In the Visitation of E.N. (a Minor Child), Matthew Nickles, Appellant-Respondent v. Ruth Roschek and Richard Roschek, Appellees-Petitioners (2026)

MEMORANDUM DECISION

Case Summary

[1] Matthew Nickles (Father) appeals the trial court's award of grandparent visitation to Ruth (Grandmother) and Richard Roschek (Grandfather) (collectively, Grandparents), arguing the court's findings of fact and conclusions thereon are inadequate to support the grandparent visitation order. We agree and remand the case to the trial court to issue new findings and conclusions.

Facts and Procedural History

[2] Father and Tiffany Nickles (Mother) were married and had one child—E.N. (Child)—born in 2018. The couple divorced in 2022. See 64D02-2205-DC-003871. Grandparents are the parents of Mother. Grandparents saw Child two to three times a week prior to the divorce, and continued to see her frequently after the divorce, including acting as supervisors during Mother's supervised parenting time.

[3] In January 2025, Mother died. Thereafter, Grandparents visited with Child approximately two times a month. Grandparents requested additional visits, which Father did not accommodate, citing his and Child's busy schedules. Grandparents also requested overnight visits, but Father “didn't feel comfortable” with overnight visits due to the “sleeping arrangements” at Grandparents’ house. Tr. Vol. II p. 92.

[4] On August 7, 2025, Grandparents filed a petition for grandparent visitation. A two-day hearing on the petition was held in October and November. Thereafter, the trial court issued an order containing only the following four findings and conclusions:

1. The Petitioners are the maternal grandparents of [Child]․ [Child's] Mother, Tiffany Nickles, passed away on January 20, 2025. The Respondent is [Child's] Father.

2. The Court finds that the maternal grandparents have had meaningful contact with [Child] throughout her entire life.

3. The Court further finds it is in the minor child's best interests to continue to have meaningful contact with her maternal grandparents going forward.

4. While Father has made some attempts to allow meaningful contact between [Child] and her maternal grandparents, the Court is not convinced Father will continue to do so in an acceptable manner in the future.

Appellant's App. Vol. II pp. 5-6. The trial court awarded Grandparents the following visitation: (1) a weekend a month (from Saturday at 9 a.m. to Sunday at 6 p.m. during the school year and from Friday at 6 p.m. to Sunday at 6 p.m. in the summer); (2) three 2.5 hour visits a month; (3) an eight-hour visit on both Mother's Day weekend and Easter weekend; (4) a visit on Christmas Eve from 9 a.m. to 8 p.m.; and (5) seven consecutive days in the summer. The court also ordered Grandparents to be allowed one fifteen-minute weekly call with Child and for Father to share Child's extra-curricular schedule with them. Father now appeals.

Discussion and Decision

[5] Father argues the trial court's findings of fact and conclusions of law are insufficient to support its grandparent visitation order. We agree. 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.” McCune v. Frey, 783 N.E.2d 752, 755-56 (Ind. Ct. App. 2003) (internal citations omitted).

[6] 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 chapter 31-17-5, also known as the Grandparent Visitation Act. Swartz v. Swartz, 720 N.E.2d 1219, 1221 (Ind. Ct. App. 1999). The Act allows grandparents in some cases to assert a right to “occasional, temporary visitation” that does not substantially infringe on a parent's fundamental right “to raise their children as they see fit[.]” Id.

[7] When a trial court enters a decree granting or denying grandparent visitation, it is required to set forth findings of fact and conclusions of law. In re K.I., 903 N.E.2d 453, 457 (Ind. 2009); see also Ind. Code § 31-17-5-6 (1997). In those findings and conclusions, the court must address:

(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.

M.L.B., 983 N.E.2d at 586 (Ind. 2013) (citing McCune, 783 N.E.2d at 757-59). “The first three required factors 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.” Id. at 587.

[8] Here, the trial court's order consists of only four findings, one of which merely identifies the parties involved. None of the court's findings recognized the first two McCune factors—the presumption that a fit parent acts in his child's best interests or the special weight given to a fit parent's decision to deny or limit visitation. These factors are “key to a constitutionally appropriate balance between a natural parent's fundamental rights and a child's best interests – and without findings reflecting that balance, a grandparent-visitation order is not constitutionally permissible.” Id. These omissions alone render the trial court's order unconstitutional. See id. Furthermore, the trial court's conclusion here that visitation is in Child's best interests is mere “cursory language” unsupported by the requisite “particularized findings relative to” Child and her relationship with Grandparents. Welbourne v. Mays, 165 N.E.3d 117, 125 (Ind. Ct. App. 2021).

