James McElroy, Appellant-Respondent, v. Robert Leppert and Christa Leppert, Appellees-Petitioners. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] James McElroy appeals the trial court's order granting visitation with his son to his son's maternal grandparents, Robert and Christa Leppert. Concluding that the trial court's judgment ordering grandparent visitation is not clearly erroneous but that the court erred by ordering therapy and the sharing of the extracurricular schedule, we affirm in part and reverse and remand in part with instructions.

Facts and Procedural History

[2] Robert (Grandfather) and Christa (Grandmother) Leppert (collectively, Grandparents) are the parents of Lindsey. Lindsey and McElroy married and had one child together, I.M. Lindsey died unexpectedly in December 2022 when I.M. was eight years old.

[3] Prior to Lindsey's death, I.M. had a close relationship with Grandparents. Grandmother picked up I.M. from school and took him back to Grandparents’ house two to three days a week. In addition, Lindsey, McElroy, and I.M. would visit or share a meal with Grandparents several times a week and take family vacations with Grandparents. After Lindsey's death, McElroy and I.M. continued these visits until September 2023, when McElroy and Grandparents had a disagreement. Thereafter, McElroy denied visitation to Grandparents.

[4] In October, Grandparents petitioned for visitation with I.M. Following a hearing, the court granted Grandparents’ request for visitation and entered a temporary order for weekly four-hour visitation, birthday and holiday visitations, weekly one-hour phone call visitation, notification to Grandparents of I.M.’s activities, and Grandparents’ enrollment in grief counseling. Appellant's App. Vol. II, pp. 61-62 (Order Granting Grandparent Visitation).

[5] In March 2024, after the court's in camera interview of I.M. followed by another evidentiary hearing, the court entered a new order that modified its previous order and admonished the parties to get along, avoid speaking negatively about the other in front of I.M., and encourage I.M. to have a positive relationship with all members of his family. Id. at 101-03 (Order on Review Hearing). The court further ordered McElroy to unblock Grandparents on his phone and add Grandparents’ number to I.M.’s phone so that he could communicate directly with Grandparents. Id. at 102. The court adjusted visitation to monthly five-hour visits and permitted Grandparents to contact I.M. via phone call or video call but did not order a schedule for such visitation. Id. at 103. All parties were ordered to cooperate with the CASA (Court Appointed Special Advocate) and to continue counseling. Id.

[6] A final hearing was held and an additional in camera interview of I.M. was conducted on December 4, 2024. The parties submitted proposed findings and conclusions, and the court entered its order on January 24, 2025. The court ordered Grandparents to have weekly four-hour evening visitations with I.M. and permitted I.M. to choose the day of the week for those to occur. Id. at 22 (Findings of Fact, Conclusions of Law, and Judgment). The court also ordered fourteen hours of weekend visitation per month with the particular weekend being chosen by I.M.; birthday and holiday visitations; and one-week summer visitation. Id. at 23-24.

[7] The court further ordered McElroy to allow I.M. to receive gifts from the Grandparents and maternal family members and to bring such gifts to McElroy's home, and it prohibited McElroy from destroying, hiding, throwing away, or damaging such gifts, generally, and the stuffed bear made from Lindsey's jacket, specifically. Id. at 24-25. Therapy sessions were ordered to be continued, and McElroy was ordered to provide Grandparents with I.M.’s extracurricular schedule. Id. at 25. The court again implored the parties to put aside their animosity and get along for I.M.’s sake and admonished them not to speak negatively about one another when I.M. is present or within range of hearing. Id. at 26. McElroy now appeals.

Issues

[8] McElroy presents three issues for our review, which we consolidate and restate as:

I. Whether the trial court erred by concluding that visitation with Grandparents is in I.M.’s best interests.

II. Whether the trial court erred by ordering visitation that is outside the scope of that provided for in the Grandparent Visitation Act.

Additionally, Grandparents request an award of appellate attorney fees.

Discussion and Decision

[9] The Grandparent Visitation Act requires trial courts to issue findings and conclusions when ruling on a grandparent's petition for visitation. Ind. Code § 31-17-5-6 (1997). Accordingly, on review of a trial court's order concerning grandparent visitation, we apply our familiar Trial Rule 52 standard of review: first we determine whether the evidence supports the findings and then whether the findings support the judgment. Megyese v. Woods, 808 N.E.2d 1208, 1213 (Ind. Ct. App. 2004). Under this standard, a trial court's findings or judgment shall not be set aside unless they are clearly erroneous. Id.; Ind. Trial Rule 52. Findings are clearly erroneous when the record lacks any evidence to support them. Hicks & Sons, LLC v. Carewell Int'l, LLC, 173 N.E.3d 270, 276 (Ind. Ct. App. 2021). A judgment is clearly erroneous when it is unsupported by the findings and the conclusions that rely on those findings. Id.

