The attorneys at Goldberg Simpson offer strategic and experienced advocacy in this area, having represented both sides of the family seeking or defending against custody or visitation rights. These cases routinely involve custodial evaluators, guardian ad litem (GAL), and other experts that can help a family court judge what is in a child’s best interests.

What Are Grandparents Rights?

Grandparents rights involve grandparents asserting legal claims to custody or visitation to a grandchild. Grandparents may become involved if they are prevented from seeing their grandchildren or if they feel that a child’s well-being is threatened by neglect, abuse, or drug or alcohol addiction. Many grandparents will pursue a case where a family dispute causes a parent to prevent the grandparent from seeing a grandchild.

The basis for grandparent visitation rights in Kentucky is KRS 405.021. That law provides for reasonable visitation rights to either the maternal or paternal grandmother(s) and/or grandfather(s) of a child if the court determines that it is in the best interest of the child to do so. This case must be filed in the local family court where the child resides (or circuit court if the child’s home county does not have a family court).

Once a grandparent has been granted visitation rights under Kentucky law, those rights are not affected by the termination of parental rights belonging to the grandparent’s son or daughter (who is the father or mother of the child visited by the grandparent) unless the family court judge determines that it is in the best interest of the child to do so.

It is also possible for a grandparent to receive noncustodial parental visitation rights if the parent of the child who is the son or daughter of the grandparent is deceased and the grandparent has assumed the financial obligation of child support owed by the deceased parent, unless the family court determines that the visitation is not in the best interest of the child. If visitation is not granted, then the grandparent has no obligation to pay child support for the grandchild.

Can I Get Visitation To See My Grandchild?

In Kentucky, visitation may be granted to grandparents if the court determines that it is in the child’s best interests. We will work with necessary professionals, interview witnesses and present all evidence needed to support your case to see your grandchildren. We will demonstrate to the court that it is in the best interests of the child to have contact and visitation with grandparents.

Can I Get Custody Of My Grandchild? What Is De Facto Custody?

A grandparent who has been a primary caretaker of a child for a certain period of time (usually dependent on the age of the child and whether the grandparent or family member has been the primary caregiver and financial supporter) may be able to obtain the same rights as a regular parent. In other child custody and grandparents’ rights cases, the court will consider the wishes of parents and children, the relationship between the child and parents, the child’s adjustment to their home, school and community and the mental and physical condition of all persons involved. If you are seeking visitation or custody rights or you want to defend against the right of an intervening grandparent, please contact our office for an immediate consultation.

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Madison Circuit Court

On July 22, 2020, Grandparents of the Child in this matter initiated filed a “Verified Petition for Termination of Parental Rights and Adoption.” After conducting an evidentiary hearing, the family court entered a finding of facts and conclusion of law alongside a “Judgement of Termination of Parental Rights.” The Biological Mother appealed the ruling.

Before addressing the Mother’s arguments, however, the Court felt it necessary to address a “subject of ongoing confusion in this critical area of legal practice.” The Court explained that filing a dual petition for adoption and termination, together, was procedurally improper. While the family court allowed this mistake to move forward, the Court emphasized that it is an “either/or” choice in petitioning for an adoption versus parental termination. Nevertheless, because KRS 199 encompasses KRS 625, the Court determined that the adoption analysis supersedes the termination analysis; thus, the Court would need to ensure that the erroneously allowed “Judgement of Termination of Parental Rights” met all the requirements of an adoption proceeding. Ultimately, the Court found the judgement erroneously named the birth parents, contrary to the instructions in KRS 199, but otherwise met all the other statutory requirements of an adoption.

When looking at the Mother’s substantive arguments, the Court found that the Mother failed to preserve her arguments properly under CR 76.12. Despite the noncompliance, the Court allowed review due to the sensitive nature of the case. The Mother’s arguments, however, were still barred. Generally, the Mother contested that the judgment failed to meet the requirements of KRS 199. The Court, however, after conducting a factor-by-factor analysis, found the family court’s findings adequately supported an adoption without consent. The Mother’s additional arguments, stating the family court’s findings were not supported by clear and convincing evidence and that the adoption was not in the child’s best interests, were nothing more than an attempt to re-argue her initial case. The Court, being satisfied in its review of the record, found the entry of a judgment of adoption substantively satisfied. Accordingly, the Court vacated the judgment, remanding the matter to the family court with two instructions: (1) that it correct its error with respect to erroneously naming the birth parents in its judgment and (2) that it enter a judgment of adoption, and not termination, in accordance with the requirements of KRS 199.520.

