Walker v. Blair, Ky COA, Grandparent Visitation

Walker v. Blair

2010-CA-002228-ME

Published:  Affirming

County: Jefferson

Mom appealed TC’s Order granting visitation to Paternal Grandmother (“Grandmother”) after Dad’s suicide.

FACTUAL AND PROCEDURAL BACKGROUND:

Mom and Dad had one Child in common; after Dad committed suicide, Grandmother filed a petition to establish grandparent visitation pursuant to KRS 405.021(1).  Mom filed motion to dismiss petition, claiming it was not in Child’s best interests to have visitation with Grandmother and that KRS 405.021(3) was applicable and Grandmother failed to state a claim under that subsection.  TC denied motion to dismiss.  After hearing, FC ordered that it was in Child’s best interests to have visitation with Grandmother and that, after re-initiation of contact in therapy, Grandmother should ultimately have a full day visit every other week or one overnight every month, plus reasonable visitation during the holidays.  Mom filed post-judgment motions challenging FC’s order, which were denied. Mom appealed.

ANALYSIS:

Mom argued FC erred in failing to dismiss Mom’s petition, claiming that because Grandmother was seeking substantial and liberal visitation rights, she was seeking “noncustodial parental visitation rights” under KRS 405.021(3), which would require Grandmother to pay child support.  As Grandmother had not paid for financial support of Child, Mom claimed she lacked standing to file the petition.  CA disagreed, noting that Grandmother’s petition sought only grandparent visitation, which is provided by KRS 405.021(1). 

“It is not the death of a parent that functions to trigger the imposition of visitation and child support pursuant to KRS 405.021(3) but the breadth of visitation sought by the grandparent. A grandparent is still a grandparent whether or not her child, as the parent of the grandchild, is deceased.  A party must actually be pursuing and receive that visitation normally awarded to a noncustodial parent before it is ordered to pay child support.”  CA noted that FC’s awarded visitation to Grandmother was much less than would be typically given to a non-custodial parent. 

Mom next argued that Grandmother failed to establish by clear and convincing evidence that it was in Child’s best interests to have visitation with her.  CA disagreed, finding that Grandmother’s evidence was sufficient for FC to conclude that Child had and would continue to benefit from relationship with her; though Mom expressed concern over Child’s potential contact with Grandmother’s ex-husband, CA noted that FC’s order did not provide for visitation with him and in fact provided that Child was not to have contact with him.

FC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates