Non-Parent Visitation

In the ever changing landscape of American families, many non-parents develop strong, often parent-like, relationships with children. The grandparents that help their son raise his daughter. The stepparent who coached all of his stepson's little league games. The aunt that took in her niece while mom gets settled in a new town with a new job. The problem arises when the parent decides the non-parent should no longer be in the child's life.

Eight years ago, the U.S. Supreme Court in Troxel v. Granville said that a fit parent has a superior right over all others to make determinations about the raising of his or her child, including who may visit with them. Up to that point various states had instituted, often very broad, grandparent or non-parent visitation statutes. Troxel sent the states scrambling to repeal those statutes or revise them to try to pass Constitutional muster. In 2004, the Kentucky Court of Appeals, handed down the Vibbert v. Vibbert case that went from making grandparent visitation impossible, to just really hard. Nevertheless, Vibbert gives hope to grandparents who have practically raised their grandchildren, to be allowed regular time with the child.

This, however, begs the question of the standing of other non-parents to petition the court for visitation. In Kentucky, even the Vibbert case hinged on KRS 405.021, which only specifically mentions grandparents. In fact, at least one case has stated that great-grandparents, who are not specifically mentioned in the statute do not have standing. The few cases that granted visitation to step-parents predate the Troxel decision and may no longer be upheld. Nevertheless, the Kentucky Supreme Court's recent decision in Pennington v. Marcum as well as other caselaw would put the best interest of the child as paramount, so a strong relationship with the child may possibly be enough to convince a court that there is sufficient standing to proceed.

Whatever the result, it is not a proceeding that should be taken up lightly and will, no doubt, result in intense litigation. The movant should be prepared for a protracted battle and make sure that he/she truly has the child's best interest in mind before proceeding.