K. Spencer Pierson

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Hardin Circuit Court

Grandmother moved to intervene in custody action between Mother and Father, requesting to be considered Child’s de facto custodian and be awarded custody of child. At the hearing on the matter, Grandmother introduced evidence that she provided the majority of care and support of Child with her in Kentucky. However, the evidence showed that Mother sought medical or dental care for Child when needed when Child stayed with her in West Virginia, although she admitted to not having been involved in Child’s medical or dental care in Kentucky. Furthermore, Mother testified that she provided support to Grandmother for the child, although she did not do so through the child support office. Family Court found Grandmother to be a de facto custodian and granted Grandmother and Mother joint custody of Child. Mother appealed.

The Court of appeals held that Grandmother was not Child’s de facto custodian. Parenting a child alongside a parent does not meet the definition of de facto custodian. Mother continued to exercise her parenting time, make decisions for Child during her parenting time, and provided for Child. Grandmother parented alongside Mother, and although Grandmother did generously provide care and financial support to Child, Mother did not allow Grandmother to stand in her place as Child’s mother nor did she abdicate her role as primary caregiver and financial supporter.

Digested by Nathan R. Hardymon

The post Grandmother Was Not a De Facto Custodian Where Mother Parented and Provided for Child in Conjunction with Grandmother – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

KRS 405.021(3) allows a grandparent to seek visitation under only very narrow circumstances. 1) the parent of the child who is the son or daughter of the grandparent must be deceased, and 2) the grandparent must have assumed the financial obligation of child support owed by the deceased parent. If these two factors are met and the Court makes a Walker analysis properly awarding grandparents visitation, grandparents would have an ongoing obligation for support. On the other hand, KRS 405.021(1)(a) allows a grandparent to seek visitation regardless of if their child, the parent, is living or dead, and there is no obligation for support. A note of caution, it can be difficult to establish grandparent visitation under KRS 405.021(1)(a) given the presumption that a a fit parent acts in his or her child’s best interest when denying a grandparent visitation.

A grandparent acting as a grandparent can only be required to pay child support if they themselves take on the obligation and pursue visitation under KRS 405.021(3). Otherwise, grandparents cannot be required to pay child support. Or course, if a grandparent’s status changes, such as obtaining standing as a de facto custodian or becoming an adoptive parent, their rights and obligations also change.

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Shelby Circuit Court

Questions Presented: Grandparent visitation. Adoption. Under circumstances involving a maternal grandmother’s adoption of a child which was being contested by the father at the time of his death, with no notice to the paternal grandfather of either the adoption proceeding or the possibility that ongoing visitation would not continue, the Court extends the stepparent adoption exception carved out in Hicks v. Enlow, 764 S.W.2d 68 (Ky. 1989).

Maternal Grandmother petitioned to adopt Child. Mother consented to the adoption, but Father contested it. Before the adoption was finalized, Father died. Family Court granted Maternal Grandmother’s petition. Prior to, during, and after the adoption, Paternal Grandfather enjoyed visitation with Child, including overnight visitation. At some point, Maternal Grandmother unilaterally stopped the visitation between Child and Paternal Grandfather. Paternal Grandfather petitioned for grandparent visitation pursuant to KRS 405.021. Family Court, after receiving briefing, dismissed the petition for lack of standing, finding that Paternal Grandfather’s grandparent rights terminated upon finalization of the adoption, because Hicks v. Enlow, 764 S.W.2d 68 (Ky. 1989), held that grandparent rights do not extend to adoption which are not stepparent adoptions. Paternal Grandfather appealed, and the Kentucky Court of Appeals affirmed Family Court. Paternal Grandfather sought discretionary review, which was granted.

The Supreme Court of Kentucky reversed Family Court and extended the stepparent exception recognized in Hicks in these particular circumstances where a grandparent’s adoption of a child which was being contested by a parent at the time of his/her death, with no notice to the other grandparent of either the adoption proceeding or the possibility that ongoing visitation would not continue. Hicks held that the termination of parental rights also terminate any grandparents’ visitation rights, except for in stepparent adoptions. KRS 405.021 was later amended to continue grandparent visitation that was established prior to the termination of parental rights. The plain meaning of the adoption statute, the grandparent visitation statute, and the holding in Hicks lead to an absurd and unreasonable result in this matter, divesting another grandparent of visitation with a child without consideration the child’s best interests. Furthermore, the grandparent does not receive notice of the adoption and cannot know that his/her visitation rights may be at risk. It would be illogical and unjust to sever the relationship in this matter without determining whether such severance would be in Child’s best interests.

