Divorce Law Journal

Grandparent Visitation - Published Opinion from Ky Supreme Court May 5, 2016

MASSIE, ET AL. V. NAVY

“Questions Presented: Domestic Relations. Grandparent Visitation. Issues include the applicability of Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) and the “modified best interests” standard when a child’s custodians are a paternal uncle and aunt.”

Maternal grandmother filed action for visitation against child’s aunt and uncle who had possession of the child, as well as biological  parents of child. The trial court denied grandmother’s request for visitation rights and she appealed.

The Court of Appeals reversed the trial court’s ruling denying visitation and remanded holding the trial court failed to consider all of the necessary factors under Kentucky law. The Court of Appeals used a less stringent standard than the clear and convincing standard set forth in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) because aunt and uncle were denying grandparent visitation not biological parents who did not respond to the court action.

Aunt and uncle were granted discretionary review by the Kentucky Supreme Court. The Supreme Court fist addresses the appropriate legal standard finding grandmother failed to preserve the issue for appeal. The “clear and convincing” standard was used in the trial court proceedings and grandmother failed to object.

Next the Supreme Court turns to the Court of Appeals holding that the trial court erred by failing to consider all of the factors under Kentucky law. Walker sets forth several factors for courts to utilize in determining whether or not grandparent visitation is in a child’s best interest, incorporating the U.S. Supreme Court case Troxel v. Grandville, 530 U.S. 57 (2000). The Supreme Court holds that all of the Walker factors need not be considered. As is the case here, where the trial court considers several relevant factors and denies grandparent visitation its factual findings are not clearly erroneous. Grandmother failed to directly challenge any of the trial court’s evidentiary rulings, therefore the Supreme Court reverses the Court of Appeals and reinstates the trial court’s order.

Digested by Elizabeth M. Howell

Published DeFacto Custodian Opinion from Ky Court of Appeals April 29, 2016

CHADWICK V. FLORA, ET AL.

Grandmother appealed an order finding she was not a de facto custodian of her grandchild. The order also denied her motion for custody and visitation.

Grandmother’s first argument on appeal is that the trial court erred in finding she did not met the KRS 403.270(1)(a) standard for a de facto custodian. The Court of Appeals agrees with the trial court and holds Grandmother was not a de facto custodian because she was not the child’s primary caregiver. “A grandparent who co-parents a child with the natural mother or father does not make the grandparent the primary caregiver.”

Grandmother next argues that the trial court should have held Father in contempt for violating the terms of an agreement Grandmother and Father made regarding visitation. The Court of Appeals holds the trial court did not err by denying the contempt motion as the trial court’s finding that Father was not at fault was fully supported by the evidence. Grandmother also argues the testimony of  the child’s counselor should not have been admitted as evidence because Father failed to disclose her as an expert in discovery. The Court of Appeals again affirms  the trial court, holding the counselor’s testimony was not utilized for the de facto custodian issue, only limited to  contempt.

Grandmother’s final argument is that the trial court should have held further hearings regarding custody and visitation, as the original hearing was limited to the issue of de facto custodianship. The Court of Appeals agrees holding the original hearing was limited and remands the case for additional proceedings on custody and visitation. The court notes that as Grandmother is not a de facto custodian she “must prove either: (1) the parents are shown by clear and convincing evidence to be unfit custodians; or (2) the parents have waived their superior right to custody by clear and convincing evidence,” to be successful in obtaining custody. Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010).

Digested by Elizabeth M. Howell

Ky grandparent visitation as against a non-parent custodian: Ky Court of Appeals Published Opinion August 14, 2015

NAVY V. MASSIE, ET AL.

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.

Fourth Published Family Law Opinion from Ky Court of Appeals Today

Waddle v. Waddle

Award of grandparent visitation reversed because court failed to apply the modified best interest standard to consider the objection of mother who is presumed fit. Court must presume a fit parent is making decisions in the best interest of the child. Case was remanded for a new evidentiary hearing at which grandparents must provide clear and convincing evidence that visitation is in the child’s best interest and trial court must use Walker factors and provide written findings of fact.

Three Published Family Law Opinions from Ky Court of Appeals Today

Middleton v. Middleton Interesting 50 page opinion and dissent addressing characterization of distributions from family trust, nonmarital tracing and standard of proof, division of marital personalty, assignment of debt, attorney fees and costs.

 

D.L.B. v. Cabinet for Health and Family Services, et al  Conversion of involuntary termination of parental rights action into a voluntary termination action and concurrent dismissal of father from proceedings was abuse of discretion.

 

Murry v. Murry  Denial of attorney fees in grandparent visitation modification affirmed as there is no fee shifting provision in KRS Chapter 405. Findings that prior visitation order had not been working and presents more problems than it resolves falls short of the requirement that necessary facts be found specifically so case was remanded to trial court to make further factual findings.

Published Family Law Opinion from Ky Court of Appeals 11/27/13: Fairhurst v. Moon, Even though parent had never completely denied grandparent visitation, court may not presume grandparent visitation is in children’s best interest. Rather, court must pre

Fairhurst et al v. Moon 

Even though parent had never completely denied grandparent visitation, court may not presume grandparent visitation is in children’s best interest. Rather, court must presume parents have the right to limit visitation with grandparents and grandparent retains burden of proving that court-ordered visitation is in children’s best interests.

