parental presumption in Indiana

2005See L.L., 745 N.E.2d at 233 (ending analysis where findings were insufficient to show that grandparent rebutted the parental presumption).

2005See L.L., 745 N.E.2d at 238 (ending analysis where findings were insufficient to show that grandparent rebutted the parental presumption).

2020As a standard for Court of Appeals of Indiana | Memorandum Decision 20A-CR-378 | November 13, 2020 Page 5 of 7 determining applicability of the parental privilege, our Indiana Supreme Court adopted the following language from the Restatement of the Law (Second) Torts § 147(1) (1965): “A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education.” Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008).

2016Father relies on the Indiana Supreme Court’s decision in Willis v. State, 888 N.E.2d 177 (Ind. 2008), which addressed the scope of the parental privilege to discipline as a defense to criminal battery.

2009Then, citing Hendrickson v. Binkley, 161 Ind.App. 388 , 316 N.E.2d 376 (1974), the trial court declared that to overcome the presumption, a third party seeking custody must show by clear and convincing evidence either (i) unfitness on the part of the parent, (i) long acquiescence in the third party's custody of the child, or (fii) voluntary relinquishment of the child such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child.

2009Then, citing Hendrickson v. Binkley, 161 Ind.App. 388 , 316 N.E.2d 376 (1974), the trial court declared that to overcome the presumption, a third party seeking custody must show by clear and convincing evidence either (i) unfitness on the part of the parent, (i) long acquiescence in the third party's custody of the child, or (fii) voluntary relinquishment of the child such that the affections of the child and third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child.

2016McCune, 783 N.E.2d at 757 ; see also K.I. ex rel J.I. v. J.H., 903 N.E.2d 453 (Ind.2009) (approving the four McCune factors and requiring grandparent visitation order to address-the factors in its findings and conclusions). [23] In Schaffer , this court- extended “the parental presumption and special weight accorded to parents in an initial grandparent visitation proceeding” to parents in “an initial third[-]party stepparent visitation proceeding.” Schaffer, 884 N.E.2d at 427 . 3 We, too, extend the parental presumption and special weight afforded parents to the case before us.

2015In Schaffer v. Schaffer, 884 N.E.2d 423, 427 (Ind.Ct.App.2008), another panel of this Court opined in dicta that "the same parental presumption and special weight accorded to parents in an initial grandparent visitation proceeding should be extended to parents in an initial third party step parent visitation proceeding.” However, the Schaffer court was not asked to review an initial stepparent visitation order and, until our supreme court declares otherwise, we decline to extend' the parental presumptions applicable to a statutory grandparent visitation proceeding to a stepparent visitation or

2009But in BH., this Court clarified that in determining whether the parental presumption has been overcome, "the trial court is not limited to the three Hendrickson factors." B.H., 770 N.E.2d at 288 .

2005First, in keeping with B.H., we conclude that when a parent seeks to modify the long-term permanent custody of a third party, the third party must rebut the parental presumption with "evidence establishing the natural parent's unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third party[.]" B.H., 770 N.E.2d at 287 .

2005The trial court's initial focus on the parental presumption and its impact on Z.T.H.'s best interests was proper; however, the trial court must also ensure "that the policy of stability remains a guiding factor in determining whether a custody order should be modified." Bryant v. Bryant, 693 N.E.2d 976, 979 (Ind.Ct.App.1998), trans. denied.

2005The trial court's initial focus on the parental presumption and its impact on Z.T.H.'s best interests was proper; however, the trial court must also ensure "that the policy of stability remains a guiding factor in determining whether a custody order should be modified." Bryant v. Bryant, 693 N.E.2d 976, 979 (Ind.Ct.App.1998), trans. denied.

2005The standard of review, on the other hand, is more accurately described as the amount of deference an appellate court gives to the trial court's decision. [4] Although Horan may have knowingly relinquished custody of Z.T.H., we do not agree that he also knowingly or impliedly waived the parental presumption. [5] Horan was twenty-five years old when Z.T.H. was born. [6] "Prior to July 1, 1994, a trial court could modify a custody arrangement `only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable."' Wallin v. Wallin, 668 N.E

2005Today, we are also asked to reconcile the presumption that custody with the parent is in the child's best interest with the longstanding concept that "permanence and stability are considered best for the welfare and happiness of the child." Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind.1992). 6 In a proceeding to modify custody, the burden is on the petitioner.

2020See Barocas v. State, 949 N.E.2d 1256, 1259 (Ind. Ct. App. 2011) (setting forth requirements for claim of parental privilege). [10] The defense of parental privilege, like self-defense, is a complete defense.

2012We acknowledged that the defense could be applied in limited circumstances to non- parents, including school authorities, see Barocas v. State, 949 N.E.2d 1256 (Ind. Ct. App. 8 2011) and to those “who are persons in loco parentis.” McReynolds v. State, 901 N.E.2d at 1153 .

1987In Buffalo v. Buffalo (1982), Ind.App., 441 N.E.2d 711 , the court held that the parental immunity doctrine does not preclude a suit for negligent injury by an unemancipated minor child against a non-custodial parent where the marriage of the child's parents was dissolved prior to the child's injury.

1987In Buffalo v. Buffalo (1982), Ind. App., 441 N.E.2d 711 , the court held that the parental immunity doctrine does not preclude a suit for negligent injury by an unemancipated minor child against a non-custodial parent where the marriage of the child's parents was dissolved prior to the child's injury.

2026Absent a finding of parental unfitness, "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made." Troxel, 530 U.S. at 72–73; see also Crafton v. Gibson, 752 N.E.2d 78, 98 (Ind. Ct. App. 2001) (reversing grandparent visitation order where trial court failed to apply the Fourteenth Amendment's parental presumption).

2026Brown v. Lunsford, 63 N.E.3d 1057, 1065 (Ind. Ct. App. 2016).

2024Nevertheless, Ndiaye argues he should have been able to assert a parental privilege to intimidate his child. [15] The defense of parental privilege is born out of Indiana Code section 35-41-3-1, which states, “[a] person is justified in engaging in conduct otherwise prohibited Court of Appeals of Indiana |Opinion 23A-CR-1060 | May 1, 2024 Page 8 of 12 if he has legal authority to do so.” Smith v. State, 34 N.E.3d 252, 255 (Ind. Ct. App. 2015).

2016McCune, 783 N.E.2d at 757 ; see also K.I. ex rel J.I. v. J.H., 903 N.E.2d 453 (Ind.2009) (approving the four McCune factors and requiring grandparent visitation order to address-the factors in its findings and conclusions). [23] In Schaffer , this court- extended “the parental presumption and special weight accorded to parents in an initial grandparent visitation proceeding” to parents in “an initial third[-]party stepparent visitation proceeding.” Schaffer, 884 N.E.2d at 427 . 3 We, too, extend the parental presumption and special weight afforded parents to the case before us.

2015See In re Visitation of C.S.N., 14 N.E.3d at 759 .

2005Because the Ketners have rebutted the parental presumption, this case is like any other modification proceeding, in which "[t]he welfare of the child, not the wishes and desires of the parents, is the primary concern of the courts." In re Paternity of M.J.M., 766 N.E.2d 1203, 1209 (Ind.Ct.App.2002).

2005Because the Ketners have rebutted the parental presumption, this case is like any other modification proceeding, in which "[t]he welfare of the child, not the wishes and desires of the parents, is the primary concern of the courts." In re Paternity of M.J.M., 766 N.E.2d 1203, 1209 (Ind.Ct.App.2002).