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Grandparents' Rights/Grandparent Visitation

Posted by Jason Rapp | Oct 21, 2019 | 0 Comments

I get many calls concerning the issue of, what the caller labels as, “grandparents' rights.”  Since I receive numerous calls on this issue, it lets me know that there are both concerned grandparents out there who feel shut off from their grandchildren's lives as well as parents who feel like they are dealing with overbearing relatives.  The following is intended to serve as a general summary on the relevant case law in Kentucky regarding grandparent timesharing.  As this involves the law, rest assured there are exceptions and exceptions to those exceptions based on the particular facts of the case.  This is solely intended to serve as an informational “starting point.”   

Goodlett v. Brittain, 544 S.W.3d 656, (Ky.App. 2018) summarizes grandparent visitation matters very clearly and succinctly.  The Court analyzes as follows:

[T]he statutory basis for grandparent visitation must be considered in light of the constitutional considerations set out by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel, a majority of the Court found that parents have a fundamental liberty interest in the care, custody, and control of their children, that “[t]here is a presumption that fit parents act in the best interests of their children.” Id. at 68, 120 S.Ct. 2054. In applying this standard, the Court in Walker further explained,[s]o long as a parent is fit, there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. So a fit parent's wishes are not just a factor to consider in determining what is in the child's best interest. The constitutional presumption that a fit parent acts in the child's best interest is the starting point for a trial court's analysis under KRS 405.021(1)Id. at 870-71 (footnotes and internal quotations omitted).  To overcome the presumption the parent is acting in the child's best interests, the grandparents must show, by clear and convincing evidence, that visitation is in the child's best interest. Id. at 871. In making this determination, a trial court must consider a broad array of factors, including but not limited to: 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; and the wishes and preferences of the child.

Goodlett v. Brittain, 544 S.W.3d 656, (Ky.App. 2018)(citations omitted).

Importantly, the Court holds that:

the mere existence of a close relationship between the grandparents and the children, or the fact that the children lived in the grandparents' home for a time, will not always be sufficient to overcome the parental presumption. Finally, a fit parent does not waive his objections to entry of a grandparent visitation order merely because he never entirely denied visitation to the grandparents. Rather, the court must presume that the parent has the right to impose any limitations on a grandparent's visitation with the children.

Goodlett v. Brittain, 544 S.W.3d 656, (Ky.App. 2018)(citations omitted).

Further, “the Due Process Clause requires that a fit parent's decision be given special weight because there is a presumption that a fit parent acts in the child's best interest.”  Walker v. Blair, 382 S.W.3d 862, 869 (Ky.2012).  However, it is important to note that parental fitness is not a threshold question, as it is the presumption and the Court, “should not attempt to determine whether the parent is actually fit before presuming that the parent is acting in the child's best interest.”  Walker v. Blair, 382 S.W.3d 862, 871 (Ky.2012).  Notably:

The effect that granting visitation would have on the child's relationship with the parents is an important factor of the best interest analysis. The plurality opinion in Troxel recognized that “[t]he extension of statutory rights in this area to persons other than a child's parents ... comes with an obvious cost. For example, the [s]tate's recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship.” This is especially true if animosity exists between the parent and grandparent. Grandparent visitation should not be granted if it is clearly detrimental to the parent-child relationship.

Id. (emphasis added).

In addition, courts are not permitted to substitute what they think is a better option for the child.  “[T]he Due Process Clause does not permit a [s]tate to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better' decision could be made.”  Walker v. Blair, 382 S.W.3d 862, 870 (Ky.2012).

It should be clear by now that courts are to defer significantly to parental rights and decisions.  However, this does not create an absolute rule as I have handled plenty of cases for both grandparents as well as parents.  If you are dealing with such an issue in Lexington, Kentucky, or any of the Central Kentucky area, please do not hesitate to give me a call.

Jason Rapp

Franklin & Rapp

1001 Monarch St., Suite 120

Lexington, KY 40513

(859) 254-8051 

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