Trial Court ordered that Grandparents were to approve any change in Mother’s visitation with children, though Mother and Father shared joint custody. Trial Court also, sua sponte, increased maternal grandparents’ visitation with minor grandchildren from one to two weekends per month.

Issue One: May the Court, sua sponte¸ award visitation to grandparents?

This case is not yet final.
Vanwinkle v. Petry, __ S.W.3d __ (Ky. App. 2007), 2007 WL 121965 (Ky. App.)

Trial Court ordered that Grandparents were to approve any change in Mother’s visitation with children, though Mother and Father shared joint custody. Trial Court also, sua sponte, increased maternal grandparents’ visitation with minor grandchildren from one to two weekends per month.

Issue One: May the Court, sua sponte¸ award visitation to grandparents?

Analysis: No. Pursuant to KRS 405.021, grandparents have the right to petition a trial court for visitation with their grandchildren; however, if the parents object, the grandparents must prove, by clear and convincing evidence, that such visitation would be in the grandchildren’s best interest, considering such factors as the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child’s relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child’s living and schooling arrangements; the wishes and preferences of the child. The grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child. Thus, the grandparents must file a Petition for visitation in order to receive it, including additional visitation, and the trial court must make a finding that such visitation is in the child’s best interest.

Issue Two: May the court order that a non-custodian must approve changes in a parenting time schedule, especially where the non-custodian is a party to the action due to his visitation rights?

Analysis: No. Such an arrangement violates the parents’ rights under Troxel v. Granville, wherein the United States Supreme Court stated that “it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Even though a parent has a fundamental and constitutionally protected right to make decisions regarding his or her child, that right is not unfettered, as the trial court has the power to set and modify custody and may remove a child from a parent’s custody where supported by the law. This does not allow the Court, however, to grant any decision-making ability to anyone other than custodians of the children.

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The Family Law Prof Blog reports: “Many thought the U.S. Supreme Court had essentially settled this issue in 2000 when it ruled that Tommie Granville, a mother in Washington state, could limit to once a month her two girls’ contact with their paternal grandparents after the girls’ father had committed suicide. But the issue is flaring anew. The highest courts of Pennsylvania, Utah and Colorado recently ordered grandparent visits in disputes strikingly similar to the 2000 case.” They link to a USA Today.com Yahoo news report of October 5, 2006, Court Fights Hurt Children.
We posted about these cases here. Marcia Oddi at IndianaLawBlog posted about them here.

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Two More State Supreme Courts Uphold Grandparent Visitation Laws – Despite the Supreme Court’s Holding that They Can Be Unconstitutional is an online article by Joanna Grossman posted yesterday. In it she digests the recent Utah and Pennsylvania cases upholding grandparent visitation along with links to them, to Troxel and to other post-Troxel cases
“Importantly, though, the Troxel Court did not rule in such a way as to necessitate the invalidation of grandparent visitation laws nationwide.
Granted, some third-party visitation statutes have been struck down under Troxel. Iowa, for example, struck down its law, criticizing the legislature’s substitution of “sentimentality for constitutionality,” to the detriment of parental decisionmaking.
However, within the last two years, California and Ohio have both upheld their state’s laws against similar challenges, and, within the last month, Pennsylvania and Utah have joined them.
The Pennsylvania Supreme Court ruled, in Hiller v. Fausey, that a state law permitting grandparent visitation over the objection of the child’s sole living parent was constitutional — even without any showing that denying grandparent visitation would cause harm to the child….”
The Utah Supreme Court ruled similarly in Uzelacv. Thurgood, another case in which a father denied visitation with maternal grandparents after the mother’s death.”
It’s a useful article to save in your brief bank.
UPDATE: Indiana Law Blog has a number of posts on this issue as well.

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