Can Grandparents Get Visitation with Their Grandchildren?

Can Grandparents Get Visitation with Their Grandchildren?

The short answer is maybe.  Kentucky has a “grandparents visitation statute” as do most states.  At least most states did have grandparents visitation statutes prior to the 1999 term of the U.S. Supreme Court when the high court decided the case of Troxel v. Granville.

Kentucky’s version of a grandparent visitation statute is found at KRS 405.021.  That statute says that “[t]he 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.”  However, the Troxel decision says that fit parents have a constitutionally protected right to raise their children in any manner they think is best.  The problem arises when the the parent(s) determine that the manner in which they want to raise their child does not include seeing grandma and grandpa.

In the wake of the Troxel decision states across the country began striking down their grandparent visitation statutes.  Kentucky never actually ruled that its grandparent visitation statute was unconstitutional, but it became nearly impossible to win grandparent visitation in the circuit or family courts.

Then in 2004, the Kentucky Court of Appeals decided the case of Vibbert v. Vibbert.  In the Vibbert case, the Court of Appeals established a “modified best interest” standard and said that, while the parents’ wishes must be presumed to be in the best interest of the child, the grandparent can overcome that presumption without the need to show that denying the visitation would cause harm to the child.  In doing so, the court of appeals set forth a number of factors to consider including, but not limited to:

  1. the nature and stability of the relationship between the child and the grandparent seeking visitation;
  2. the amount of time spent together;
  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

With that in mind, the court of appeals overruled the trial court and remanded the Vibbert case for reconsideration of the grandfather’s request for visitation.  Keep in mind that in Vibbert, the grandfather actually had temporary custody of the children for a period of time as a result of dependency, neglect and abuse case.

With the decision in Vibbert, grandparent visitation in the Commonwealth went from impossible to get to just really difficult.  Then in 2012, the Kentucky Supreme Court weighed in on the grandparent visitation issue with its decision in Walker v. Blair.  In Walker the Commonwealth adopted a rule similar to the Troxel holding when it said a “court must presume that a fit parent is making decisions that are in the child’s best interest.”  Grandparents must establish by clear and convincing evidence (a fairly high standard to meet), that grandparent visitation is in the child’s best interests if mom or dad refuse to allow the grandparents to have contact.  The Kentucky Supreme Court approved of the court of appeals “modified best interest” standard from Vibbert, therefore, the presumption can be rebutted with proof of the factors set forth above.

A recent decision by the Kentucky Court of Appeals makes it clear that if a grandparent cannot meet his/her burden of rebutting the presumption that a fit parent is acting in the child’s best interest, the trial court must deny the grandparent’s motion.  If the parents are not together and share joint legal custody of the child, the trial court is likely to say that it is incumbent upon the parent in favor of the visitation to allow the grandparents to see the child during that parent’s time rather than adding the grandparents to the timesharing order.

It is clear that in Kentucky, although grandparents’ rights may be alive, they are not necessarily well.  If you are a grandparent seeking visitation with a grandchild, you will need to be prepared to prove that your relationship rises to a level greater than that of a “normal” grandparent and that you have historically played an active role in raising the child.

Photo courtesy of Jill M

Leave a Reply

Your email address will not be published. Required fields are marked *