In 2012, the Supreme Court of the United States limited third-party (often grandparent) visitation rights in Troxel v. Granville:
A majority of the Court agreed that under the Due Process Clause of the Fourteenth Amendment, parents have a fundamental liberty interest in the care, custody, and control of their children. And a majority concurred that “there is a presumption that fit parents act in the best interests of their children.” The plurality opinion did not define the precise scope of the parental due process right in the grandparent visitation context.
Walker v. Blair, 382 S.W.3d 862, 868-69 (Ky. 2012)(setting forth the holding in Troxel v. Granville,530 U.S. 57 (2000).
It has been nearly a decade since the Supreme Court’s decision in Troxel and Kentucky courts have published several cases clarifying Troxel for application under Kentucky law. Kentucky statute provides for grandparent visitation on the following grounds:
The 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.
KRS 405.021(1)(a). Previously, KRS 405.021(1)(b) and (c) shifted the burden in Troxel when a grandparent was seeking visitation after the death of his or her child; however, the Supreme Court recently found that the presumption shift was unconstitutional.
In Kentucky, the Supreme Court has laid out a number of factors courts must consider when making a determination regarding grandparent rights pursuant to KRS 405.021(1)(a) which has not been declared unconstitutional. The Court will look to “the motivation of the adults participating in the grandparent visitation proceedings” as well as a number of factors outlined in Walker:
1) the nature and stability of the relationship between the child and the grandparent seeking visitation;
2) the amount of time the grandparent and child 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.
Walker v. Blair, 382 S.W.3d 862, 871 (Ky. 2012). The Court will conduct a fact specific inquiry into the facts. The Court is not required to consider all of the factors but should consider those pertinent to the facts of the individual case before it. Massie v. Navy, 487 S.W.3d 443, 447 (Ky. 2016)
If you are thinking about initiating Court action to establish visitation as a grandparent, you may want to talk to an attorney. The attorney can help you determine the strength of your case, and help you explore whether options outside of litigation might be more likely to result in preservation of your important grandparent grandchild relationship.
