STRAHM v. TISCHLER (2026)

MEMORANDUM DECISION

Case Summary

[1] In 2021, Jami and Jonathan Strahm were granted legal guardianship over Jami's grandchildren, A.T. and R.T. (collectively, Children). Thereafter, Seann Tischler, Children's paternal grandmother, petitioned for and received visitation under the Grandparent Visitation Act. In 2024, Tischler moved to expand her visitation, and the Strahms later requested the court cease Tischler's visitation altogether. In April 2025, the court denied Tischler's motion to expand visitation and modified its initial order to limit Tischler's visitation with R.T. The Strahms now appeal, arguing the court abused its discretion by not terminating Tischler's visitation altogether. We affirm.

Facts and Procedural History

[2] Kaylei (Mother) and Hunter Tischler (Father) (collectively, Parents) were married on May 10, 2018. They had two children: R.T., born in May 2018, and A.T., born in September 2019. Seann Tischler is Children's paternal grandmother. Jami and Jonathan Strahm are Children's maternal grandmother and step-grandfather, respectively.

[3] During the marriage, Parents struggled with substance abuse and domestic violence. In December 2020, Parents placed Children in the Strahms’ care, and the Strahms became Children's legal guardians in May 2021. A few months later, Parents divorced. Throughout this time, Children saw Tischler regularly, but their visits decreased after Father was arrested in August 2022. In August 2023, Tischler filed a petition for grandparent visitation. Following a hearing in January 2024, the trial court awarded Tischler visitation with Children consisting of weekly thirty-minute FaceTime calls and monthly eight-hour weekend visits.

[4] Throughout 2024, Children's mental health deteriorated and they “regress[ed] in their behavior” and “development[.]” Tr. Vol. II p. 108. R.T. was diagnosed with anxiety and post-traumatic-stress disorder, and A.T. was diagnosed with reactive-attachment disorder. A.T. began acting out more, struggled to regulate her emotions, and went from being fully potty trained to having accidents in her pants. R.T. was biting her nails more, sucking her thumbs, and started using “baby talk” again. Id. at 109. In July, R.T. began covering herself up with a blanket and not speaking during FaceTime calls with Tischler.

[5] That same month, Tischler petitioned to modify her visitation to include overnight visits and additional summertime visitation. Thereafter, R.T. only attended one weekend visit in November while A.T. consistently attended visitation. In December, Tischler filed a motion for contempt in which she alleged the Strahms were not making R.T. available for visitation.

[6] The court held a hearing on Tischler's petition to expand visitation and her motion for contempt on March 17, 2025. Dr. Raphael Nunez, Children's pediatrician, and Jillorna Uceny, Children's therapist, testified and recommended that Children's visitation with Tischler cease until Children's conditions improved. Dr. Nunez believed that forcing visitation would harm Children because “when these types of interactions are forced, that is basically almost like reliving the trauma.” Id. at 108. They also recommended that R.T. be allowed to use her blanket during FaceTime calls. After reviewing footage of Tischler arguing with the Strahms in December, both witnesses observed that R.T. was scared by Tischler's raised tone but A.T. appeared happy to see her and would run to hug her. Tischler testified that R.T. stopped talking to her during Facetime calls and exchanges of Children whereas A.T. enjoyed her visits and called her “Nana.” Id. at 157. The Strahms requested the trial court terminate Tischler's visitation with Children.¹

[7] The court issued the following pertinent findings and conclusions:

30. Therapist Uceny advised that the Strahms conduct, such as placing a physical barrier between [R.T.] and [Tischler], affirmed to [R.T.] that they were protecting her from [Tischler] and that [Tischler] was someone from whom the [R.T.] needed protection.

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31. Therapist Uceny further advised that she did not observe the same reactions from [A.T.], who would run the [sic] [Tischler's] arms and yell “Nana.”

