R. 6). The trial court dismissed the petition finding that Grandparents could not obtain an order granting visitation privileges over the parents' objection under the present circumstances where the parents' marriage was intact. (R. 41-42). This appeal ensued.
Discussion and Decision
Grandparents assert the General Assembly has afforded them the right to seek visitation under IND.CODE § 31-17-5-1 of the GVS which reads in pertinent part as follows:
(a) A child's grandparent may seek visitation rights if:
(1) the child's parent is deceased;
(3) subject to subsection (b), the child was born out of wedlock.
Also, IND.CODE § 31-17-5-8 provides that grandparent visitation rights survive the establishment of paternity of a child born out of wedlock.
Thus, Grandparents correctly point out that they meet all the statutory requirements to seek visitation under IND.CODE § 31-17-5-1(a)(3) and (b) because Child was born out of wedlock and Father established paternity with respect to Child.
A. Standard of Review
In order to seek visitation rights with grandchildren, grandparents must have standing to seek those rights under the GVS. Lockhart v. Lockhart, 603 N.E.2d 864, 867 (Ind.Ct.App.1992). Therefore, if the GVS does not provide standing for a particular class of grandparents to seek visitation rights, their petition must be denied as a matter of law. Id.
B. Statutory Interpretation of Grandparent Visitation Statute
As stated in JKB, Sr. v. Armour Pharmaceutical Co., 660 N.E.2d 602 (Ind.Ct. App.1996), trans. denied:
The GVS was enacted to strengthen familial bands in an era which has seen a general disintegration of family bonds. Sightes v. Barker, 684 N.E.2d 224, 231 (Ind. Ct.App.1997), trans. denied. The policy of the GVS is to promote intergenerational contact and strengthen the bonds of the extended family when the nuclear family has been dissolved. See id.
There was no common-law right to seek visitation with a grandchild. Id.; see also, In re Visitation of J.O., 441 N.E.2d 991, 994 (Ind.Ct.App.1982). Before the enactment of the GVS, grandparents could seek visitation as could other interested third parties only under limited circumstances. J.O., 441
Thus, the GVS was enacted in derogation of the common law, creating rights which had not previously existed. Where statutory actions create rights in derogation of the common law, the statute creating those rights must be strictly construed. Wolf v. Boren, 685 N.E.2d 86, 88 (Ind.Ct.App.1997), trans. denied (wrongful death); Banning, 541 N.E.2d at 285-86 (Miller J. dissenting, noting that the GVS created a new remedy which had not been recognized under the common law).
C. Policy Against Governmental Intervention into Private Family Matters
As stated in Lockhart, 603 N.E.2d at 866:
(citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)). With respect to the GVS, the Lockhart court held:
Id. at 866-67 (emphasis added). Thus, the Lockhart court held that Grandparents had no standing under the GVS to seek visitation where Grandparents' son had been awarded primary physical custody of the grandchild. Id. at 866-67; See also J.O., 441 N.E.2d at 995 (maternal grandmother had no standing where mother of child born out of wedlock had custody of the child).
D. Common Law Legitimation
It is well settled under the statutes promulgated under the civil law that the parents' marriage plus the father's acknowledgement of paternity will legitimate a child born before the marriage. Brock v. State, 85 Ind. 397, 398-99 (1882); Bailey v. Boyd, 59 Ind. 292, 298-99 (1877) (such illegitimate child shall be deemed legitimate). Once a child has been legitimated by his parents' marriage and his father's acknowledgment of paternity, his status as legitimate cannot be changed. Brock, 85 Ind. at 399.
Thus, for all intents and purposes under the law, a child born out of wedlock, whose father establishes paternity and marries the child's mother, will be treated as if he were born during the marriage. We believe that this concept of legitimation by subsequent marriage and acknowledgment has such a long and consistent history that our legislature simply did not contemplate the situation posed in the present case when enacting the present version of the GVS.
There is no question that Grandparents would have lacked standing had Child been born after Parents married. Grandparents' interpretation of the GVS that the legislature could have intended the opposite result where the child was born before the marriage but whose paternity has been established in Father and whose parents have married is absurd. Visitation under the present circumstances would constitute an unwarranted encroachment into the right of the custodial parents to raise their child as they see fit.
Therefore, we hold that the legislature could not have intended that Grandparents be afforded standing to seek visitation under the present circumstances against the wishes of the custodial parents whose marriage remains intact. Based on the above, the trial court correctly determined that Grandparents
FRIEDLANDER, J., and STATON, J., concur.