Digested by Nathan R. Hardymon

The post Extending Hicks v. Enlow’s Stepparent Adoption Exception to Circumstances Where Child Is Adopted by Another Grandparent – Published Opinion from Supreme Court of Ky. appeared first on Goldberg Simpson - Family Law Group.

Jefferson Family Court

After cannabinoids and opiates were detected in Child’s system after birth, the Cabinet for Health and Family Services (“the Cabinet”) filed a dependency, neglect, and abuse petition, resulting in Family Court ordering a treatment plan for her parents. Mother soon after died, and Father admitted to using heroin. Child was placed with her paternal great-grandmother. After several other placements, Father expressed his desire for Child to be placed with Grandparents in Florida. Grandparents contacted the Cabinet to request consideration for placement. The Florida Child Protective Services performed a home study, and the Cabinet ultimately did not recommend placement with Grandparents.

Thereafter, Grandparents sought permanent custody of Child. In a dispositional hearing, Family Court denied Grandparents’ request, which Grandparents’ appealed and the Court of Appeals affirmed. During the pendency of the appeal, the Cabinet petitioned to terminate Father’s parental rights. Grandparents moved to intervene in the termination action and to hold it in abeyance pending the resolution of the appeal regarding their motion for permanent custody. Family Court denied these motions, and Grandparents appealed.

The Court of Appeals held that Grandparents were unable to intervene as of right. Commonwealth, Cabinet for Health and Family Services v. L.J.P., 316 S.W.3d 871 (Ky. 2010) held that grandparents do not have the right to intervene in a termination case under either prong of CR 24.01. Under the first prong, no statute confers an unconditional right on grandparents to intervene, and KRS 625.050 specifically enumerates the parties to such an action, which do not include grandparents. Under the second prong, the applicant’s interest must be “a present substantial interest in the subject matter of the lawsuit . . . .” Grandparents do not have a present interest to protect or enforce in a termination proceeding, which is between parent and child.

The Court of Appeals held that Grandparents were unable to permissively intervene. Permissive intervention requires a shared question of law or fact in common with the termination action. Grandparents were seeking custody of or grandparent visitation with Child, which do not involve the termination action.

The Court of Appeals did not overturn the order of Family Court denying a motion to hold the termination action in abeyance, finding Family Court’s reasoning to be sound where Grandparents did not address it in their appeal brief. The motion was denied because Grandparents lacked standing and the termination action did not seek to terminate Grandparents’ relationship with Child.

Digested by Nathan R. Hardymon

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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 a majority concurred that “there is a presumption that fit parents act in the best interests of their children.” The plurality opinion did not define the precise scope of the parental due process right in the grandparent visitation context.

Walker v. Blair, 382 S.W.3d 862, 868-69 (Ky. 2012)(setting forth the holding in Troxel v. Granville,530 U.S. 57 (2000).

It has been nearly a decade since the Supreme Court’s decision in Troxel  and Kentucky courts have published several cases clarifying Troxel for application under Kentucky law. Kentucky statute provides for grandparent visitation on the following grounds:

            The Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so.

KRS 405.021(1)(a). Previously, KRS 405.021(1)(b) and (c) shifted the burden in Troxel when a grandparent was seeking visitation after the death of his or her child; however, the Supreme Court recently found that the presumption shift was unconstitutional.

In Kentucky, the Supreme Court has laid out a number of factors courts must consider when making a determination regarding grandparent rights pursuant to KRS 405.021(1)(a) which has not been declared unconstitutional. The Court will look to “the motivation of the adults participating in the grandparent visitation proceedings” as well as a number of factors outlined in Walker:

1) the nature and stability of the relationship between the child and the grandparent seeking visitation;

3) the potential detriments and benefits to the child from granting visitation;

4) the effect granting visitation would have on the child’s relationship with the parents;

5) the physical and emotional health of all the adults involved, parents and grandparents alike;

6) the stability of the child’s living and schooling arrangements; and

7) the wishes and preferences of the child.

Walker v. Blair, 382 S.W.3d 862, 871 (Ky. 2012). The Court will conduct a fact specific inquiry into the facts. The Court is not required to consider all of the factors but should consider those pertinent to the facts of the individual case before it. Massie v. Navy, 487 S.W.3d 443, 447 (Ky. 2016)

If you are thinking about initiating Court action to establish visitation as a grandparent, you may want to talk to an attorney. The attorney can help you determine the strength of your case, and help you explore whether options outside of litigation might be more likely to result in preservation of your important grandparent grandchild relationship.  