[10] In conducting our review, we consider only the evidence favorable to the trial court's judgment without reweighing the evidence or reassessing the credibility of witnesses. Harper v. S&H Leasing, LLC, 260 N.E.3d 960, 967 (Ind. Ct. App. 2025) (quoting Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind. Ct. App. 2011), trans. denied). In addition, we review questions of law de novo. Hicks & Sons, 173 N.E.3d at 276. Our review of grandparent visitation orders “is conducted with a ‘preference for granting latitude and deference to our trial judges in family law matters.’ ” In re Visitation of L-A.D.W., 38 N.E.3d 993, 997 (Ind. 2015) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)).

I. Visitation in Best Interests of Child

[11] McElroy contends the trial court erroneously concluded that visitation with Grandparents is in I.M.’s best interests. Our society recognizes the important role grandparents play as members of the extended family, and the Grandparent Visitation Act represents legislative recognition that a child's best interests are often served by developing and maintaining contact with grandparents. Megyese, 808 N.E.2d at 1213. To that end, the Act provides that the court may grant visitation rights if it determines that visitation is in the best interests of the child.¹ Ind. Code § 31-17-5-2(a) (2004).

[12] In its findings and conclusions in a grandparent visitation matter, a trial court is required to address four specific factors: (1) the presumption that a fit parent acts in his or her child's best interests; (2) the special weight that must be given to a fit parent's decision to deny or limit visitation; (3) whether the parent has denied visitation or simply limited it; and (4) whether the grandparents have established that visitation is in the child's best interests. In re Guardianship of J.E.M., 870 N.E.2d 517, 520 (Ind. Ct. App. 2007). And, in determining the best interests of the child, the court may consider whether a grandparent has had or has attempted to have meaningful contact with the child. I.C. § 31-17-5-2(b).

A. Fit Parent: Presumption and Special Weight

[13] McElroy challenges the trial court's determination that he is not fit to make a decision about visitation between Grandparents and I.M. His argument consists only of his statement that his “actions in commencing therapy for [I.M.] on his own accord, reflect that he was a fit parent capable of determining what was in his son's best interest.” Appellant's Br. p. 15.

[14] On this topic, the court concluded:

11. The evidence presented made clear that Father — actively or passively — expressed displeasure and hatred about the Grandparents in front of the minor child. Several witnesses testified that Father regularly made negative comments about the Grandparents in front of the minor child. The Court would note that Father's statements clearly put the minor child in a very compromising and difficult position, making it challenging for the minor child to express his true feelings about the Grandparents and Grandparental visitation.

12. It is clear that the minor child wants visitation with his Grandparents; but desires some say as to the schedule of said visitation.

13. It would be detrimental to the health and stability of the minor child's life were this Court to not Order visitation rights, due to Father's explicit statements that he would not permit Grandparents to see minor child unless Ordered to do so by the Court.

14. [T]he Court NOW FINDS that [McElroy] was not a fit person to make the decision that the minor child should not see the Grandparents. [McElroy]’s anger, acrimony, and seemingly absolute hatred of the Grandparents, and his willingness to impart these feelings to the minor child, at times, render him unfit to make the decision as to the minor child's best interests as to grandparental visitation.

Appellant's App. Vol. II, pp. 21-22 (Findings of Fact, Conclusions of Law, and Judgment).

[15] The court's findings that support Conclusion #14 are:

42. [Mother of I.M.’s friend] testified that [McElroy] would often speak negatively about the Grandparents in front of the minor child. She further testified that [McElroy] also said in front of the minor child that [McElroy] “was spending a lot of money on lawyers” and that the minor child “shouldn't be going” to see the Grandparents.

․

51. [Son of McElroy's former girlfriend] testified that the minor child was often happy and excited when he came back from these visits.

․

53. [Son of McElroy's former girlfriend] testified that when the minor child spoke positively about the Grandparents in earshot of Father, Father became irritated[.]

․

61. [McElroy's former girlfriend] testified that she would often witness the minor child's demeanor when he came home from a visit with his Grandparents and testified that he appeared to be happy upon his return. However, as soon as Father saw the minor child visibly happy, [she] observed that Father would appear frustrated seeing the minor child happy about the visit with his Grandparents.

62. [McElroy's former girlfriend] testified that [McElroy] frequently mentioned to [her] that [McElroy] did not want the minor child to see his Grandparents.

63. [McElroy's former girlfriend] testified that [McElroy] told the minor child that his Grandparents are “controlling” and told the minor child that he “did not want” him to have visitation with his Grandparents.

64. [McElroy's former girlfriend] testified that the minor child told her that he was upset he “could not see his Grandparents more often.”

․

78. The CASA testified that [McElroy] told her that he hated the Grandparents, and stated there was “no way in hell” the Grandparents would get any visitation that was not Court Ordered. The CASA asked [McElroy] if his anger could be influencing the minor child's feelings about the Grandparents. [McElroy] answered “I am sure it does, how could it not? I am honest with him, and I will never lie to him. The Grandparents are horrible people, and I hate them.”

79. The CASA testified that the aforementioned statement was made in front of - and in full earshot of the minor child.

80. The CASA testified that when she asked [McElroy] to not to [sic] speak disparagingly about the Grandparents in front of the minor child, [McElroy] said “I will not keep anything from him.” [See Petitioner's Exhibit l, page 3.]

Id. at 9, 11, 12, 15.

[16] McElroy does not contest any of these findings or the evidence supporting them, all of which clearly show that his decision to terminate I.M.’s relationship with Grandparents, who were a very important part of I.M.’s daily life until his mother's death, was not the decision of a fit parent with regard to I.M.’s emotional needs. We will reverse only upon a showing that the findings or judgment are clearly erroneous, and McElroy has failed to meet that burden here. See Megyese, 808 N.E.2d at 1213; T.R. 52. Furthermore, McElroy's argument is a request to reweigh the evidence, which we cannot do. See Harper, 260 N.E.3d at 967.

[17] If a parent is fit, the trial court is obligated to presume that the parent acted in the child's best interests in making visitation decisions. In re Visitation of C.S.N., 14 N.E.3d 753, 758 (Ind. Ct. App. 2014). Acting under this presumption, the court must give special weight to the parent's visitation decision. Id. (quoting In re Visitation of C.L.H., 908 N.E.2d 320, 328 (Ind. Ct. App. 2009)). However, the presumption that the parent acted in the child's best interests is rebuttable, and the grandparent bears the burden of rebutting. In re Visitation of C.S.N., 14 N.E.3d at 758 (quoting Hicks v. Larson, 884 N.E.2d 869, 874-75 (Ind. Ct. App. 2008), trans. denied).

[18] The trial court acknowledged both the first and second factors consisting of the presumption that a fit parent acted in the child's best interests when making a decision about grandparent visitation and the special weight that must be given to a fit parent's decision regarding grandparent visitation. See Appellant's App. Vol. II, p. 20 (Conclusion ##4, 5). However, as reflected in the court's findings and conclusions set out and discussed above, the court determined that McElroy was not fit to make a decision concerning grandparent visitation. Only if the parent is fit to make the visitation decision must the trial court (a) presume the parent acted in the child's best interest and (b) acting under this presumption, give special weight to the parent's visitation decision. See In re Visitation of C.S.N., 14 N.E.3d at 758. Because the court here determined that McElroy was not fit to make this decision, the presumption and special weight do not apply.

[19] The presumption that the parent acted in the child's best interests is a rebuttable one. Id. And although McElroy was not entitled to the presumption given the court's determination that he was not fit in this instance, the court nevertheless proceeded to evaluate Grandparents’ evidence related thereto. The court ultimately concluded that Grandparents met their heightened burden of proof and rebutted the presumption that McElroy acted in the best interests of I.M. by denying visitation. Appellant's App. Vol. II, p. 22 (Conclusion #16).

