Grandparent Visitation, Walker v. Blair, Ky Supreme Court, Digest of Opinion

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Walker v.Blair


Published:  Reversing and Remanding

County:     Jefferson

 In Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court recognized the constitutionally protected liberty interest of parents to raise their children without government interference.  The Supreme Court of Kentucky accepted discretionary review of this case to consider interpretation of KRS 405.021(1) consistent with the principles articulated in Troxel.

Appellant, Michelle Walker, and Steve Blair had one child, B.B.  Steve committed suicide and thereafter his mother, Appellee, Donna Blair, filed a petition to establish visitation with five-year-old B.B.  The trial court held an evidentiary hearing in which both parties and Blair’s ex-husband, Martin Blair, B.B.’s paternal grandfather, testified.

Blair testified that she and B.B. had a close, loving relationship.  She was taking three antidepressant medications, but testified that her mental condition is stable.  Walker testified that Blair had infrequent contact with B.B. and that the child had not asked to call or see his grandparents.  Walker said she would follow the recommendation of B.B.’s therapist regarding his contact with Blair.

The trial court found it was in B.B.’s best interest to grant visitation to Blair. Working with B.B.’s therapist, the eventual goal was at least one overnight visit per month and reasonable visitation during holidays.  The trial court denied Walker’s motion to alter, amend or vacate, and on Walker’s appeal, the Court of Appeals affirmed the trial court.

The trial court’s findings are reviewed applying the clearly erroneous standard, but the interpretation of KRS 405.021(1) and the application of the appropriate standard are issues of law to be reviewed de novo.

The Kentucky Supreme Court last addressed this issue in 1992 in King v. King, 829 S.W.2d 630 (Ky. 1992).  KRS 405.021(1) provides that the court may grant reasonable visitation to grandparents if it determines that it is in the child’s best interest, based on a preponderance of the evidence standard.

Eight years later, the Supreme Court of the United States decided Troxel v. Granville, involving a Washington statute which permitted any person to petition for visitation rights if it served the child’s best interest.  The trial court granted visitation to a child’s grandparents, but on appeal, the Washington Supreme Court held that the statute unconstitutionally interfered with parents’ fundamental right to raise their children.  The U.S. Supreme Court affirmed the state supreme court’s decision.  A majority of the court agreed that under the Due Process Clause of the Fourteenth Amendment, parents have a fundamental liberty interest in the care, custody and control of their children and concurred that there is a presumption that fit parents act in the best interest of their children.

Scott v. Scott, 80 S.W.3d 447 (Ky. App. 2002), overruled by Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), interpreted KRS 405.021(1) in light of Troxel, holding that grandparent visitation could only be granted over the objection of a fit parent if it is shown by clear and convincing evidence that the child would be harmed by deprivation of visitation with the grandparent.

Just two years later, the Court of Appeals, sitting en banc, decided the Scott panel misread Troxel and overturned Scott in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004).  The Vibbert court required grandparents to prove by clear and convincing evidence that the requested visitation is in the best interest of the child and included a list of factors to consider.

Because the King decision effectively placed grandparents and parents on equal footing in determining grandparent visitation rights and did not recognize a presumption in favor of a fit parent’s decision to deny visitation, Troxel overturned King.  KRS 405.020(1), however, is not unconstitutional, and the modified best interest standard established in Vibbert is approved.

The starting point for a trial court’s analysis under KRS 405.021(1) is that a fit parent acts in the child’s best interest.  The grandparent must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child’s best interest.  Lacking such evidence, parental opposition alone is sufficient to deny grandparent visitation.

The trial court should not attempt to determine whether the parent is fit before presuming the parent is acting in the child’s best interest.  The trial court must presume the parent is fit and turn to the Vibbert factors to decide if the parent is mistaken in the belief that grandparent visitation is not in the child’s best interest.

If a grandparent demonstrates that harm to the child will result from deprivation of visitation with the grandparent, this is strong evidence that the visitation is in the child’s best interest.  The factors in the Vibbert modified best interest analysis must be considered.  A trial court may not override parents’ constitutional liberty interest in rearing their child just because the judge believes a better decision could be made.

The trial court cited Baker v. Perkins, 774 S.W.2d 129 (Ky. App. 1989) for the proposition that parental opposition is not sufficient alone to deny the grandparent visitation, which does not afford a fit parent’s decision the presumption required by Troxel.  To the extent that Baker v. Perkins conflicts with the standard, it is overruled. The trial court’s reliance on King is also erroneous, because after Troxel, King is no longer good law.

The Supreme Court remanded to the trial court for a new evidentiary hearing applying the modified best interest standard consistent with the opinion.

The Court properly denied Appellant’s motion to dismiss because the legislature did not intend to force a grandparent whose child is deceased to choose between seeking noncustodial visitation and pay child support or forfeiting visitation altogether.

The decision of the Court of Appeals is reversed, the trial court’s visitation order is vacated, and this case is remanded to the trial court with directions to conduct a new evidentiary hearing applying legal standards consistent with this opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.


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