Grandparent visitation and particular-case jurisdiction – published opinion from Ky Court of Appeals

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Father took custody of his two minor children after the death of mother. Maternal grandparents filed a Petition for grandparent visitation which was granted by the trial court.

The Court of Appeals first addresses a jurisdictional issue. Grandparents filed a Petition for grandparent visitation, withdrew without serving Father, and then subsequently filed a motion under the same case number to re-open without alleging grounds under CR 60.02. The case was reopened and Father replied. The Court of Appeals held that “the trial court did not act outside of its general subject-matter jurisdiction, but only outside of its particular-case jurisdiction. Therefore, Father “effectively consented to the trial court’s exercise of jurisdiction over the particular case, and waived any right to raise the issue on appeal.”

Father primarily argues that grandparents “failed to overcome the presumption that he is acting in the best interests of the children.” The Court of Appeals holds that “where a grandparent seeks the intervention of the courts to compel visitation, the decision of the parent must prevail absent a clear and convincing showing by the grandparent in favor of such visitation.” In this case, the trial court only identified the long-established and close relationship between the grandparents and the children, but failed to make findings as to the grandparent visitation factors set by the Kentucky Supreme Court in Walker v. Blair. It was not clear if the trial court properly gave “presumptive weight” to Father’s “superior rights as a parent”, or to the fact that the grandparents had the burden of proof. Thus, the Court of Appeals vacated the award of grandparent visitation and remanded for “additional findings of fact in accord with the standard set out in Walker v. Blair and Waddle v. Waddle.”

Digested by Elizabeth M. Howell

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