BIBBS v. SPENCER BIBBS (2025)

MEMORANDUM DECISION

Case Summary

[1] Rebecca R. Bibbs (“Grandmother”) appeals the trial court's order finding that she lacked standing to request grandparent visitation over H.R.S. (“Child”). Grandmother raises one issue for our review, namely, whether the Grandparent Visitation Act (“the Act”) is unconstitutional. We affirm.

Facts and Procedural History 1

[2] Child was born on September 7, 2023, to Roland Spencer-Bibbs (“Father”) and Jo Alex Harlan (“Mother”) (collectively, “Parents”). At that time, Parents were not married, but Father was listed on Child's birth certificate. According to Grandmother, who is Father's mother, Father severed ties with her in 2016. Since then, Father and Grandmother have seen each other only three times. After learning of Child's birth, Grandmother filed a petition for visitation with Child. Thereafter, Father and Mother married, and they objected to Grandmother's petition.

[3] In a response to Parents’ filing, Grandmother argued that the Act, codified at Indiana Code Chapter 31-17-5, is unconstitutional because it treated grandparents differently based on the relationship of the child's parents, “disfavor[ing] grandparents of children whose parents are married[.]” Appellant's App. Vol. 2 at 23. Following a hearing, Grandmother filed an “Arguments on Standing.” Id. at 44. In that argument, Grandmother again asserted that the Act's denial of her “access to the Court based on the marital status of [the Parents] violates her” constitutional rights because it “denies Grandparents of children from intact families ‘remedy by due course of law.’ ” Id. at 47, 48. And she asserted that, “as a member of the disfavored class,” she “never can bring herself within the scope that would allow her standing without the occurrence of a family tragedy.” Id. at 49.

[4] Following a hearing, the court entered an order finding that Grandmother “lack[ed] standing to seek grandparent visitation rights under Indiana law” and dismissed Grandmother's petition. Id. at 9. This appeal ensued.

Discussion and Decision

[5] Grandmother, pro se, appeals the court's order finding that she lacked standing to seek grandparent visitation. Initially, we note that Parents have not filed an Appellees’ Brief.

When an appellee fails to file a brief, we apply a less stringent standard of review. We are under no obligation to undertake the burden of developing an argument for the appellee. We may, therefore, reverse the trial court if the appellant establishes prima facie error. “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.”

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations omitted).

[6] Grandmother contends that the court erred when it concluded that she lacked standing under the Act to seek visitation with Child. The Act provides:

(a) 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) subject to subsection (b), the child was born out of wedlock.

(b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the child's father has not established paternity in relation to the child.

Ind. Code § 31-17-5-1. “In order to seek visitation rights with grandchildren, grandparents must have standing to seek those rights under” the Act. Hayes v. Hayes (In re Visitation of J.P.H.), 709 N.E.2d 44, 46 (Ind. Ct. App. 1999). Therefore, if the Act 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.

[7] Grandmother concedes that, pursuant to the Act, she lacked standing to seek visitation after Parents married.² However, she contends that the Act is unconstitutional because it violated her due process and equal protection rights under both the United States and Indiana Constitutions. In reviewing the constitutionality of a statute, we begin with the presumption that the statute is constitutional. Crafton v. Gibson, 752 N.E.2d 78, 90 (Ind. Ct. App. 2001). “When a party challenges the constitutionality of a statute, we start from the presumption that the statute is valid and impose a heavy burden on the challenging party to clearly overcome that presumption.” Steury v. State, 243 N.E.3d 1108, 1114 (Ind. Ct. App. 2024), trans. denied.

[8] “When examining the constitutionality of a statute under substantive due process, a court usually applies a rational basis test.” Crafton, 752 N.E.2d at 90. Similarly, we also apply the rational basis test when we address whether a statute violates the Equal Protection Clause where the unequal treatment is not based on membership in a protected class or a quasi-suspect class.³ See Ind. Bureau of Motor Vehicles v. Simmons, 233 N.E.3d 1016, 1027 (Ind. Ct. App. 2024). Under the rational basis test, “a statute must have a rational relationship to a legitimate government interest.” Crafton, 752 N.E.2d at 90. Governmental action passes the rational basis test if a sound reason may be hypothesized, but the government need not prove the reason to the court's satisfaction. Id.

[9] On appeal, Grandmother asserts that the statute is unconstitutional because it creates two classes of grandparents—those who have grandchildren with married parents and those who do not—and that the two classes are treated differently. In particular, Grandmother asserts that “the right to present the merits of a case are conferred irrationally and arbitrarily on one sub-class of grandparent based on the marital status of the parents,” which she contends is “irrelevant.” Appellant's Br. at 10. Grandmother maintains that neither “the Trial Court nor the Legislature has provided a ‘compelling or legitimate’ reason why one sub-class of grandparent is allowed to seek visitation while another is not.” Id. at 11.

