Court Erred in Enlarging Grandparent Visitation – Published Opinion from Kentucky Court of Appeals

Grandpa and Baby

Hartlage v. Hartlage


Paternal Grandparents filed a petition for grandparent visitation of fourteen-month-old Child after the death of minor Child’s biological Father. Biological Mother objected to Paternal Grandparents exercising visitation asserting that Paternal Grandparents were not involved in minor Child’s life prior to Father’s death, had limited contact with the child since Father’s death, and never provided care for Child.


The parties reached a Temporary Agreed Order that gave Paternal Grandparents visitation with Child every other Sunday afternoon for two hours. The visits were to be supervised by Mother and were to take place at Mother’s home. The Agreed Order required all parties to enroll in individual counseling to address issues revolving around Father’s death and also provided that if the visits went smoothly, Paternal Grandparents could move for expanded grandparent visitation. 


Paternal Grandparents filed a motion for expanded grandparent visitation, a hearing was held before the Domestic Relations Commissioner (DRC) who recommended that their motion be denied and that the parties continue under the terms of the Agreed Order. Paternal Grandparents filed exceptions to the DRC’s recommendations and the circuit court granted Paternal Grandparent’s motion to expand Grandparent visitation. Mother appealed.


On appeal, Mother argued that the Circuit Court erred by not adopting the DRC’s recommendations and erred in its application of KRS 405.021, the grandparent visitation statute.


Finding that it is well established that the circuit court has “‘the broadest possible discretion with respect to the use it makes of reports or recommendations of a DRC,” the Court of Appeals held that the circuit court did not abuse its discretion by not adopting the DRC’s report. However, the Court of Appeals ultimately reversed the circuit court’s order granting Paternal Grandparents expanded visitation above what was agreed to by Mother.


The Court of Appeals held that a trial court’s analysis of KRS 405.021(1) begins with the constitutional presumption that a fit parent acts in the child’s best interest as established in Walker v. Blair, 382 S.W.3d 862, 870-71 (Ky. 2012) and Morton v. Tipton, 569 S.W.3d 388 (Ky. 2019). The Court of Appeals found that the circuit court erroneously expanded the Paternal Grandparent’s visitation notwithstanding its findings that Paternal Grandparents did not establish what type of relationship they had with Child before Father passed away and that since Father’s death, they had little or no contact with Child. The Court of Appeals found that Paternal Grandparents failed to establish a preexisting and viable relationship with Child sufficient to trigger the presumption that grandparent visitation is in a child’s best interest under KRS 405.021(1)(b). The Court of Appeals found it even more concerning that Paternal Grandparents presented absolutely no evidence to the circuit court to overcome Mother’s parental decision to not expand the supervised visitation that she had previously agreed to.


Any motions to expand grandparent visitation shall be governed by the factors set forth by the Supreme Court in Walker, 382 S.W.3d at 871,  and as restated in Morton v. Tipton, 569 S.W.3d at 395, to determine whether such visitation would be in the child’s best interests to overcome the constitutional presumption that the parent’s decision in in the child’s best interests. The case was reversed and remanded, with instructions for the circuit court to enter a grandparent visitation order consistent with the terms of the Agreed Order previously entered by the Court.


Digested by Emily T. Cecconi




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