Jun 22, 2016
In an opinion addressing the visitation rights of grandparents, the Supreme Court of Kentucky denied a grandmother’s request for visitation with her grandson who was under the care of his aunt and uncle. In its opinion, the court emphasized the importance of parental autonomy, and of ordering visitation only where a grandchild and grandparent had a strong preexisting bond.
The court’s opinion discussing grandparent visitation was written for the case titled Massie v. Navy. This case centered on a grandmother, Deborah Navy, who had filed an application seeking visitation with her grandson, Ian (a pseudonym chosen by the court). Ian’s biological mother and father were no longer a part of his life, and instead Ian lived with his paternal uncle and aunt, Larry and Christina Massie. The Massies had objected to Navy’s request for visitation, arguing that Navy had only a brief and intermittent relationship with her grandson. The couple asserted that Navy’s true motivation in seeking visitation was to reconnect her grandson to his mother, whom they claimed had a serious drug problem. Navy’s request was denied by the trial court, but the Court of Appeals found the trial court’s decision flawed, stating in part that an aunt and uncle do not have as fundamental a right to make decisions about how the child is reared. However, the Supreme Court sided with the trial court and denied the grandmother’s request for visitation.
In its decision, the Supreme Court referred to its earlier decision in the 2012 case titled Walker v. Blair, where they wrote, “a fit parent is presumed to act in the best interests of the child.” In order to prove that the court should overcome a parent’s wish not to allow the children’s grandparents to have visitation, the grandparents “must show by clear and convincing evidence that visitation is in the child’s best interests.” The court acknowledged that under other circumstances, a grandparent seeking visitation where an aunt and uncle, rather than father and mother, object to the visitation request, might not have to meet such a high standard to receive visitation. However, the grandmother in this case had failed to argue that a different standard should apply when she was before the trial court, thus losing her opportunity to argue that issue on appeal.
The Supreme Court noted that trial courts are permitted, but not required, to examine the following issues when deciding if visitation is in the grandchild’s best interests:
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;
7) the wishes and preferences of the child; and
8) the motivation of the adults participating in the grandparent visitation proceedings.
The Supreme court acknowledged that the trial court had focused primarily on the minimal amount of time that Navy had spent with her grandson prior to this request, but noted that the trial court is permitted but not required to analyze other factors when determining if visitation is in the child’s best interests. The visitation request was denied.
Note that in this case, the parents were already out of the child’s life by the time the grandmother filed her action for grandparents’ rights, and the child lived with the aunt and uncle when the action started. Had the grandmother obtained a custody order prior to the child living with the aunt and uncle, there would have been a different outcome to this case. There are a variety of factors that would provide an opportunity for the grandparent to obtain visitation or custody. If you’re a parent seeking to challenge a request for visitation or custody by a grandparent, or a grandparent seeking a legal right to visit with or have custody of your grandchildren, contact the experienced and determined family law attorneys at Greta Hoffman & Associates, at 859-535-0264.