[10] However, this Court has previously addressed and rejected a similar argument. In Lockhart v. Lockhart, the mother and father of a child dissolved their marriage, and father was granted primary physical custody. 603 N.E.2d 864, 865 (Ind. Ct. App. 1992). The father denied the grandparents visitation, and the grandparents filed a petition for visitation. The father and mother filed a motion to dismiss the petition, which the trial court granted.

[11] On appeal, this Court considered whether a prior version of a statute that granted grandparents visitation rights, Indiana Code Section 31-1-11.7-2,⁴ was unconstitutional because it created “two classes of grandparents.” Id. Under that statute, one class of grandparents could petition for visitation “if their child is deceased or has not been awarded custody of the grandchild” but the other class “may not gain visitation privileges if their child is living and has custody of the grandchild.” Id. The grandparents argued that “both classes of persons are grandparents,” such that they are “similarly situated.” Id. We disagreed.

[12] In so holding, the Court stated:

In most instances, a parent who has custody of a child will allow grandparent visitation. When a parent loses his or her custodial rights as a parent, that parent has a reduced right to participate in child-rearing decisions. It is precisely when one parent has less legal control over the child that the grandparent-grandchild relationship may be jeopardized. A grandparent whose child is the noncustodial parent may have difficulty obtaining visitation with the grandchild. Thus, a grandparent whose child is a noncustodial parent is not similarly situated to a grandparent whose child has custody rights.

Although the statute protects one class of grandparents, “[t]he equal protection clauses of the United States and Indiana Constitution do not preclude legislative classification so long as there is a rational and reasonable basis for the classification and so long as it bears a fair relationship to the purpose of the statute.” Geyer v. City of Logansport (1977), 267 Ind. 334, 370 N.E.2d 333, 336. Because of the problems inherent in a situation where a grandparent's child does not have custody, there is a rational and reasonable basis for the classification. The statute is reasonably designed to protect the rights of a certain class of grandparents.

Id. at 865-66 (emphasis added). Accordingly, the Court held that the statute was not unconstitutional.

[13] Although the statute analyzed in Lockhart differs from the Act, the same logic applies. While the Act allows one class of grandparents to seek visitation—those who have grandchildren with a deceased parent, with divorced parents, or who were born out of wedlock— and prohibits the other class from doing so, there is a rational basis for that distinction. Indeed, those grandparents who are afforded the right to seek visitation are those whose grandchild has a parent with less legal control over the child, such that the grandparent-grandchild relationship may be jeopardized and the grandparent may have difficulty obtaining visitation. As we stated in Lockhart, those grandparents are not similarly situated to those who have grandchildren with intact families.

[14] Further, while parents have “a constitutionally recognized fundamental right to control the upbringing, education, and religious training of their children,” grandparents “do not possess a constitutional liberty interest in visitation with their grandchildren.” Swartz v. Swartz, 720 N.E.2d 1219, 1222 (Ind. Ct. App. 1999). This Court has also explained that the Act “was enacted to strengthen familial b[o]nds in an era which has seen a general disintegration of family bonds” and that the policy of the Act “is to promote intergenerational contact and strengthen the bonds of the extended family when the nuclear family has been dissolved.” In re Visitation of J.P.H., 709 N.E.2d at 46 (emphasis in original). And “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of the parent's children.” Troxel v. Granville, 530 U.S. 57, 68-69 (2000).

[15] Thus, contrary to Grandmother's assertions, there is a rational basis for the legislature to treat the two classes of grandparents differently. As such, the Act is not unconstitutional.

Conclusion

[16] The Act is not unconstitutional. And Grandmother does not have standing under the Act to seek visitation with Child. We therefore affirm the court's order.

[17] Affirmed.

FOOTNOTES

2.   While Parents were not married when Child was born, Parents subsequently married. And this Court has held that “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.” In re Visitation of J.P.H., 709 N.E.2d at 47. Thus, while Grandmother had standing to seek visitation when Child was born, she ceased to have standing once Parents married.

3.   There is no dispute that the separate treatment of Grandmother is not based on membership in either a protected or quasi-suspect class.

4.   That statute provided that a court “may not grant visitation under this chapter after May 9, 1989 to a grandparent who is a parent of a person: (1) who is not deceased; and (2) who has been awarded custody of the grandchild.” I.C. § 31-1-11.7-2 (1996). That statute was repealed in 1997 and was replaced by the Act.

Bailey, Judge.

Vaidik, J., and DeBoer, J., concur.