 

Grandparent Visitation, Palmer v. Brunett digest, Ky Court of Appeals

Palmer v. Burnett, 2011-CA-002097-ME

Issue:  Grandparent visitation

Published:   Affirming   

County:  Jefferson

Maternal Biological Grandmother appealed FC’s order dismissing her motion for grandparent visitation on the basis that she lacked standing.       

FACTS:

In 1990, Michelle voluntarily relinquished her parental rights to Kristen and Michelle’s mother, Kristen’s biological grandmother, adopted Kristen.  In 2004, Kristen gave birth to Alexis.  Despite termination of Michelle’s parental rights to Kristen, Michelle and her husband developed a close relationship with Alexis.  Alexis even resided with them for several months.  However, in 2010, Michelle and her husband obtained DVOs against Kristen on the basis that she threatened to kill them.  Kristen and Alexis’ father then refused to allow Michelle and her husband to have contact with Alexis.  Michelle and her husband initiated a custody action, asserting standing as de facto custodians.  FC dismissed the custody action, finding that Michelle and her husband had not been Alexis’ primary caregivers for at least one year prior to filing the petition as required under KRS 403.270.  Michelle and her husband then filed a grandparent visitation action, which FC also dismissed, finding that due to the termination of Michelle’s parental rights to Kristen, she was not legally Alexis’ grandmother (and her husband, lacking even a biological relationship to Alexis, was also not a legal grandparent.)  However, FC implored CA to overturn its finding regarding standing, finding that a continued relationship with Michelle and her husband was in Alexis’ best interests.  Michelle and her husband appealed, although no argument was presented on husband’s behalf. 

ANALYSIS:

CA noted that termination of parental rights constitutes a permanent severance of the parent-child relationship—it is as if the parents of a child suddenly died, as there is no longer a legal right to contact between the parents and the child.  All parental rights are then vested in the adoptive parent.  Thus, Michelle’s termination of her parental rights to Kristen included termination of a future right to a relationship with Alexis, and Kristen and Michelle became sisters for legal purposes, meaning Michelle is legally considered Alexis’ aunt.  As there is no statutory protection for visitation rights of aunts and uncles, Michelle had no standing to pursue visitation of Alexis.

Affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

Grandparent Visitation, Walker v. Blair, Ky Supreme Court, Digest of Opinion

Walker v.Blair

2012-SC-000004-DGE

Published:  Reversing and Remanding

County:     Jefferson

 In Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court recognized the constitutionally protected liberty interest of parents to raise their children without government interference.  The Supreme Court of Kentucky accepted discretionary review of this case to consider interpretation of KRS 405.021(1) consistent with the principles articulated in Troxel.

Appellant, Michelle Walker, and Steve Blair had one child, B.B.  Steve committed suicide and thereafter his mother, Appellee, Donna Blair, filed a petition to establish visitation with five-year-old B.B.  The trial court held an evidentiary hearing in which both parties and Blair’s ex-husband, Martin Blair, B.B.’s paternal grandfather, testified.

Blair testified that she and B.B. had a close, loving relationship.  She was taking three antidepressant medications, but testified that her mental condition is stable.  Walker testified that Blair had infrequent contact with B.B. and that the child had not asked to call or see his grandparents.  Walker said she would follow the recommendation of B.B.’s therapist regarding his contact with Blair.

The trial court found it was in B.B.’s best interest to grant visitation to Blair. Working with B.B.’s therapist, the eventual goal was at least one overnight visit per month and reasonable visitation during holidays.  The trial court denied Walker’s motion to alter, amend or vacate, and on Walker’s appeal, the Court of Appeals affirmed the trial court.

The trial court’s findings are reviewed applying the clearly erroneous standard, but the interpretation of KRS 405.021(1) and the application of the appropriate standard are issues of law to be reviewed de novo.

The Kentucky Supreme Court last addressed this issue in 1992 in King v. King, 829 S.W.2d 630 (Ky. 1992).  KRS 405.021(1) provides that the court may grant reasonable visitation to grandparents if it determines that it is in the child’s best interest, based on a preponderance of the evidence standard.

Eight years later, the Supreme Court of the United States decided Troxel v. Granville, involving a Washington statute which permitted any person to petition for visitation rights if it served the child’s best interest.  The trial court granted visitation to a child’s grandparents, but on appeal, the Washington Supreme Court held that the statute unconstitutionally interfered with parents’ fundamental right to raise their children.  The U.S. Supreme Court affirmed the state supreme court’s decision.  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 concurred that there is a presumption that fit parents act in the best interest of their children.

Scott v. Scott, 80 S.W.3d 447 (Ky. App. 2002), overruled by Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), interpreted KRS 405.021(1) in light of Troxel, holding that grandparent visitation could only be granted over the objection of a fit parent if it is shown by clear and convincing evidence that the child would be harmed by deprivation of visitation with the grandparent.

Just two years later, the Court of Appeals, sitting en banc, decided the Scott panel misread Troxel and overturned Scott in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004).  The Vibbert court required grandparents to prove by clear and convincing evidence that the requested visitation is in the best interest of the child and included a list of factors to consider.