B. Denial or Limitation of Visitation

[20] As found by the trial court, regular family gatherings continued for another ten months until McElroy and Grandparents had a dispute about the circumstances of Lindsey's death. Id. at 3 (Findings of Fact ##4, 5). At that point, McElroy ceased communication with Grandparents. Id. (Finding of Fact #6 ). Grandparents offered to meet with McElroy to reach an agreement concerning visitation, but McElroy refused. Id. (Finding of Fact #8). During the pendency of this action, McElroy stated to the CASA that “there was ‘no way in hell’ the Grandparents would get any visitation that was not Court Ordered.” Id. at 15 (Finding of Fact #78). The court gave weight to and concluded that McElroy would deny Grandparents visitation entirely absent a court order. Id. at 21 (Conclusion #10). McElroy's complete denial of visitation thus strengthens “ ‘the case for judicial intervention.’ ” In re Visitation of C.S.N., 14 N.E.3d at 762 (quoting In re Visitation of M.L.B., 983 N.E.2d 583, 587 (Ind. 2013)).

C. Best Interests of Child

[21] When evaluating the best interests of the child, the court may consider whether a grandparent has had or has attempted to have meaningful contact with the child. I.C. § 31-17-5-2(b). The trial court's findings with regard to this fourth factor are amply supported by the evidence. The court found that Grandparents had developed a close relationship with I.M., playing an important role in his life and spending significant time with him. Prior to Lindsey's death, Grandmother would routinely pick up I.M. from school, and he would spend time at Grandparents’ house two to three days a week. At Grandparents’ house, I.M. and his cousins spent time together. Further, McElroy, Lindsey, and I.M. would frequently go to Grandparents’ house for family meals and on vacations with Grandparents and Lindsey's siblings and their families. Grandparents still saw I.M. and McElroy after Lindsey's death. However, following McElroy's disagreement with Grandparents in September 2023, he denied Grandparents all visitation with I.M.

[22] Grandmother testified that she believes the visitation is in I.M.’s best interests because “he needs extended family; everybody needs you know people in their corner and ․ we've helped raise [I.M.] since he was born and we've kept him while they [McElroy] and Lindsey both worked and – and we've loved him and – and we're hopefully partially the reason that he is such a good kid. We just want to be part of his life.” Tr. Vol. III, pp. 84-85. In addition, the CASA recommended that Grandparents have weekly visitation with I.M., and she testified to her belief that Grandparents’ requests were reasonable and in I.M.’s best interests. The best interests factor is satisfied here.

[23] McElroy raises several concerns with the court's ultimate conclusion that visitation with Grandparents is in I.M.’s best interests, and we address each in turn. First, McElroy argues that “no findings addressed the effect a forced visitation schedule would have upon I.M. considering his stated opposition to such a schedule.” Appellant's Br. p. 20.

[24] McElroy points to no evidence that would support such findings, and our review of the record reveals that no such evidence was presented upon which the court could make the findings that McElroy suggests. As findings must be supported by the evidence, Hicks & Sons, 173 N.E.3d at 276, there is no error here by the trial court for failing to make findings for which there was no support in the evidence.

[25] However, we note that, in implementing its order, the court did consider I.M.’s desire to have some control over the visitation schedule. See Appellant's App. Vol. II, p. 21 (Conclusion #12). Yet, the court had to balance that with the fact that visitation would not occur at all without court intervention due to McElroy's refusal to permit any visitation that was not court ordered. See id. (Conclusion #13). Accordingly, the court instituted a visitation schedule that gave I.M. the ability to decide the day of the week, the weekend, the specific days for holidays, and the specific week for summer visitation. Id. at 22-24 (Judgment ¶¶ 1, 2, 4, 5, 7).

[26] McElroy next claims that, in ordering visitation, the court ignored evidence of Grandparents’ belief that McElroy was responsible for Lindsey's death; I.M.’s report that Grandparents spoke unkindly about McElroy; I.M.’s report of feeling coerced and uncomfortable at visitation; I.M.’s susceptibility “to panic and anxiety attacks when forced to attend visits with Grandparents;” and the difficult situation I.M. is in. Appellant's Br. pp. 20, 21.

[27] This is another attempt by McElroy to have us reweigh the evidence and reassess witness credibility, which we cannot do. See Harper, 260 N.E.3d at 967. Moreover, a trial court is not required to accept as necessarily true a parent's reasons for denying or restricting visitation with grandparents. Spaulding v. Williams, 793 N.E.2d 252, 260 (Ind. Ct. App. 2003). This is true even when, unlike in this case, special weight is being given to a fit parent's decision to deny or limit visitation. Id. After weighing the evidence and judging witness credibility, it is the court's prerogative to determine “whether a parent's alleged justification for denying or restricting visitation with grandparents holds water.” Id. Therefore, the trial court was not obligated to blindly accept McElroy's justifications for denying visitation to Grandparents and was free to weigh the evidence and judge the witnesses’ credibility.