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Pulaski County

Questions Presented: KRS 405.021(1)(b) and (c) of Kentucky’s grandparent visitation statute is violative of due process on its face because it permits a grandparent to prove a significant and viable relationship by a preponderance of the evidence rather than the clear and convincing standard required under Walker v. Blair. The statute also fails to accord the parent’s determination regarding his or her child the “special weight” required by Troxel v. Granville, 530 U.S. 57 (2000). The Supreme Court leaves intact KRS 405.021(1)(a) and KRS 405.021(3) as potential avenues for a trial court to grant grandparent visitation so long as the court complies with Walker.

Mother and Father of Children were divorced, executing a property settlement agreement, which provided Mother with sole custody of Children. However, in the event of either parent’s death, it provided for sole custody to the other parent. thereafter, Mother moved to North Carolina and married Husband. Several years later, Father filed a motion to modify custody, seeking sole custody, which Mother opposed. Mother died during the pendency of the action.

Maternal Grandparents and Husband moved to intervene into the action, and Husband moved for sole custody. Trial Court granted sole custody to Father, denying Husband’s motion. Grandparents then filed a motion to amend the order to include grandparent visitation pursuant to KRS 405.021(1). After a hearing, Trial Court dismissed Grandparents’ motion for grandparent visitation, determining that KRS 405.021(1)(b) and (c) were unconstitutional pursuant to Troxel v. Granville, 530 U.S. 57 (2000) and Walker v. Blair, 382 S.W.3d 862 (Ky. 2012). Trial Court did not make any findings or conclusions under KRS 405.021(1)(a). Grandparents appealed to the Kentucky Court of Appeals.

The Court of Appeals held that KRS 405.021(1)(b) and (c) were constitutional, distinguishing them from the statutes at issue in Troxel and Walker. It concluded that the statutes were narrowly tailored to a very specific set of circumstances and served to protect the relationships a child had with his or her grandparents before the death of the child’s parent. Father petitioned for discretionary review, which was granted.

Father argued that the Court of Appeals erred in holding KRS 405.021(1)(b) and (c) constitutional. The Supreme Court of Kentucky held that the statute is unconstitutional on its face. The statute allowed a grandparent to prove a “significant and viable relationship” in one of four ways, but only using the preponderance of the evidence standard, which is lower than the clear and convincing standard required by Walker for a grandparent to rebut the presumption that a parent is acting in the child’s best interest by limiting or denying visitation. Proving such a relationship by a preponderance of the evidence to give grandparents a rebuttable presumption in their favor does not allow the “special weight” required by Troxel. Not even all the factors required by Walker are located in the statute to prove a significant and viable relationship. Even if they were, it is not sufficient to flip the presumption in favor of grandparent visitation, a presumption a parent would then be required to rebut. Such flipping occurs in KRS 405.021(1)(b), granting a rebuttable presumption that grandparent visitation is in the child’s best interest if there is a significant and viable relationship. It does not comply with the presumption in favor of the parent required in Walker and is violative of the Due Process Clause on its face.

Digested by Nathan R. Hardymon

The post KRS 405.021(1)(b) and (c), Sections of Grandparent Visitation Statute, Unconstitutional – Published Opinion from Supreme Court of Ky. appeared first on Goldberg Simpson - Family Law Group.

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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Child was born to Mother and Father. Maternal Grandmother petitioned Family Court for adoption of Child, to which Mother consented. Father contested the adoption, but he died before completion of Child’s adoption proceedings. On October 23, 2017, Family Court entered a judgment of adoption. Paternal Grandfather petitioned Family Court for grandparent visitation on September 25, 2018. Family Court determined that Paternal Grandfather did not have standing to pursue grandparent visitation, because he did not petition the Court for grandparent visitation prior to the termination of Father’s parental rights, as required by KRS 405.021(a), and Hicks v. Enlow, 764 S.W.2d 68 (Ky. 1989), cuts off grandparent visitation rights after an adoption or termination of parental rights, unless the child is adopted by a stepparent. Paternal Grandfather appealed.

The Court of Appeals affirmed Family Court, holding that the only exception to grandparent visitation rights being cut off by adoption or termination of parents rights are those established in Hicks for stepparent adoption or where the grandparent has preserved their right utilizing a court under KRS 405.021. Because Paternal Grandfather never preserved his right to have visitation with Child under KRS 405.021 and Child was not adopted by a stepparent, he did not meet either exception.

Digested by Nathan R. Hardymon

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