Because the King decision effectively placed grandparents and parents on equal footing in determining grandparent visitation rights and did not recognize a presumption in favor of a fit parent’s decision to deny visitation, Troxel overturned King.  KRS 405.020(1), however, is not unconstitutional, and the modified best interest standard established in Vibbert is approved.

The starting point for a trial court’s analysis under KRS 405.021(1) is that a fit parent acts in the child’s best interest.  The grandparent must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child’s best interest.  Lacking such evidence, parental opposition alone is sufficient to deny grandparent visitation.

The trial court should not attempt to determine whether the parent is fit before presuming the parent is acting in the child’s best interest.  The trial court must presume the parent is fit and turn to the Vibbert factors to decide if the parent is mistaken in the belief that grandparent visitation is not in the child’s best interest.

If a grandparent demonstrates that harm to the child will result from deprivation of visitation with the grandparent, this is strong evidence that the visitation is in the child’s best interest.  The factors in the Vibbert modified best interest analysis must be considered.  A trial court may not override parents’ constitutional liberty interest in rearing their child just because the judge believes a better decision could be made.

The trial court cited Baker v. Perkins, 774 S.W.2d 129 (Ky. App. 1989) for the proposition that parental opposition is not sufficient alone to deny the grandparent visitation, which does not afford a fit parent’s decision the presumption required by Troxel.  To the extent that Baker v. Perkins conflicts with the standard, it is overruled. The trial court’s reliance on King is also erroneous, because after Troxel, King is no longer good law.

The Supreme Court remanded to the trial court for a new evidentiary hearing applying the modified best interest standard consistent with the opinion.

The Court properly denied Appellant’s motion to dismiss because the legislature did not intend to force a grandparent whose child is deceased to choose between seeking noncustodial visitation and pay child support or forfeiting visitation altogether.

The decision of the Court of Appeals is reversed, the trial court’s visitation order is vacated, and this case is remanded to the trial court with directions to conduct a new evidentiary hearing applying legal standards consistent with this opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Ball v. Tatum, Ky COA, De Facto Custodians

Ball v. Tatum

No. 2011-CA-001716-ME

Published: Opinion Affirming

County: Daviess

Jessica Ball appeals from an Order entered by the Daviess Circuit Court designating her adoptive parents, Henrietta and Fred Tatum, de facto custodian of E.N.K., her special needs daughter.  The court awarded Ball and the Tatums joint custody of the four-year-old child who was born premature and suffers from cerebral palsy, epileptic seizures, and asthma, and is unable to walk or talk.  Bell maintains the Tatums did not qualify as de facto custodians because they had not been the child’s exclusive caregivers and financial supporters for one year as required by KRS 403.270.

Ball is the adopted adult daughter of the Tatums, who are also her biological grandparents.  There is no allegation that Ball is an unfit mother or that she waived her superior right to custody of her daughter.

 In November, 2010, E.N.K. had a seizure while with Ball and the Tatums feared it was caused by Ball’s failure to administer E.N.K.’s medication as prescribed.  They petitioned the court to name them de facto custodians of E.N.K. and place the child in their care.  After a hearing on the motion for temporary custody, the court granted the motion, reserving the issue of whether the Tatums qualified as de facto custodians.

Hearings by the court and the commissioner showed instability in Ball’s life.  She has lived in ten locations since E.N.K. was born, she has two children by different fathers and currently expecting a third child by another man.  She does not work regularly, yells and curses at E.N.K., and smokes in the child’s presence aggravating the child’s condition.  She misses many of the three weekly physical therapy appointments essential to the child’s progress because of late nights and drinking.  She squandered $6000 in back social security benefits paid to the child, and did not share any of the $570 monthly benefits with the Tatums.

The Tatums are retired, have been married 46 years, have been residents of Kentucky since 1982 and lived in their current home for eleven years.  The Tatums provided Ball with a vehicle and rent-free living space for Ball and her children and according to Fred were their granddaughter’s primary caregivers and financial supporters from E.K.N’s birth in 2006 until summer of 2010.

The commissioner determined that the Tatums qualified as de facto custodian and recommended naming them as E.N.K.’s primary residential custodians, allowing Ball to have parenting time.  At a hearing on Ball’s exceptions to the commissioner’s report, the court ruled from the bench that it was adopting the commissioner’s recommendation in full, denying Ball’s exceptions, and finding that Ball had failed to provide for E.N.K.’s essential needs for reasons other than poverty.  The court did not find Ball unfit, but rather that she was not suitable to care for the child at the present time.  The Tatums were ordered to pay one-half E.N.K.’s social security benefits to Ball, which was amended after the social security office advised that sharing benefits with Ball could jeopardize future payments.

This appeal challenged whether the Tatums qualified as de facto custodians and if so whether it was in the child’s best interest to be placed in their joint custody with Ball.

The Court of Appeals stated that the statute does not require a de facto custodian to prove he is the child’s sole or exclusive provider, but rather he must prove he is the child’s primary caregiver and primary financial supporter.  After reviewing the evidence, the Court of Appeals concluded that the Tatums designation as de facto custodians was not clear error and would not be disturbed.

With respect to the award of joint custody, the Court of Appeals found that the trial court had considered all the relevant factors and found no clear error or abuse of discretion in the decision to award joint custody to Ball and the Tatums.

For these reasons, the amended order of the Daviess Circuit Court entered on August 11, 2001 is affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Miller v. Norris, Ky COA, Grandparent Visitation

Miller v. Norris

No. 2011-CA-001285-ME

Published: Opinion Affirming

County: Jefferson

Janet Miller appeals from Order of Jefferson Family Court granting summary judgment and dismissing her action seeking grandparent visitation.

In 2007, the Commonwealth removed two children from the custody of their biological parents and instituted a termination of parental rights action.  After the parents’ rights were terminated, the children were placed in foster care with Appellees Roxanne and Donald Norris, who adopted them in December, 2008.

The Norrises initially permitted Appellant, Janet Miller, the biological maternal grandmother of the children, to visit the children every Saturday with the understanding the children would have no contact with the biological mother.  After a visit with Appellant in February, 2010, the oldest child reported a telephone conversation with a woman during the visit.  The Norrises determined that it was in the children’s best interest to stop the visits with Miller to avoid contact by the children with the biological mother.

Miller testified that she had previously abandoned the idea of a grandparent visitation proceeding because the Norrises assured her they would never keep her from seeing the children.  Mr. Norris testified that although visits with Miller were allowed, she was never told that her access to the children was unconditional.

In August 2010, Miller filed a Petition for Grandparent Visitation.  The Norrises filed an answer and moved to dismiss under CR 12.02 alleging the complaint failed to state a claim upon which relief could be granted.  The Court utilized CR 56 and treated the motion as one seeking summary judgment and in June, 2011 it entered an Order Granting Summary Judgment and Dismissing the Action in favor of the Norrises.  The Court determined that termination of the biological mother’s parental rights also terminated Miller’s statutory right to seek grandparent visitation.  The Court ruled that KRS Chapter 405 gave Miller the right to pursue grandparent visitation only during the time her daughter had parental rights.  The Court rejected Miller’s argument that the doctrine of equitable estoppel should preclude the Norrises from asserting the defense that Miller had not complied with KRS Chapter 405.

Miller argued that the trial court improperly rejected her contention that the doctrine of equitable estoppel should bar the Norrises from arguing that Miller failed to assert a claim in conformity with KRS Chapter 405.  Miller asserted that had the Court accepted as true her claim that the Norrises told her she would always be allowed to visit the the children, she would also have been entitled to assert a claim of equitable estoppel.

The Court of Appeals noted that summary judgment shall be rendered if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.  The Court cited the elements of equitable estoppel which a party seeking to advance a claim must show, which are lack of knowledge of the truth, reliance on the conduct of the party to be estopped, and action or inaction which changes the conduct of the party claiming the estoppel, to his detriment.

The Court of Appeals found that in rejecting Miller’s claim of equitable estoppel, the trial court made a determination that Miller was aware of the necessity to seek grandparent visitation and the means of doing so though retained counsel.  Therefore, the Norrises were not barred by the doctrine of equitable estoppel from asserting the defense of Miller’s failure to comply with KRS Chapter 405.

Holding that the trial court correctly found there were no genuine issues as to any material fact and the Norrises were entitled to a judgment as a matter of law, the Court of Appeals affirmed the Summary Judgment of the Jefferson Family Court.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Kidd V. Combs, Ky Ct of Appeals, De Facto Custodian and Child Custody

Aaron K. Kidd v. James Combs

No. 2009-CA-002260-ME and 2009-CA-002299-ME

Published: Opinion Affirming

County: Perry

Aaron Kidd appealed from the Perry Circuit Court ruling related to the custody of his daughter, Jaiden.  The Court awarded joint custody to Kidd and Jaiden’s maternal great-grandparents, James and Irene Combs, designated the Combses as the primary residential custodians and ordered visitation for Kidd and Jaiden’s mother, Shannon Combs.  Kidd contests the Court’s designation of the Combses as de facto custodians and the custody ruling.

Aaron Kidd and Shannon Combs, Jaiden’s parents, never married, but began living together in Lexington in October 2001.  Jaiden was born in July, 2002.  In February, 2003, Aaron sustained a gunshot wound to the face in the line of duty as a police officer, in a confrontation in which Aaron shot and killed his attacker.  The ensuing controversy and safety concerns led Shannon to ask her grandparents (who had raised her) to take Jaiden to Hazard until Aaron recovered and the investigations were complete.  When Aaron returned to work as a police officer, Shannon was working and attending college, so they decided to leave Jaiden with the Combses until Shannon completed her education.   The parents visited the child in Hazard and the child visited them in Lexington.  When Aaron and Shannon broke up in 2006, a paternity test established that Aaron was Jaiden’s father.

Jaiden lived with the Combses from 2003 until 2007.  In 2006 it was determined that Jaiden needed dental care but Shannon was afraid to allow the required general anesthesia to be administered.  In 2007, Aaron took Jaiden to his own dentist, who performed the necessary extractions and fillings.

In July, 2007 Shannon filed a petition against Aaron for custody and child support and he filed a counterclaim seeking custody of Jaiden.  After a temporary custody hearing on August 3, 2007, the Court found the Combses to be de facto custodians and granted them temporary custody.  The Combses moved to intervene and for de facto custody.  The motion to intervene was granted, the petition was filed and a guardian ad litem was appointed for Jaiden.

A Domestic Relations Commissioner conducted a hearing in February, 2009.  The GAL recommended joint custody to the Combses and Aaron, and the DRC recommended sole custody to the Combses, with visitation to Aaron and Shannon.  The Court awarded joint custody to the Combses and Aaron with reasonable visitation for Shannon.  Aaron appealed the custody ruling and the Combses cross-appealed from the joint custody award, seeking sole custody of Jaiden.

During the pendency of the Appeal, Irene Combs died.  Aaron moved to remand this case to circuit court for consideration of his motion to modify custody because of the change in circumstances.  After an evidentiary hearing, James and Aaron were awarded joint custody, James continuing as primary residential custodian and visitation as previously ordered for Shannon and Aaron.  The case returned to the Court of Appeals to determine if the Combses were properly named as de facto custodians and joined as parties after the temporary custody hearing.

The Court of Appeals held that the circuit court had statutory authority to join the Combses as parties to the custody action and allow them to intervene and petition for custody once it found they met the requirements to be de facto custodians.  To determine if the Combses were properly named de facto custodians, the Court of Appeals explained that the meet this status, a person must have been the child’s primary caregiver and the primary financial supporter of the child.

The Court found that the Combses had been primary caregivers and financial supporters of Jaiden and provided her only real home in her first five years.  Aaron argued that a six-week period when he took Jaiden to his home broke the period of time required to qualify as a de facto custodian.  This was rejected by the Court because the Combses never agreed that Aaron was taking the child for more than a week’s visit.

The Court of Appeals held that the Circuit Court did not abuse its discretion in designating the Combses as de facto custodians and affirmed the 2009 custody award.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Walker v. Blair, Ky COA, Grandparent Visitation

Walker v. Blair

2010-CA-002228-ME

Published:  Affirming

County: Jefferson

Mom appealed TC’s Order granting visitation to Paternal Grandmother (“Grandmother”) after Dad’s suicide.

FACTUAL AND PROCEDURAL BACKGROUND:

Mom and Dad had one Child in common; after Dad committed suicide, Grandmother filed a petition to establish grandparent visitation pursuant to KRS 405.021(1).  Mom filed motion to dismiss petition, claiming it was not in Child’s best interests to have visitation with Grandmother and that KRS 405.021(3) was applicable and Grandmother failed to state a claim under that subsection.  TC denied motion to dismiss.  After hearing, FC ordered that it was in Child’s best interests to have visitation with Grandmother and that, after re-initiation of contact in therapy, Grandmother should ultimately have a full day visit every other week or one overnight every month, plus reasonable visitation during the holidays.  Mom filed post-judgment motions challenging FC’s order, which were denied. Mom appealed.

ANALYSIS:

Mom argued FC erred in failing to dismiss Mom’s petition, claiming that because Grandmother was seeking substantial and liberal visitation rights, she was seeking “noncustodial parental visitation rights” under KRS 405.021(3), which would require Grandmother to pay child support.  As Grandmother had not paid for financial support of Child, Mom claimed she lacked standing to file the petition.  CA disagreed, noting that Grandmother’s petition sought only grandparent visitation, which is provided by KRS 405.021(1). 

“It is not the death of a parent that functions to trigger the imposition of visitation and child support pursuant to KRS 405.021(3) but the breadth of visitation sought by the grandparent. A grandparent is still a grandparent whether or not her child, as the parent of the grandchild, is deceased.  A party must actually be pursuing and receive that visitation normally awarded to a noncustodial parent before it is ordered to pay child support.”  CA noted that FC’s awarded visitation to Grandmother was much less than would be typically given to a non-custodial parent. 

Mom next argued that Grandmother failed to establish by clear and convincing evidence that it was in Child’s best interests to have visitation with her.  CA disagreed, finding that Grandmother’s evidence was sufficient for FC to conclude that Child had and would continue to benefit from relationship with her; though Mom expressed concern over Child’s potential contact with Grandmother’s ex-husband, CA noted that FC’s order did not provide for visitation with him and in fact provided that Child was not to have contact with him.

FC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

L.D. v. J.H., Ky COA, Grandparents’ Standing in Dependency Cases

L.D. v. J.H.

2010-CA-000792-ME

Published:  Affirming

County: Warren

After Child was removed from Mom’s custody by Cabinet because of environmental neglect and the fact that Mom’s husband was registered sex offender, Child was ultimately placed with paternal Grandparents.  One year later, Grandparents file motion for designation as de facto custodians and for permanent custody.  FC granted permanent custody to Grandparents.  Mom appealed.

Mom first argued that Grandparents lacked standing to commence custody action because they did not qualify as de facto custodians.  In order to qualify for de facto custodian status, one must provide primary care for a child for a requisite amount of time; but the time after a parent seeks custody of the child is not included.  Mom claimed that because she always wished to have Child in her care and because Cabinet’s permanency plan had a goal of returning Child to her care, that qualified as “commencing a legal proceeding,” sufficient to interrupt the one-year primary caregiver requirement of KRS 403.270.  CA disagreed that Mom’s wishes or the Cabinet’s permanency goal qualified as “commencing a legal proceeding.”  However, CA further found that Grandparents’ standing was conferred by KRS 620.027, which specifically confers to Grandparents the same standing given to parents, provided the child is residing with the Grandparents in a stable relationship.  CA held that substantial evidence supported FC’s finding that Grandparents provided a stable environment for Child and therefore had standing.