[28] Nonetheless, we briefly comment on the evidence. The court's decision does not reflect that it overlooked the evidence that McElroy and Grandparents had a falling out over questions surrounding Lindsey's death. Rather, the court recognized the hostility, as it was the primary reason for McElroy denying Grandparents visitation with I.M., and addressed such in its decision. The court noted McElroy's extreme animosity toward Grandparents and his negative comments about them in front of I.M. Appellant's App. Vol. II, pp. 21, 22 (Conclusion ##11, 14). Consequently, the court ordered the parties to refrain from speaking negatively about the other in I.M.’s presence, reminded them that I.M. has suffered a great loss, and urged them to put aside their differences and to support I.M. as they all grieve. Id. at 26 (Judgment ¶¶ 16, 17).

[29] McElroy mischaracterizes the evidence about I.M. feeling “coerced and uncomfortable.” Appellant's Br. p. 20. At the hearing, McElroy called I.M.’s counselor, Alexandra LeMasters, as a witness. LeMasters’ notes reflect that I.M. was referring, not to visitation itself, but to his desire to set his own visitation schedule rather than having to follow the court's order. See Tr. Vol. III, p. 59. As we discussed above, the court addressed this as reasonably as it could, given that I.M. is only ten years old, by giving I.M. some autonomy in certain visitation decisions. See Appellant's App. Vol. II, pp. 22-24 (Judgment ¶¶ 1, 2, 4, 5, 7).

[30] McElroy's allegation that I.M. “was prone to panic and anxiety attacks when forced to attend visits” is also a mischaracterization of the evidence. LeMasters noted that I.M. had informed her he had once experienced “being very overwhelmed with his emotions” surrounding this entire situation. Tr. Vol. III, pp. 59-60. Although the feeling occurred while he was having visitation with Grandparents, it was not suggested that Grandparents were the cause of this feeling. See id.

[31] Lastly, we turn to McElroy's allegation that the “trial court completely ignored the ‘adult situation’ that it was placing I.M. in as suggested by his therapist.” Appellant's Br. p. 21. It is completely inaccurate to suggest the trial court put I.M. in this difficult situation. In this segment of her testimony, LeMasters was referring to the fact that I.M. is being forced to choose between his family members, all of whom he loves and does not want to disappoint. And the court recognized that it is McElroy who is placing I.M. in this “very compromising and difficult position.” See Appellant's App. Vol. II, p. 21 (Conclusion #11).

[32] In sum, the court did not ignore any evidence. Rather, the court weighed the evidence, judged the witnesses’ credibility, and concluded that McElroy's hostility toward Grandparents due to their questions surrounding their daughter's death did not “hold water” as a justification for denying visitation between I.M. and Grandparents.

II. Scope of Visitation

[33] Lastly, McElroy alleges the trial court erred by ordering visitation that is outside the scope of visitation provided for in the Act.² He specifically cites the court's order that (A.) he allow I.M. to receive gifts from Grandparents and Lindsey's family and to bring the gifts home, including the stuffed bear made from Lindsey's jacket, and he not destroy, hide, or damage any of these gifts, including the stuffed bear; (B.) all parties refrain from speaking negatively about the other when I.M. is present or in hearing range; (C.) he allow I.M. to travel with Grandparents; (D.) he allow I.M. to participate in therapy with Grandparents and cooperate in the scheduling thereof; and (E.) he provide Grandparents with I.M.’s extracurricular schedule. See Appellant's App. Vol. II, pp. 24-25, 26 (Conclusion ##8-13, 16).

[34] “The Grandparent Visitation Act does not address contact between grandparents and grandchildren other than ‘visitation,’ a term that our legislature has not defined.” Spaulding, 793 N.E.2d at 263. We have previously acknowledged that “any contact or communication ordered, other than visitation, should be applied narrowly to preserve and protect a parent's rights.” Id. And grandparent visitation may not “substantially infringe on a parent's fundamental right ‘to control the upbringing, education, and religious training of their children.’ ” In re Visitation of K.M., 42 N.E.3d 572, 580 (Ind. Ct. App. 2015) (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 462 (Ind. 2009)). It is of note that, generally, the parties’ earlier pattern of visitation suggests or is indicative of an amount that might now be awarded without unduly interfering in a parent's fundamental right to direct their child's upbringing. In re Visitation of M.L.B., 983 N.E.2d at 587. Moreover, in grandparent visitation disputes, as in all visitation controversies, the courts’ paramount concern is the best interests of the child. Moorman v. Andrews, 114 N.E.3d 859, 864 (Ind. Ct. App. 2018) (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013)); see also I.C. § 31-17-5-2 (a).

