Grandparent visitation evidentiary standard where custodian is not a parent; published opinion from Ky Court of Appeals

MORTON, ET AL. V. TIPTON

Maternal grandparents had custody of children. After lengthy litigation, paternal grandfather was ultimately awarded limited supervised visitation with children. Maternal grandparents appealed arguing “that the trial court erred when it applied the preponderance standard in considering whether to award grandparent visitation to [paternal grandfather].”

The Court of Appeals affirms the trial court holding that “while the clear and convincing standard is required in grandparent visitation involving a parent,… the preponderance standard is applicable when a grandparent seeks visitation against a nonparent after the removal of the child from the parent’s custody in a dependency proceeding.” The Court of Appeals does not apply the Supreme Court’s Walker standard because the “custodial nonparent rights arise from a judicial order and not from a fundamental constitutional right to the custody, control and care of the child.” Therefore, “there is no presumption that a nonparent will act in the child’s best interest” and “the appropriate standard is that the grandparent must prove that visitation is in the child’s best interest by a preponderance of the evidence.”

Digested by Elizabeth M. Howell