New Grandparent Visitation Case: Fit Parents' Wishes Must be Given Deference

Last week the Kentucky Court of Appeals issued a flurry of reported cases.  Among them was a case that further clarified the manner in which grandparent visitation cases must be presented to the family court.  In Waddle v. Waddle the mother was granted sole custody of the parties' minor son in part because the father was incarcerated.  The paternal grandparents filed both a separate action for grandparent visitation and also to intervene in the divorce.  Over the course of much legal wrangling, and over the strenuous objection of the mother, the grandparents were granted standard visitation (essentially alternating weekends) with the minor child.

The Court of Appeals reversed the trial court's decision.  In its ruling, the court of appeals does a good job of summarizing the current state of the law in the Commonwealth on grandparent visitation.  First the court points out that Kentucky does have a statute recognizing grandparent visitation, but notes that the statute has been impacted by the constitutional determinations of the United States Supreme Court in Troxel v. Granville.  In Troxel, the U.S. Supreme Court said that fit parents have a constitutionally protected right to raise their children as they see fit.  This includes prohibiting the chid's contact with certain people.  This case established that a fit parent acts in the best interests of the child.  In Walker v. Blair, the Commonwealth adopted a similar rule when it said a “court must presume that a fit parent is making decisions that are in the child’s best interest.”  In order for a grandparent to rebut this presumption, the grandparent must establish by clear and convincing evidence (a fairly high standard to meet), that grandparent visitation is in the child's best interests.  This means that the grandparent must prove that the parent's decision to deny visitation is clearly wrong and not in the child's best interests.  If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation.

Ultimately, in Waddle the Court of Appeals determined that the trial court had failed to make sufficient findings of fact to show that the grandparents had carried their burden of rebutting the presumption that the mother was acting in the best interests of the child.  This decision illustrates that while grandparent rights are still alive in Kentucky, they are difficult to establish in a court of law.

Photo courtesy of Brian Turner

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