[9] Grandparents acknowledge the trial court “omitted” some of the required McCune factors in its written order, but contend the court made “oral statements” that sufficiently show its consideration of the required factors. Appellees’ Br. pp. 13, 15. Assuming without deciding whether oral findings are even sufficient, we cannot say the trial court made such findings or conclusions here. After the presentation of evidence, the trial court stated:

There's a lot to consider here. Obviously, there's a tragic situation with this child's mother being gone. I don't get a lot of these grandparent visitation cases, but when I do, it's usually because one parent has -- is deceased. And that's, obviously, a tragedy for everyone in this room, but it's -- what it really is it's a tragedy for [Child]․ This is her mother. She'll never get her back. But that's probably why we have this grandparent visitation set of statutes is because of that. I do understand the law and that it certainly favors the decisions of the parent, and I don't disagree with that. However, I also have to consider what I think is in the child's best interest as well and is that maintaining a relationship with her maternal side and is dad's schedule acceptable or not. If it is, so be it, then that's what the order will be. If it's not, then I'll give in a little more specific order.

***

So I'll give it some consideration. I'll certainly look through the evidence in front of me and review my notes as to your testimony and I'll make a decision. I'll give you a ruling here in the next couple weeks.

Tr. Vol. II pp. 135-37. These statements are not—as Grandparents suggest—oral findings and conclusions but rather indicate the trial court was taking the matter under advisement.

[10] Here, the court did not issue specific findings in accordance with McCune. As such, “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.” M.L.B., 983 N.E.2d at 588 (internal citation omitted; emphasis in the original). Thus, we remand this case to the trial court for the timely entry of new findings and conclusions revealing its consideration of all four relevant factors as required, without hearing new evidence unless necessary. See id. at 589; see also In re Visitation of B.A.A., 173 N.E.3d 689, 693 (Ind. Ct. App. 2021).

[11] In addition, we note Father challenges the amount of visitation awarded, contending it is “excessive” and not the “occasional and temporary” visitation intended under the Act. Appellant's Br. p. 30. As stated above, the Act “only contemplates occasional, temporary visitation” so as not to constitute “a substantial infringement on the parent's fundamental rights[.]” Swartz, 720 N.E.2d at 1222. The amount of visitation under the Act is left to the discretion of the trial court. In re Visitation of L-A.D.W., 38 N.E.3d 993, 997 (Ind. 2015). This is because such determinations are “fact-sensitive” and depend on “the specific circumstances of each case.” Id. at 999. Here, the trial court awarded Grandparents a considerable amount of visitation—over seventy days a year. But given the fact-specific nature of this inquiry, without sufficient findings we cannot determine whether such an amount was an abuse of discretion. Compare id. (trial court did not abuse its discretion in awarding grandparents “more involved” visitation schedule given the unique circumstances of the family, including that grandparents had previously played a parental role in the child's life), with In re Visitation of K.M., 42 N.E.3d 572, 582 (Ind. Ct. App. 2015) (trial court abused its discretion in awarding a grandparent visitation schedule “similar to the parenting time of a non-custodial parent” where the “specific circumstances of th[e] case [did] not warrant” such a schedule). As such, we do not reach this issue.

[12] Remanded with instructions.¹

FOOTNOTES

1.   Father also argues the trial court erred in failing “to apply” the McCune factors. Appellant's Br. p. 12. But because we are remanding for consideration of the McCune factors and the issuing of findings and conclusions, we cannot yet reach this issue. See McCune, 783 N.E.2d at 756 (“[T]he purpose of special findings of fact and conclusions of law is to provide the reviewing court with the legal basis upon which the decision was reached.”) (quoting Sanders v. Sanders, 452 N.E.2d 1057, 1058-59 (Ind. Ct. App. 1983)).

Scheele, Judge.

Bailey, J., and Vaidik, J., concur.