[35] Upon review of a visitation order, we give substantial deference to the trial court's determination of family law matters. In re Visitation of L-A.D.W., 38 N.E.3d at 998. “ ‘[A]fter it has been determined that court-ordered visitation is merited,” the fashioning of the visitation order “is generally a matter that is entrusted ‘to the sound discretion of the trial court.’ ” In re Visitation of K.M., 42 N.E.3d at 580 (first quoting In re Visitation of L-A.D.W., 38 N.E.3d at 997; then quoting K.I. ex rel. J.I., 903 N.E.2d at 462). “Whether the trial court has abused its discretion in crafting a visitation schedule ‘is best determined upon the specific circumstances of each case.’ ” In re Visitation of K.M., 42 N.E.3d at 581 (quoting In re Visitation of L-A.D.W., 38 N.E.3d at 999).

A. Gifts

[36] McElroy asserts the court's order to allow gifts in his home is beyond the scope of visitation. In support of his argument, he cites this Court's decision in Spaulding v. Williams, 793 N.E.2d 252 (Ind. Ct. App. 2003) reversing the trial court's order that directed the father to allow packages from the grandparents to go to the child without interference.

[37] McElroy misrepresents our decision in Spaulding. There, the father objected to the language in the court's order providing that the grandparents “shall have the right to communicate privately by e-mail, faxes, cards, letters, and packages without interference by [father].” 793 N.E.2d at 262. On appeal, we found the provision overly broad and suggested that the trial court insert the word “unreasonable” such that the grandparents would be permitted to send written communications and packages to the child without unreasonable interference from the father. Id. at 264. We did not strike the provision allowing for packages from the grandparents to go to the child.

[38] The evidence here shows that when I.M. returned home with gifts following visitation with Grandparents, McElroy would not allow him to keep them. The gifts were placed in a different room of the house or the garage to be returned to Grandparents, which upset I.M. Tr. Vol II, pp. 180, 194; Tr. Vol. III, pp. 77-78. One special gift in particular is a bear Grandmother had made for I.M. from his mother's jacket, but McElroy would not allow I.M. to take it home. Tr. Vol. III, pp. 78-79. Further, at Christmas 2023, just one year after his mother's death, I.M. returned home from visitation with Christmas cookies, and McElroy made him throw them away. Tr. Vol. II, pp. 179-80. Additionally, LeMasters acknowledged that I.M. would be affected by McElroy's decision not to let any gifts from Grandparents into the house and that McElroy's actions would send a negative message to I.M. regarding Grandparents. Tr. Vol. III, p. 57.

[39] McElroy does not suggest that allowing I.M. to receive and keep gifts from Grandparents and other maternal family members in any way interferes with his right to direct I.M.’s upbringing, education, or religious training. On the contrary, the evidence demonstrates that it is in I.M.’s best interests to be able to enjoy these gifts from his extended family, especially the bear made from his mother's jacket. We find the trial court did not abuse its discretion by including this provision in its order.

B. Negative Speech

[40] McElroy next contends that the trial court's directive to the parties to refrain from speaking negatively about one another, especially when I.M. is present or within hearing, exceeded the scope of visitation. Appellant's App. Vol. II, p. 26 (Judgment ¶ 16). Given that McElroy recommended this very same provision in his proposed findings and conclusions, see Appellees’ App. Vol. II, p. 32 (¶ 23), it is disingenuous for him to now suggest it is inappropriate.

C. Out-of-state Travel

[41] Additionally, McElroy alleges the court's order impermissibly permits Grandparents to take I.M. out of state for one week each year. See Appellant's App. Vol. II, p. 24 (Judgment ¶ 7). Not only does the court's order not identify the travel as out of state, but also it notes that McElroy is invited to attend with I.M., as Grandmother testified at the hearing. See Tr. Vol. III, p. 82.

D. Therapy and E. Extracurricular Schedule

[42] Lastly, McElroy challenges the court's order providing that he allow I.M. to participate in therapy with Grandparents and that he provide Grandparents with I.M.’s extracurricular schedule. See Appellant's App. Vol. II, p. 25 (Judgment ¶¶ 11-13).

