Published: Reversing and Remanding
Published: Reversing and Remanding
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
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
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
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
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
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.
Sandra G. Ragland, Diana L. Skaggs + Associates.