Mom next argued that because Grandparents agreed to Cabinet’s permanency plan with a stated goal of returning Child to Mom, Grandparents waived their right to seek permanent custody of Child.  CA found no precedent or authority for this claim, and further found that to so penalize Grandparents for cooperating with Cabinet would be detrimental to the Cabinet’s purpose. 

Next, Mom argued that FC did not give equal consideration to both parties in determining custody, and that FC refused to hear evidence about her fitness to have Child returned to her.  CA found that since Mom did not file a motion to regain custody of Child, the proceeding was rightfully limited to Grandparents’ motion for permanent custody, and that FC considered all relevant factors in its determination.    

Lastly, Mom argued that FC should have granted her request to speak to Child in chambers.  CA found that FC properly quashed subpoena based upon improper service (service upon Child instead of Guardian Ad Litem) as well as the Child’s therapist’s recommendations. 

FC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

Heltsey v. Frogge, Ky COA, De Facto Custodian and Attorney Fee Awards

Heltsey v. Frogge

2009-CA-001867-ME AND NO. 2010-CA-000049

Issues:  Published:  Affirming

County: Warren

DE FACTO CUSTODIAN AND TOLLING STATUTE:

KRS 403.270(1)(a) provides that, in calculating the minimum period of time during which a person must be the sole primary caregiver and financial supporter of a child in order to qualify for de facto custodian status, the requisite period of time shall not include any period of time after a legal proceeding has been commenced by a parent.  CA held in this case that this “tolling period” does not require the parent to file a new and separate lawsuit; and that, in this case, numerous pleadings were independently sufficient to trigger the tolling provision, including Father’s pro se motion for custody, Mother’s Petition for Dissolution of Marriage demanding custody, Father’s response to the petition demanding custody, and Father’s response to Grandparents’ Intervening Petition.  Thus, Grandparents were not primary caregivers for the statutory period and they could not have standing as de facto custodians.

ATTORNEY’S FEES AWARD:

FC did not err in ordering Grandparents to pay $2,500 of Father’s $36,000 attorney’s fees; FC was not required to find that Grandparents employed delay tactics; FC need only consider the financial resources of the parties and Grandparents had maintained throughout the action that Father was unable to financially support Child while they were capable of doing so. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

Leach v. Harrison, Ky COA, Parent Fitness For Sole Custody As Against Non-Parent

Leach v. Harrison

No. 2009-CA-000622-ME on remand from Supreme Court of KY.

No. 2010-SC-000018-DGE

Published:  Opinion Affirming

County:  Estill

 

Father appealed order of trial court granting permanent sole custody of his three children to their maternal grandparents, the Appellees.  He argued that the Trial Court erred in finding him to be an unfit parent and by finding it was in the best interests of the children to be placed with the maternal grandparents.

 

The only question on appeal is father’s fitness to have sole custody of the children, because the mother stipulated to neglect in Madison Circuit Court and does not appeal.

 

As a result of more than eight investigations by the Department for Community Based Services related to the mother’s abuse and neglect of the children, the children were removed from the home.  The father was implicated for his failure to prevent the mother’s abuse and neglect.

 

In August, 2006 one child was placed with the maternal grandparents and one child was staying with the paternal grandparents.  After gaining temporary custody of these two children, the maternal grandparents filed petitions for permanent sole custody of both.  On the recommendation of the Domestic Relations Commissioner, the children were returned to the parents with orders prohibiting corporal punishment.  The maternal grandparents were awarded weekly visitation, but the parents failed to produce the children for 23 regularly scheduled visitations.

 

In August, 2007 the mother violated the court’s order and corporally punished one of the children and father failed to prevent it.  The two older children were placed with the maternal grandparents and the infant was placed with them in December.  Abuse allegations were substantiated against the mother and both parents were found to have neglected all three children.  Mother stipulated to neglect in Madison Family Court, and the court found that father also had neglected them.

 

After venue was transferred to Estill Circuit Court, the Domestic Relations Commissioner recommended awarding custody to father, visitation rights to maternal grandparents and eventual visitation rights to mother.  The grandparents filed exceptions.  The trial court subsequently rejected the DRC’s recommendation noting that the court feared “three potential homicides” if the children were returned to Dad because he seemed incapable of protecting them from their mother.

 

The father appealed and the CA determined that maternal grandparents lacked standing and the TC lacked subject matter jurisdiction due to repeal of KRS 403.420.  The Supreme Court accepted the case for discretionary review and held that standing can be waived in Kentucky and circuit courts have SJM over all child custody matters regardless of whether there is a statute specifically allowing such suit.  The Supreme Court remanded to Court of Appeals for a determination on the merits.

 

Father’s only argument on appeal is that TC’s finding that he was an unfit parent was unsupported by substantial evidence.  CA noted that since repeal of KRS 403.420, there is no longer a statute directing the standards to be applied by the TC, and consequently the court used the standards previously employed in cases of nonparents seeking custody.  Two ways for a nonparent having physical custody of a child to challenge a biological parent’s superior right is 1) a showing of unfitness sufficient to support involuntary termination or 2) parent’s voluntary waiver of their superior right to custody.

