Standard to be applied for grandparent visitation where a non-parent is the child’s custodian – published opinion from Ky Supreme Court

Grandpa and Baby

Morton v. Tipton

Trial Court, using the preponderance of the evidence standard, awarded limited grandparent visitation to Paternal Grandfather. Custodial Maternal Grandfather and Step-Grandfather challenged the Trial Court’s decisions arguing that the proper standard of proof to be used by the Trial Court was the Clear and Convincing Evidence standard. Paternal Grandfather argued that the parent’s liberty interest in the Care, Custody, and Control of their children does not extend to non-parent custodians, and thus, there is no presumption that a non-parent is acting in the best interest of the minor child when denying grandparents visitation.

The Supreme Court held that trial courts must use the preponderance of the evidence standard when considering grandparent visitation if someone other than the Parent, including another grandparent, is the grandchild’s custodian. “The Liberty interest at issue in Walker, the interest of parents in the care, custody, and control of their children – which commands a heightened burden of proof –is simply not present when non-parents are granted custody by the State … the superior rights of a parent are not bestowed on a non-parent custodian, regardless of the custodian’s relationship to the child or the length of their custodial relationship.”

Digested by: Emily T. Cecconi

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