Divorce Law Journal

KY Grandparent Visitation And Adoption; Zoeller v. Gutterman

ZOELLER V. GUTTERMAN
FAMILY LAW: GRANDPARENT VISITATION AND ADOPTION
2006-CA-002141
PUBLISHED: AFFIRMING
PANEL: THOMPSON, PRESIDING; NICKELL, STUMBO CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/26/2007
Grandmother and her Husband appealed from TC’s order holding that Grandfather had standing to seek grandparent visitation and that visitation would be in the best interest of Grandchild.

FACTS:
Grandchild was born to 15 year-old unwed Daughter, and no putative father was named. Daughter agreed that Grandmother and her Husband would be court-appointed guardians for Grandchild. Daughter died about two years later. Grandmother and Husband filed a Petition to adopt Grandchild in Jefferson Family Court, Division Three. Two weeks later, unaware of the pending adoption petition, Grandfather filed a petition for grandparent visitation in Jefferson Family Court, Division Four. The adoption petition was granted about a month later, prior to the entry of the grandparent visitation order. Grandfather than amended his petition in the visitation action, but Grandmother responded that he lacked standing to seek grandparent visitation because of the adoption. A GAL was appointed for grandchild. The GAL filed her report and motion requesting that Grandfather be granted immediate visitation. TC ultimately ordered that Grandfather have temporary visitation with Grandchild every weekend. After seeking a writ of prohibition from CA, which was denied, and receiving SC’s memorandum opinion affirming same, TC finally held evidentiary hearing. TC determined that Grandfather did have standing to proceed and that it was in Grandchild’s best interests to continue his relationship with Grandfather, and thus granted Grandfather’s petition and established terms of visitation. Grandmother and Husband filed CR 52 and 59 motions, both of which were denied, filed an appeal of these denials with CA, and subsequently filed a motion for intermediate relief with CA and requested emergency relief, which was denied.

ARGUMENTS AND ANALYSIS:
Grandmother and Husband contended that TC should have dismissed the case because Grandfather did not obtain a circuit court visitation order prior to the entry of the adoption decree, and KRS 405.021, the grandparent visitation statute, requires a visitation order to be issued by the circuit court prior to the termination of parental rights of a grandparent’s son or daughter to protect grandparent visitation rights with the children of that son or daughter. CA agreed that this was the correct interpretation of the statute, but that it was incorrectly applied as the case at bar did not concern termination of parental rights. CA found it to be even more important that the statute and cases interpreting it did not allude to situations where one grandparent used the adoption statute as a means to bypass the grandparents’ visitation statute, as CA found Grandmother to have done.

Because a parent’s rights lapse upon death, there is no contested proceeding to alert a grandparent that visitation rights need to be asserted. However, neither the adoption statute nor the grandparents’ visitation statutes require notice to a grandparent of a pending adoption petition. This could leave open the door to grandparents engaging in a race to the courthouse to conclude an adoption prior to the grandparent’s visitation petition. CA stated that the pending adoption petition in this case was such a significant fact that Grandmother and Husband were required to inform TC of its existence. CA found that Grandmother’s and Husband’s concealment of adoption petition was a “tactical maneuver to circumvent [Grandfather’s] right” to have TC determine whether visitation was in Grandchild’s best interest, and that such manipulation of the timing of the adoption precluded them from successfully challenging Grandfather’s standing.

Following the modified best interest standard for grandparents found in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), CA determined that, because there was strong evidence that Grandfather and Grandchild had a rewarding and loving relationship during Daughter’s lifetime and that Grandchild had established ties to Grandfather’s family, it was in Grandchild’s best interests to have visitation with Grandfather as established by TC.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Grandparent Visitation Practice Pointers

Following the digest of Keenan v Dawson, Michigan Court of Appeals Docket No 265725, decided June 5, 2007, Updates In Michigan Family Law gives some great practice pointers in handling grandparent visitation cases.

Amicus Briefs In US Supreme Court Grandparent Visitation Case

Howard Basham at How Appealing has posted amicus briefs for and against writ of certiorari in a grandparent visitation case in the US. Supreme Court, Fausey v. Hiller, No. 06-863.