 

If nonparent shows by clear and convincing evidence that parent’s behavior could result in termination of parental rights, the TC may determine custody under a “best interest of the child” standard, with the nonparent on equal footing with parent.   The CA held that the TC made a finding that father was unfit and properly used the best interest standard in making its custody determination.  The CA found ample evidence presented at the hearing that father either allowed or failed to prevent mother’s abuse, as well as the adjudication of neglect by the Madison Family Court.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

Grayson v. Grayson, Ky COA, Grandparent Visitation

Grayson v. Grayson, 2009-CA-001963-ME

Issue:  Judgment granting grandparents limited visitation over objection of children’s parents reversed.

Published:  Reversed

County:  Mason

 

Stephanie and Shane Grayson and their two minor children appealed from a judgment of the Mason Circuit Court granting June Grayson, paternal grandmother of the children, limited grandparent visitation despite the vehement objection of the children’s parents.

 

The evidence revealed Grandmother’s extreme vitriol toward the children’s parents as well as the fact that they did not want their children to have any contact with Grandmother.  They did not attempt to restrict the children’s contact with their paternal Grandfather or other family members.

 

The testimony revealed that Mother and Father were fit parents.  The Court of Appeals cited Vibbert v. Vibbert, 144 S.W.3d 242 (Ky. App. 2004), which held that the decisions of fit parents must be given deference by the Courts, and Courts must presume that decisions of fit parents are made in the child’s best interest.  The Court reviewed the factors set out in Vibbert and concluded that in this case the detriment of normal visitation outweighs its benefits.

 

Grandmother relied on language in King v. King, 828 S.W.2d 630 (Ky. 1992) suggesting that a family quarrel of little significance should not disrupt the grandparent/grandchild relationship.  In this case, however, the Court acknowledged that the relationships are “totally fractured” and “very little contact is appropriate in the children’s best interest.”

 

The guardian ad litem testified that if grandparent visitation was denied, there would be no harm resulting to the children, but if the visitation was granted, it would “endanger this happy family;” and therefore Court imposed visitation was not recommended.

 

Despite the evidence, the trial court granted Grandmother 2 visits a year, one in December and one in July, for four hours each, to be supervised by the children’s father and one neutral party.  KRS 405.021 gives trial courts authority to require grandparent visitation if “it determines that it is in the best interest of the child to do so.”  The statute imposes upon grandparent seeking visitation the burden of proving by clear and convincing evidence that such visitation is in the best interest of the children.

   

The Court of Appeals acknowledged the trial court’s effort to “preserve a thread in the torn fabric of this family,” but held that this was not a discretionary ruling.  The trial court was required to apply KRS 405.021 and determine by clear and convincing evidence whether visitation was affirmatively proven to be in the children’s best interest.  Applying that standard, the CA concluded the trial court erred as a matter of law in its conclusions and judgment and reversed the judgment.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

Cabinet for Health and Family Services v. L.J.P., M.J.P., and D.J.P: Grandparents’ Right to Intervene in Termination of Parental Rights and Adoption Proceedings

Cabinet for Health and Family Services v. L.J.P.,  M.J.P., and D.J.P, 2008-SC-000950-DGE  

Issue:  Grandparents’ Right to Intervene in Termination of Parental Rights and Adoption Proceedings

Published:   Reversing

County: KENTON

 

Cabinet appealed CA’s reversal of FC’s denial of paternal grandparents’ motion to intervene in termination of parental rights action, where CA held that the grandparents could intervene as a matter of right under CR 24.01.  SC held that, given that the proceeding before FC was for termination, and not adoption, grandparents' motion to intervene was correctly denied, and they had no statutory standing to proceed with an adoption.

 

FACTS:

Soon after Grandchild's birth, his birth parents lost custody of him in a dependency, neglect, and abuse action. Grandchild has since resided in foster care.  When Grandchild was about one, Cabinet filed a petition for involuntary termination of parental rights. About four months later, parents filed a petition to voluntarily terminate their parental rights, conditioned on Grandchild being placed for adoption with grandparents, and contemporaneously filed moved to intervene, claiming the filing of the Voluntary Termination Petition gave them standing to do so.  FC denied their motion to intervene, finding the voluntary termination petition to be invalid because the involuntary petition was filed first. CA found that grandparents could intervene as a matter of right based on the “elevated status” given to grandparents in custody determinations

 

ANALYSIS:

A. Timeliness

SC held that FC incorrectly believed that the effect of the Cabinet’s previously filed petition for involuntary termination was to cause the parents to lose the right to be free from state interference in deciding who shall have custody of Grandchild.  Thus, FC believed Voluntary Petition was untimely and could not give grandparents standing.  SC held that Involuntary Petition was merely pending as the parents’ rights were not affected until an order issued terminating their rights.  The fact that they did file their petition before their parental rights were terminated makes their voluntary petition timely.  This alone, however, did not give grandparents standing. 

