ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
James L. McCaslin Beverly S. Peters
Nancy A. McCaslin Elkhart, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA FOSTER CARE AND
ADOPTION ASSOCIATION, INC.
Peter A. Kenny
SUPREME COURT OF INDIANA
MICHAEL WORRELL and ) JACINTHA WORRELL, ) ) Appellants ) (Petitioners Below ), ) 20S04-9810-JV-598 ) in the Supreme Court v. ) ) 20A04-9710-JV-458 ELKHART COUNTY OFFICE OF ) in the Court of Appeals FAMILY AND CHILDREN, ) ) Appellee ) (Respondent Below ). )
The sole issue in this case is whether Michael and Jacintha
Worrell have standing to petition a trial court for visitation with
their former foster children. We hold they do not.
The Worrells subsequently filed petitions for visitation with
each of the three boys. After a hearing, the trial court held that
the Worrells lacked standing to request visitation and dismissed
The Worrells appealed, and the Court of Appeals reversed. It held that the Worrells did have standing because they "met their
initial burden of establishing the threshold requisite of a
custodial and parental relationship with their former foster
children . . . ." Worrell v. Elkhart County Office of Family and
Children, 692 N.E.2d 929, 931 (Ind. Ct. App. 1998). It remanded
this case to the trial court for a hearing on the merits. We grant
transfer and affirm the trial court's dismissal of the petition.
The Court of Appeals has set out a two-part test for
determining whether to grant visitation to a non-parent third
"To establish grounds for visitation, a third party must
demonstrate the existence of a custodial and parental relationship
and that visitation would be in the children's best interest."
Francis v. Francis, 654 N.E.2d 4, 7 (Ind. Ct. App. 1995). Under
this regime, the first issue is standing and the second "is the
standard by which the question of visitation is adjudged after the
cognizable right is established . . . ." Tinsley v. Plummer, 519
N.E.2d 752, 754 (Ind. Ct. App. 1988). Before a court may proceed
to the substance of a visitation request, the party seeking
visitation must satisfy "the threshold requisite of [a] custodial
and parental relationship." Id.
The Worrells argue that their foster relationship with the children constituted a custodial and parental relationship
sufficient to confer standing to request visitation. While we
agree that a foster parent acts by definition in a custodial
capacity, we do not agree that the foster relationship justifies
standing to petition for visitation.
When the Court of Appeals established the two-prong test for
third party visitation in Collins v. Gilbreath, it expressly
limited the breadth of its application. 403 N.E.2d 921, 923-24
(Ind. Ct. App. 1980) ("In so holding we do not intend . . . to open
the door and permit the granting of visitation rights to a myriad
of unrelated third persons . . . who happen to feel affection for
a child. Our decision is explicitly limited to the type of factual
situation presented by this case . . . ."). That case involved a
visitation request from a step-father who was married to the
custodial natural mother of the children and who lived with the
children prior to the death of the mother. Id. at 922. Accord,
In re Custody of Banning, 541 N.E.2d 283 (Ind. Ct. App. 1989) (upon
death of child's natural father, court upheld custody of natural
mother and visitation of step-mother who knew the child through
visitation with child's natural father when he was alive).
Subsequent cases extended visitation to former step-parents following divorce. See, e.g., Capan v. Healey, 634 N.E.2d 540 (Ind. Ct. App. 1994) (upon divorce of child's natural father and step-mother, court upheld custody of natural father and visitation of step-mother who raised child from infancy); cf. Francis, 654
N.E.2d 4 (upon divorce of children's natural mother and her ex-
husband, court upheld custody of natural father and visitation of
natural mother's ex-husband who raised children born during their
marriage, and who did not discover that he was not the natural
father until he and mother divorced).
In other cases, courts have declined to extend visitation
rights to third parties who are not step-parents. See Wolgamott v.
Lanham, 654 N.E.2d 890 (Ind. Ct. App. 1995) (court denied
visitation to ex-boyfriend of mother because he was an "unrelated
stranger"); Tinsley, 519 N.E.2d at 752-55 (upon death of mother,
court denied visitation to child's great-aunt and -uncle because
the relatives saw the child only five times a year at family
We agree with the prior holdings limiting standing to step-
parents, and we now hold that the test does not extend to foster
parents. As the Court of Appeals noted in the context of
grandparent visitation, an expansion of the class of petitioners
with standing to request visitation to include foster parents
"should occur in a legislative, not judicial, forum." Collins, 403
N.E.2d at 924 n.1.
Unlike parent and step-parent relationships, foster relationships are designed to be temporary, providing a "safe, nurturing environment" until the child can either be returned to
the natural parents or adopted by new ones. Indiana Foster Family
Handbook 46 (1995). Furthermore, the foster relationship is
contractual; the parents are reimbursed by the State for their care
of the children. See id. at 101-05. Finally, as Judge Garrard
noted in his dissent, the foster relationship may be one in a
series of temporary arrangements. Worrell, 692 N.E.2d at 932
(Garrard, J., dissenting). In the midst of changing family
relationships, constancy of contact and support is vital, but if
each of the potential profusion of foster parents had standing
because he or she had custody of the child at some point, the
natural or adoptive parents might be forced to defend visitation
claims against a legion of petitioners. Id. We hold, therefore,
that foster parents do not have standing to petition for visitation
with their former foster children.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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