Kentucky: Grandparent Visitation

This case is not yet final.
Vanwinkle v. Petry, __ S.W.3d __ (Ky. App. 2007), 2007 WL 121965 (Ky. App.)

Trial Court ordered that Grandparents were to approve any change in Mother’s visitation with children, though Mother and Father shared joint custody. Trial Court also, sua sponte, increased maternal grandparents’ visitation with minor grandchildren from one to two weekends per month.

Issue One: May the Court, sua sponte¸ award visitation to grandparents?

More Discussion About Grandparent Visitation

The Family Law Prof Blog reports: "Many thought the U.S. Supreme Court had essentially settled this issue in 2000 when it ruled that Tommie Granville, a mother in Washington state, could limit to once a month her two girls' contact with their paternal grandparents after the girls' father had committed suicide. But the issue is flaring anew. The highest courts of Pennsylvania, Utah and Colorado recently ordered grandparent visits in disputes strikingly similar to the 2000 case." They link to a USA Today.com Yahoo news report of October 5, 2006, Court Fights Hurt Children.
We posted about these cases here. Marcia Oddi at IndianaLawBlog posted about them here.

Two New Post-Troxel Grandparent Cases

Two More State Supreme Courts Uphold Grandparent Visitation Laws - Despite the Supreme Court's Holding that They Can Be Unconstitutional is an online article by Joanna Grossman posted yesterday. In it she digests the recent Utah and Pennsylvania cases upholding grandparent visitation along with links to them, to Troxel and to other post-Troxel cases
"Importantly, though, the Troxel Court did not rule in such a way as to necessitate the invalidation of grandparent visitation laws nationwide.
Granted, some third-party visitation statutes have been struck down under Troxel. Iowa, for example, struck down its law, criticizing the legislature's substitution of "sentimentality for constitutionality," to the detriment of parental decisionmaking.
However, within the last two years, California and Ohio have both upheld their state's laws against similar challenges, and, within the last month, Pennsylvania and Utah have joined them.
The Pennsylvania Supreme Court ruled, in Hiller v. Fausey, that a state law permitting grandparent visitation over the objection of the child's sole living parent was constitutional -- even without any showing that denying grandparent visitation would cause harm to the child...."
The Utah Supreme Court ruled similarly in Uzelacv. Thurgood, another case in which a father denied visitation with maternal grandparents after the mother's death."
It's a useful article to save in your brief bank.
UPDATE: Indiana Law Blog has a number of posts on this issue as well.

Ky S. Ct June 15, 2006 Footnotes

Much ado has been made over the Kentucky Supreme Court footnote 16 in Lisa Baker v. Ernie Fletcher, but on June 15, 2006, (now final) it appears that another gratuitous footnote was made. In B.F. v. T.D., the same-sex custody case based on the defacto custodian statute, at footnote 1, the court says "We also note grandparent visitation is not implicated here. Such cases are governed by KRS405.021."
Of what possible import is insertion of the grandparent visitation statute into a same-sex defacto custodian case? The possible fears of grandparents that the case at issue would affect their rights? If grandparents want rights as defacto custodians rather than mere visitation rights, why wouldn't this case implicate their rights?

ED v. Commonwealth of Kentucky and Cabinet for Health and Family Services, 152 SW3d 261 (Ky.App., 2004)

ED v. Commonwealth of Kentucky and Cabinet for Health and
Family Services, 152 SW3d 261 (Ky.App., 2004)
District Court order permitting grandparent to visit during parents'
visitation time was insufficient to entitle grandmother to visitation
after parental rights of parents were terminated. Statute governing
grandparent visitation requires a visitation order issued by Circuit
Court prior to the termination of parental rights.

Statute granting grandparent visitation requires a visitation order issued by Circuit Court prior to the termination of parental rights of grandparents' son or daughter to protect grandparent visitation rights with the children of that son or daughter. A District Court order establishing the number of hours of visitation that parents could have with their children in state custody and providing that grandparents may visit the children during this time was not sufficient to serve as a basis for maternal grandmother to have visitation with the children upon termination of the parents' parental rights. This order did not give grandparents visitation independent of the parents nor specify visitation rights for the grandmother, and there was no indication that court was aware of the maternal grandmother or her fitness for visitation.