 

B. The Substance of the Parents' Petition

While the parents clearly could voluntarily terminate their parental rights, even in an involuntary termination proceeding, the real question is whether given the status of their case, they could go further and consent to adoption in a voluntary termination proceeding.  Obtaining the consent of parents who retain their parental rights is but the first step of a consent adoption.  Pursuant to KRS 199 .470(3), grandparents could not petition to adopt Grandchild unless the Grandchild had been placed with them by the Cabinet or until he had resided with them for at least ninety (90) days immediately prior to the filing of the adoption petition.  In this case, Grandchild had never resided with Grandparents.  The 90 day residence requirement is a jurisdictional prerequisite so they could not adopt him at that time.  Further, SC found voluntary termination petition’s conditional language would have required FC to place Grandchild for adoption with Grandparents, which FC found to be an improper attempt to make an endrun around the requirements of the adoption statute. If the petition had been a proper petition for consent adoption, then Grandparents would have had to invoke FC's jurisdiction to proceed, and they could not meet the statutory grounds to do so. Nonparental relatives or potential custodians such as Grandparents are not mentioned or considered in the termination statutes, and thus it cannot be said that a statute confers an unconditional right to intervene.  Furthermore, to the extent that Grandparents' interest is in receiving custody post-termination, it would not be a "present substantial interest" but merely "an expectancy or contingent interest," and thus insufficient to warrant their intervention as a matter of right. FC is statutorily obligated, upon issuing an order terminating parental rights, to "vest care and custody of the child in such person, agency, or cabinet as FC believes best qualified." Thus, Grandparents would be entitled to custody only if the court finds they are the "best qualified" among all potential custodians, something which is purely speculative at this point, especially since parental rights have not been terminated.

 

CA reversed, and FC order reinstated.

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

 

 

Discretionary Review Granted in Harrison v. Leach

Here is our digest and link to the Kentucky Court of Appeals opinion which addresses the standing of a third party who is not a defacto custodian following enactment of the UCCJEA.

Leach v. Harrison, Ky COA, Standing Of Non-Parents (Not Defacto Custodians)To Petiton For Custody

Leach v. Harrison, __ S.W.3d __ (Ky. App. 2009)

    More than eight investigations were opened regarding the mother’s abuse and neglect of her three minor children, including excessive corporal punishment.  Due to the ongoing investigations, all three of the children were eventually placed with the maternal grandparents on a temporary basis. The maternal grandparents filed for permanent sole custody of the children.  DRC recommended that father have custody of the children, the grandparents have visitation, and that mother be allowed to regain her visitation rights.  The trial court rejected the DRC’s recommendations and granted permanent sole custody to the grandparents and allowed the father unsupervised visitation.  Father appealed.  The mother of the children stipulated to neglect in the trial court and did not appeal. 

    COA never reached the merits of the case.  It vacated and remanded based on lack of jurisdiction.  Both parties stipulated before the hearing that the grandparents were not de facto custodians.  The right of a non-parent, other than a de facto custodian, to have standing to petition for custody used to be set forth in KRS 403.420, which was part of the Uniform Child Custody Jurisdiction Act (UCCJA).  The UCCJA was repealed in 2004 and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  No provision or statute currently in effect allows a third party, who is not a de facto custodian, to have standing to petition for custody.  Without jurisdiction, the Court had no power to do anything.  COA ordered the children to remain in the care of the grandparents pursuant to a previous order.  It also noted that if the children remained in the temporary custody of the grandparents for a continuous year following the conclusion of the proceedings, the grandparents would have standing as de facto custodians.  

    Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates   

Temple v. Temple, Child Custody, Ky COA

Temple v. Temple, ____S.W.3d____(Ky. App. 2009)

Karen is the adopted daughter of Cheryl and Phillip.  At the time of the adoption, Karen was classified as severely emotionally disturbed.  When the parties divorced, Karen remained with Cheryl.  In 2003, at seventeen years old, Karen had a child, N.T.  Karen and N.T. lived with Cheryl for the first twenty months of the child’s life and Karen relied heavily on Cheryl for the support and care of N.T.  Karen later moved into an apartment with N.T., but still relied heavily on Cheryl.  Karen was investigated for neglect on two occasions, but the allegations were not substantiated.  However, social workers testified that N.T. thrived better with Cheryl than with Karen.  In 2007 Karen gave Cheryl written permission to seek medical treatment for N.T. when necessary.  She also agreed that N.T. should live with Cheryl.  In November 2007 Phillip took N.T. for a visit and did not return him.  Cheryl petitioned the court to declare her a de facto custodian and grant her permanent custody, or in the alternative grant her joint custody.  Karen filed a written response, but did not seek custody for herself.  Instead, she argued that her father should have custody. 

    After a hearing, the DRC rendered findings and conclusions of law that were adopted by the trial court.  The court found that Cheryl was not a de facto custodian, since she failed to meet the one year time requirement.  However, the court found that Karen waived her superior right to custody and therefore granted Cheryl sole custody of N.T.  Phillip and Karen were granted shared visitation with N.T. one weekend a month.  Karen was ordered to pay Cheryl $60 per month child support.  Karen appealed. 

    COA affirmed, finding that Karen had waived her superior right to custody by failing to seek custody for herself.  Karen admitted that she did not want custody of her son.  She stated that if she were awarded custody she would give N.T. to her father.  Her testimony was equivalent to an express waiver.    

    Digested bySarah Jost Nielsen, Diana L. Skaggs + Associates

Ky Supreme Court Minutes Yesterday

No family law to be published opinions were released, but discretionary review was granted in Commonwealth, Cabinet for Health and Family Services, v. L.J.P., et al. A digest of the court of appeals opinion and link to the decision is here. