Maternal grandparent filed a KRS 405.021(1) motion seeking grandparent’s visitation rights with minor child. Child was living with his paternal aunt and uncle. The exact custody status was unclear, as at least one parent appeared to have some visitation. The general rule regarding grandparent visitation in Kentucky is the rule the Supreme Court set forth in Troxel and clarified in subsequent Kentucky case law;there is a presumption a fit parent acts in his or her child’s best interest when denying a grandparent visitation. A grandparent seeking visitation must show by clear and convincing evidence that grandparent visitation is in the child’s best interest.
In this case, the Appellate Court did not apply the clear and convincing standard use post Troxel, holding “KRS 405.021 has not been interpreted to require a grandparent to clearly show that visitation is in a child’s best interest against anyone besides a parent.” As it was the minor child’s aunt and uncle, and not parents, who denied maternal grandmother visitation, the Trial Court erred in using the clear and convincing standard. The Appellate Court remanded the case holding that no presumptions or preferences shall be given to nonparental custodians.
The dissent would have affirmed, believing the trial court correctly used the best interest of the child standard as set forth by Kentucky case law. Additionally, the dissent pointed out that the issue of whether a heightened grandparent visitation standard applies to nonparent guardians was not preserved for appeal.
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