[43] As we are to narrowly apply any contact or communication other than visitation, we agree that the order requiring McElroy to send I.M. to therapy with Grandparents infringes upon McElroy's parental rights to control the upbringing of his child. And, as we have previously held that a court may not order a parent to share information regarding the child with a grandparent, we must also agree that the trial court erred by ordering McElroy to give Grandparents the schedule of I.M.’s extracurricular activities. See Fergason v. Brooks, 189 N.E.3d 1102, 1104 (Ind. Ct. App. 2022) (agreeing that grandmother was not entitled under Grandparent Visitation Act to child's school records or information relating to extracurricular activities and noting that access to such information historically belonged to parent). We note that I.M. has a cell phone, and in its March 2024 order, the court directed McElroy to add Grandparents’ number to I.M.’s phone so that he could communicate directly with Grandparents. Thus, I.M. has the ability to initiate contact with Grandparents and inform them of his activities.

[44] In sum, we find no error in the order of visitation as determined by the trial court with regard to gifts from Grandparents, the bear made from Lindsey's jacket, negative speech, and summer visitation. However, the trial court abused its discretion in ordering McElroy to allow I.M. to participate in therapy with Grandparents and to provide Grandparents with I.M.’s extracurricular schedule.

III. Appellate Attorney Fees

[45] Grandparents request appellate attorney fees under Appellate Rule 66(E), which provides us with discretionary authority to award a party attorney fees in limited circumstances where the appeal is “permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). A strong showing is required to justify an award of appellate attorney fees, and such showing is something more egregious than mere lack of merit. Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1033 (Ind. Ct. App 2018), trans. denied. Further, we must employ extreme restraint when exercising our authority to award these fees due to the potential chilling effect upon the exercise of the right to appeal. Id.

[46] Claims for appellate attorney fees may be based on procedural and/or substantive bad faith. Duncan v. Yocum, 179 N.E.3d 988, 1005 (Ind. Ct. App. 2021).

Procedural bad faith ․ occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court.

Id. To prevail on a substantive bad faith claim, it must be shown that the party's contentions are utterly devoid of all plausibility. Id.

[47] To support their claim of procedural bad faith, Grandparents point to McElroy's numerous incorrect case citations, failure to provide pin-point citations, attributing cited material to the wrong case, and/or crediting a decision to the wrong court. While these procedural violations are exasperating, we cannot say McElroy's violations on the whole rise to the level of a flagrant disregard of the form and content requirements of the appellate rules or that his brief was written in a manner calculated to require the maximum expenditure of time by the opposing party and this Court.

[48] For their substantive bad faith claim, Grandparents allege that McElroy advanced arguments that were waived or constitute invited error. However, because we have concluded that McElroy identified reversible error on appeal concerning therapy and the extracurricular schedule, we are unpersuaded that Grandparents are entitled to appellate damages on that basis. And although we found McElroy's argument on negative speech disingenuous, we cannot say that his appeal was permeated with frivolous claims or brought in bad faith.

[49] Consequently, we deny Grandparents’ request for appellate attorney fees.

Conclusion

[50] Based on the foregoing, we conclude that the trial court did not err in determining that McElroy was not fit to make a decision concerning grandparent visitation and that the court's judgment ordering grandparent visitation is not clearly erroneous. Further, the court did not err in its order of visitation with regard to gifts, the bear, negative speech, and summer visitation. However, the court erred by ordering therapy and the sharing of the extracurricular schedule. Finally, we deny Grandparents’ request for appellate attorney fees.

[51] Accordingly, we affirm in part and reverse and remand in part with instructions to issue a revised judgment removing the two erroneous requirements.

[52] Affirmed in part and reversed and remanded in part.

FOOTNOTES

1.   The parties here agree that Grandparents have standing to petition for visitation due to the death of I.M.’s mother, Lindsey. See Ind. Code § 31-17-5-1(a)(1) (1997).

2.   Grandparents assert that McElroy waived these claims by not asserting them in the trial court. However, given both that McElroy opposed any and all court-ordered visitation and that we prefer to decide cases on their merits, we address McElroy's arguments in this instance. See Correct Roofing, Inc. v. Vasquez, 246 N.E.3d 328, 337 (Ind. Ct. App. 2024).

Robb, Senior Judge.

Judges Brown and Scheele concur. Brown, J., and Scheele, J., concur.