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. After, 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.
The Court of Appeals reversed the order of Trial Court and remanded for further proceedings. The Court of Appeals held that KRS 405.021(1)(b) and (c), which states that a “rebuttable presumption [arises] that visitation with the grandparent is in the best interest of the child” if “the parent of the child who is the son or daughter of the grandparent is deceased” and the grandparent can show a “pre-existing significant and viable relationship with the child;” and sets forth the four criteria by which a grandparent may prove a significant and viable relationship, not to be unconstitutional.
It reasoned that KRS 405.021(1)(b) and (c) are distinguishable from KRS 405.021(1)(a), because they provide a narrow avenue for a petitioning grandparent to be granted visitation. “It allows for a possibility of court ordered visitation only if a parent of the child is dead and the grandparent proves a factor showing a significant relationship with the child or the child is likely to be harmed due to the loss of the relationship.” However, KRS 405.021(1)(a) only required that a circuit court find it to be in the best interest of the child to have grandparent visitation—a broad statute applicable to the populous at large. Because KRS 405.021(1)(b) and (c) are narrowly tailored and present thresholds to overcome before visitation can be granted, they are not the same kind of statute reviewed by Troxel and Walker. Because statutes are presumed constitutional, the Court of Appeals held that KRS 405.021(1)(b) and (c) are not unconstitutional.
Digested by Nathan R. Hardymon