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36. [R.T.] is diagnosed with anxiety and PTSD. [A.T.] is diagnosed with reactive attachment disorder from trauma. The children are each prescribed medication, with some medication dosages equaling those taken by adults. [Dr. Nunez] described that [A.T.] is acting out more, has trouble regulating emotions, and wets her pants. [R.T.] exhibits her diagnoses through biting her nails and engaging in baby talk.

37. ․ Dr. Nunez acknowledged that [A.T.] appears to have a good relationship with [Tischler]․ Ultimately, Dr. Nunez recommended that visitation stop, until progress can be made in a positive direction.

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38. ․ [T]he Court does not find that the source of said regression is entirely attributable to [Tischler]. First, the children have suffered from mental health problems since the inception of this matter. As can be the case with all mental health concerns, the mental health of children can be caused by a variety of reasons. Here, the children come from a difficult background. It is likely that th[e]children have witnessed physical abuse between their parents. In addition, the parents all but abandoned the children with the Strahms for a significant period of time. To complicate matters further, the parents are bouncing in and out of the children's lives, likely causing instability and stress. However, no matter the cause, it is clear that [R.T.], specifically, is regressing.

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44. The Court is tasked with balancing whether to expand visitation with children who are regressing, or removing [Tischler] from the children's life, causing yet another familial change․ It seems to the Court that the grandparent visitation order needs to be modified to align with what is in their best interests at this time.

App. Vol. II pp. 30-32. The court denied Tischler's petition to expand visitation and motion for contempt on April 28. However, the court modified its initial order awarding grandparent visitation. R.T. is no longer required to participate in FaceTime calls, may use her blanket during FaceTime calls, and is no longer required to participate in weekend visits until it is determined to be therapeutically appropriate. [Id. at 32]. The court made no changes to A.T.’s visitation with Tischler. [Id.]. The Strahms now appeal.

Discussion and Decision

[8] As an initial matter, Tischler did not file an appellee's brief. When the appellee fails to file a brief on appeal, we may reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004). In this context, prima facie error is defined as “at first sight, on first appearance, or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006). This rule was established for our protection so that we can be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. McGill, 801 N.E.2d at 1251.

[9] Historically, grandparents did not have a common-law right to visitation with a grandchild. In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013). This is because grandparents do not have the legal rights of parents and do not possess a constitutional liberty interest with their grandchildren. Fergason v. Brooks, 189 N.E.3d 1102, 1104 (Ind. Ct. App. 2022). “In contrast, parents do have a constitutionally recognized fundamental right to control the upbringing, education, and religious training of their children.” Hicks v. Larson, 884 N.E.2d 869, 874 (Ind. Ct. App. 2008), trans. denied. But recognizing that “a child's best interest is often served by developing and maintaining contact with his or her grandparents,” Indiana has enacted Indiana Code Section 31-17-5-1, et seq., also known as the Grandparent Visitation Act, which allows grandparents in some cases to assert a right to visitation. Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999). The Act contemplates only “occasional, temporary visitation” that does not substantially infringe on a parent's fundamental right “to raise their children as they see fit[.]” Id.

[10] The Strahms argue the trial court erred in entering its order modifying grandparent visitation. Under the Act, a “court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.” Ind. Code § 31-17-5-7 (1997). We review a trial court's order modifying grandparent visitation for an abuse of discretion. D.G. v. W.M., 118 N.E.3d 26, 29 (Ind. Ct. App. 2019), trans. denied. A court abuses its discretion when its decision is contrary to law or is against the logic and effect of the facts and circumstances before the court. Id.

[11] The Strahms argue the trial court abused its discretion by failing to apply the factors enumerated in McCune v. Frey, 783 N.E.2d 752 (Ind. Ct. App. 2003), and by not conducting a sufficient best-interests analysis as to A.T. We disagree.

I. McCune Factors

[12] First, the Strahms argue the court abused its discretion by not applying the four factors enumerated in McCune. Our Supreme Court expressly adopted these factors to “implement the constitutionally protected right of fit parents to make child rearing decisions, and reflect the significant burden of proof grandparents must carry to override those decisions.” M.L.B., 983 N.E.2d at 587. However, McCune applies when “confronted with a child custody dispute or an initial petition for grandparent visitation[.]” D.G., 118 N.E.3d at 30 (emphasis added). Because the court had already granted Tischler's initial petition and was ruling on a petition to modify grandparent visitation, McCune does not apply. Fergason, 189 N.E.3d at 1107 n.3. To the extent the Strahms argue the court erred in its initial order by not giving their wishes special weight under McCune, this argument also fails because they did not file a direct appeal of the initial order in 2024. See In re Paternity of P.E.M., 818 N.E.2d 32, 37 (Ind. Ct. App. 2004) (father waived right to challenge initial grandparent visitation award by not filing a direct appeal).²

II. Best Interests Analysis

[13] The Strahms argue the court failed to conduct a best-interests analysis as to A.T. As we stated above, the Grandparent Visitation Act provides that a “court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.” I.C. § 31-17-5-7. “In crafting an order pertaining to visitation, the paramount concern is the best interests of the child.” Fergason, 189 N.E.3d at 1107. “While explicit findings may not be required, the trial court must determine that the modification is in the child's best interests.” Id.

[14] Here, the trial court made extensive findings on both A.T. and R.T.’s mental health diagnoses, their symptoms, and how they were regressing. The court found that both Dr. Nunez and Therapist Uceny recommended suspending visitation but also recognized signs that A.T. had a good relationship with Tischler. R.T. was scared by Tischler's tone and did not participate in visitation whereas A.T. consistently attended visits, would run to hug Tischler, and called her “Nana.” Based on these findings, the court determined it was in Children's best interests to modify R.T.’s visitation and leave A.T.’s visitation unchanged. While the court did not make explicit findings regarding only A.T.’s best interests, its findings demonstrate that it considered her best interests and determined her visitation with Tischler should not be changed. See In re Paternity of P.R., 940 N.E.2d 346, 351 (Ind. Ct. App. 2010) (affirming trial court's custody modification order in which it made no explicit best-interests findings but its “extensive findings” nevertheless demonstrated that it made best interests determinations). We cannot say the court abused its discretion by not terminating A.T.’s visitation with Tischler.³

[15] Affirmed.

FOOTNOTES

1.   The Strahms did not file their own petition requesting visitation modification or make a request during the hearing. However, the Strahms’ tendered proposed order included language to terminate Tischler's visitation with Children. Because the Strahms’ proposed order is not included in the Appendix, we take judicial notice pursuant to Indiana Appellate Rule 27 and Indiana Evidence Rule 201. See Horton v. State, 51 N.E.3d 1154, 1156 (Ind. 2016) (taking judicial notice under Evidence Rule 201 of documents that were part of the Record on Appeal as defined in Appellate Rule 27).

2.   Even if we were reviewing the initial order, it is unclear whether McCune would be applicable, given McCune and its progeny specifically apply to a child's parent and the Strahms are not Children's parents. This Court has not explicitly held the McCune analysis is required in situations involving a non-parent and a grandparent. Compare Romeo v. McVey, 167 N.E.3d 361, 366 (Ind. Ct. App. 2021) (holding that McCune and its progeny specifically apply to the child's parents and not to an aunt acting as the child's caretaker), with Welbourne v. Mays, 165 N.E.3d 117, 124 (Ind. Ct. App. 2021) (remanding for particularized findings in visitation dispute between permanent legal guardian and grandparent). However, given the procedural posture of this case, we need not address this issue.

3.   The Strahms also challenge portions of Finding 6 and Finding 9 in the court's initial order that were later incorporated into its March 2025 order. Because the remaining findings support the trial court's conclusions and ultimate decision, we need not address this argument. See Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015) (affirming trial court after disregarding challenged findings and concluding unchallenged findings were sufficient to support judgment), trans. denied.

Scheele, Judge.

Brown, J., and Felix, J., concur.