Background
Jordan Fleschner and Rachel Scheid dated for about eight years. During the relationship, Fleschner assumed a parental role for Scheid’s daughter, who was two when the relationship began. The adults and child referred to him as the child’s father, and Scheid included him in education and medical decisions. The couple never married, however, and Fleschner was not the child’s biological or adoptive parent.
After the relationship ended following a physical altercation, Scheid initially allowed the child to continue spending time with Fleschner. Fleschner later petitioned the Vigo Superior Court for visitation. The trial court denied the request after hearing evidence about the relationship, the child’s interests, and concerns regarding Fleschner’s conduct. A related ex parte protection order also existed during part of the proceedings. On appeal, Fleschner challenged standing, the constitutional framework governing third-party visitation, the treatment of the parties’ earlier voluntary arrangement, and the protection order’s role.
The Court’s Holding
The Court of Appeals affirmed in an opinion by Judge DeBoer. The panel treated the decisive question as whether Fleschner overcame the constitutional presumption that a fit parent’s decision about visitation serves the child’s best interests. Parents possess a fundamental right to direct the care, custody, and control of their children. Indiana’s third-party-visitation framework therefore starts with special weight for a fit parent’s decision; the person seeking visitation bears the burden of rebutting that presumption and showing that court-ordered contact is in the child’s best interests.
The panel rejected the argument that the trial court effectively required proof that Scheid was an unfit parent. Although proof of unfitness could be powerful evidence against the parental presumption, Indiana law does not make it a formal prerequisite or the only way to rebut the presumption. Read as a whole, the order applied the proper framework and concluded that Fleschner had not carried his burden. The trial court could consider the evidence bearing on the child’s welfare and the parent’s decision without converting the proceeding into an unfitness case.
The parties’ voluntary post-separation visitation did not change the allocation of burdens. This was an initial petition for a judicial visitation order, not a request to modify an existing court order. A parent’s earlier willingness to permit contact does not surrender the constitutional protection afforded to the parent’s later decision. The panel distinguished cases involving existing visitation judgments or materially different procedural postures.
The ex parte protection order also did not require reversal. Indiana law provides that issuance of a protection order does not itself create an inference or presumption in a later proceeding. The visitation order mentioned the protection order only in its procedural history; its findings and analysis rested on evidence introduced at the visitation hearing. Fleschner acknowledged that the underlying conduct could be considered when supported by admissible evidence. The record did not show that the judge treated the ex parte order itself as proof against him.
Key Takeaways
- A nonparent who has functioned as a parent still must overcome the constitutional presumption favoring a fit legal parent’s visitation decision.
- A parent’s earlier voluntary permission for contact does not create an existing judicial visitation right or shift the burden on an initial petition.
- A protection order cannot supply an automatic adverse inference in another case, but properly admitted evidence concerning the underlying conduct may still be relevant.
Why It Matters
The decision clarifies the difficult position of former partners and other psychological parents who have formed substantial bonds with a child but lack biological or adoptive status. Evidence of a close relationship is important, yet it does not erase the constitutional starting point. Indiana lawyers seeking third-party visitation must develop proof directed not only to the quality of the bond but also to why overriding the fit parent’s present decision is justified and serves the child’s best interests.
For responding parents, the opinion confirms that informal accommodation does not necessarily become a permanent legal entitlement. Trial courts must give the parent’s decision special weight while still evaluating evidence rather than applying a categorical rule. Practitioners should also keep protection-order status distinct from evidence of conduct: the former cannot create a presumption, while the latter may be considered if properly placed in the record.