Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not 

be regarded as precedent or cited 

before any court except for the purpose 

of establishing the defense of res 

judicata, collateral estoppel, or the law 

of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MATTHEW J. MCGOVERN TRISHA S. DUDLO

Anderson, Indiana KELLY A. LONNBERG

Bamberger Foreman Oswald and Hahn, LLP

Evansville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN RE: THE VISITATION OF H.B., )

)

A.B., )

)

Appellant-Respondent, )

)

vs. ) No. 87A01-1309-MI-415

)

T.S. and A.S., )

)

Appellees-Petitioners. )

APPEAL FROM THE WARRICK SUPERIOR COURT

The Honorable Robert R. Aylsworth, Judge

Cause No. 87D02-1307-MI-854

May 9, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

A.B. (“Father”) appeals the trial court’s grant of grandparent visitation to T.S. and 

A.S. (“Grandparents”). We remand. 

Issue

Father raises two issues, but we find one issue dispositive. We restate that issue as 

whether the trial court’s findings of fact and conclusions thereon are adequate to support 

the grandparent visitation order.

Facts

H.B. was born in June 2008 to Father and K.M. (“Mother”). Father and Mother 

were not married. Mother and H.B. have occasionally lived with her parents, 

Grandparents. Although Mother initially had custody of H.B., an Illinois court modified 

that custody in March 2012 due to Mother’s alcohol abuse and instability. Father was 

awarded sole custody of H.B., and Mother was awarded visitation. In August 2012, 

Mother’s visitation was modified to visitation on the first, second, and third Sundays of 

each month from 3:00 p.m. to 5:00 p.m. at a restaurant with visitation to be supervised by 

Father or his parents. Grandparents visited with H.B. once a month during Mother’s 

supervised visitation. Grandparents also attended H.B.’s sporting events, and Father 

allowed H.B. to attend a picnic and a birthday party with Grandparents.

In July 2013, Grandparents filed a petition for grandparent visitation pursuant to 

Indiana Code Chapter 31-17-5. After a hearing, the trial court granted Grandparents’

request. The trial court entered the following findings of fact and conclusions thereon:
3

1. Upon review of the Illinois parenting time order with 

regard to H.B. and the Mother, it is clear to the Court 

that H.B. is where she needs to be. The Father has 

reasonable concerns with regard to the mother’s 

history, and her parenting time is currently supervised. 

No order in this cause, now or in the future, should be 

interpreted as interfering with or modifying in any way 

the Mother’s parenting time order in the Illinois 

paternity action.

2. The Grandparent Petitioners’ relationship with H.B. 

has been close since birth, and until custody was 

changed to the Father.

3. The relationship between the Grandparents and the 

Father is not hostile, but likewise not comfortable.

4. The Grandparents’ petition for grandparent time is 

granted. The Grandparents shall have one weekend 

per month beginning the second Friday of September 

2013 and continuing each second Friday of the month 

hereafter. The Grandparents shall pick the child up 

from the Father’s residence at 6:00 p.m. and return the 

child at 3:00 p.m. on Sunday of their weekend either to 

the Father’s residence or the location of the Mother’s 

supervised parenting time if she is exercising her 

parenting time at that time.

5. In addition, the Grandparents shall be entitled to two 

(2) overnights during the time period of December 26 

through December 31 of each year. At that time she 

can celebrate Christmas with her grandparents and 

extended family on the Mother’s side.

6. Finally, the Grandparents shall be entitled to five (5) 

days of extended grandparent time each summer. The 

parties shall work together to coordinate the summer 

parenting time. The Grandparents shall give notice of 

their choice of summer schedule by April 1 each year 

if possible.

7. The Grandparents shall be entitled to a telephone call 

with H.B. at least one time per week.
4

8. The Grandparents shall allow no additional contact 

between the child and the Mother so long as the 

Mother is subject to her current supervised and limited 

parenting time.

9. The parties shall use good faith and fair dealing with 

each other. Neither party shall argue, criticize or speak 

negatively of the other party in the child’s presence.

10. The parties shall cooperate reasonably when a change 

in grandparent time is needed due to conflicts in the 

parties’ schedules.

Appellant’s App. pp. 81-83. Father now appeals.

Analysis

Father argues that the trial court’s findings are inadequate to support the 

grandparent visitation order. The “Grandparent Visitation Act contemplates only 

occasional, temporary visitation that does not substantially infringe on a parent’s 

fundamental right to control the upbringing, education, and religious training of their 

children.” In re Visitation of M.L.B., 983 N.E.2d 583, 586 (Ind. 2013). “Because the 

Grandparent Visitation Act requires specific findings of fact and conclusions of law, Ind. 

Code § 31-17-5-6, we apply the two-tiered Indiana Trial Rule 52 standard of review.” Id.

at 585. We first determine whether the evidence supports the findings and then whether 

the findings support the judgment. Id. We set aside findings of fact only if they are 

clearly erroneous, and we defer to the trial court’s superior opportunity to judge the 

credibility of the witnesses. Id. A judgment is clearly erroneous when the findings fail to 

support the judgment or when the trial court applies the wrong legal standard to properly 

found facts. Id.
5

Our supreme court recently discussed the four factors that a grandparent visitation 

order should address, which include:

(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.

Id. at 586 (quoting McCune v. Frey, 783 N.E.2d 752, 757-59 (Ind. Ct. App. 2003), and 

discussing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000)). The court noted 

that a grandparent visitation order “must address” these factors in its findings and 

conclusions. Id. (citing K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 462 (Ind. 2009)).

Here, the trial court’s findings only note that Father has reasonable concerns 

regarding Mother, that Grandparents previously had a close relationship with H.B., and 

that the relationship between Father and Grandparents is not hostile but is also not 

comfortable. Despite Grandparents’ strained interpretation to the contrary, we conclude 

that the trial court’s findings do not expressly or implicitly address the presumption that 

Father’s decision was in H.B.’s best interests, the heightened standard of proof by which 
6

Grandparents must rebut that presumption, the fact that Father has allowed some 

visitation between H.B. and Grandparents, and whether Grandparents demonstrated that 

visitation was in H.B.’s best interests.

“[W]hen a trial court fails to issue specific findings in accordance with McCune, 

the order is voidable, and the remedy on appeal is a remand to the trial court instructing it 

to enter a proper order containing the required findings.” Id. at 588 (quoting In re 

Guardianship of A.L.C., 902 N.E.2d 343, 359 (Ind. Ct. App. 2009)). We therefore 

remand to the trial court for entry of new findings and conclusions revealing its 

consideration of all four relevant factors, without conducting a new hearing. See, e.g., id.

at 589 (remanding for the entry of new findings and conclusions).

Conclusion

The trial court’s findings and conclusions thereon regarding the relevant factors 

are incomplete. We remand this case to the trial court for new findings and conclusions 

as required by M.L.B., without hearing new evidence.

Remanded.

BAKER, J., and CRONE, J., concur.