Custody of Banning, In re

Citation541 N.E.2d 283
Decision Date05 April 1989
Docket NumberNo. 45A04-8808-CV-256,45A04-8808-CV-256
PartiesIn re the Child CUSTODY Determination of Alison BANNING, A Minor. Barbara Banning HUGHES, Appellant, v. Rosemary BANNING, Appellee.
CourtCourt of Appeals of Indiana

Richard F. James and Donald R. Capp of James, James & Manning P.C., Dyer, for appellant.

David E. Wickland, Munster, for appellee.

CHEZEM, Judge.

Case Summary

Appellant, Barbara Banning Hughes, appeals the trial court's granting of Appellee'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 cared 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.

MILLER, Judge, dissenting.

I dissent. Again we must address a variation of the classic solomonic dilemma--which mother gets the baby? Four year old Alison Banning is in the custody of her natural mother, Barbara Banning Hughes (an appropriate solomonic disposition). The record revealed that Alison's paternal grandmother, Mrs. Blink, not a party to this action, is also seeking visitation which--it is undisputed--she may be entitled to under Ind.Code 31-1-11.7-2. The majority, citing Collins v. Gilbreath (1980), Ind.App., 403 N.E.2d 921 (Judge Young dissenting), would also recognize a right of visitation in favor of Alison's stepmother, Rosemary Banning, because, for fourteen months, she acted in a parental and custodial capacity with Alison while married to the late Michael Banning, Alison's custodial parent and natural father. Our decision is more difficult than Solomon's. His choice was whether or not to slice the baby in half. Because Alison's grandmother is entitled by statute to visitation privileges, we must decide not whether Alison is to be sliced into two pieces, but three.

In Collins, supra, the trial court awarded custody to the children's natural father. The stepfather, as the only third party involved, obtained visitation privileges against the wishes of the natural father. Judge Chipman and I affirmed a visitation order in favor of the stepfather because he had acted in a "custodial and parental capacity" with the children and visitation with the stepfather provided a "necessary transition to their new life with their natural father." Id. at 923, 924. We explicitly limited our holding stating "we do not intend to diminish the rights of a natural parent concerning his or her minor children. Nor do we intend to open the door and permit the granting of visitation rights to a myriad of unrelated third persons, including grandparents, who happen to feel affection for a child." Id. at 923, 924 (emphasis added). We noted "[a] number of jurisdictions have statutes permitting grandparents the right to request visitation [and] [i]f such a policy were to be adopted in Indiana we believe the adoption should occur in a legislative, not judicial, forum." Id. at 924 (footnote 1, citations omitted).

Our legislature has since created the right of grandparents to enjoy visitation with their grandchildren in the event their child dies or is divorced. Ind.Code 31-1-11.7-2. This statute created a right unknown at common law and therefore has been strictly construed. In re Visitation of Menzie (1984), Ind.App., 469 N.E.2d 1225 (trans. denied ); appeal after remand, Bailey v. Menzie (1987), Ind.App., 505 N.E.2d 126. Statutes which provide new and extraordinary remedies are usually strictly construed, both as to the cases embraced within their terms and as to the methods to be pursued. Thus, one who claims a statutory right, or brings an action on a right created by statute, must bring himself/herself within the terms of the statute. 26 I.L.E. Statutes Sec. 177 (1960). Marshall v. State (1986), Ind.App., 493 N.E.2d 1317. "When what is expressed in a statute is creative, and not in a proceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates and prescribes the mode and names the parties granted right to invoke its provisions, that mode must be followed, and none other, and such parties only may act.... The maxim 'Expressum facit cessare tacitum' is also of applicability here. This law designates the actors, and when a law designates the actors none others can come upon the stage." Taylor v. Michigan Public Utilities Commission (1922), 217 Mich. 400, 186 N.W. 485, 487. 1

I disagree with our Second District's reasoning in Tinsley v. Plummer (1988), Ind.App., 519 N.E.2d 752, 56 U.S.L.W. 2571, to the extent it held the doctrine of expressio unius est exclusio alterius does not apply in the interpretation of Indiana's grandparents' visitation statute. The Tinsley court analyzed the statute against the backdrop of Collins, supra. In Collins, we did not contemplate the right to seek visitation to extend to grandparents. Id. 403 N.E.2d at 924. Subsequently, the legislature extended the right to grandparents under less stringent conditions than that set out as the "parental and custodial capacity" standard in Collins. While I do not criticize the logic of the Tinsley analysis, I nevertheless disagree that our legislature, by passing the grandparents' visitation statute, "tacitly approved Collins." Id. 519 N.E.2d at 754.

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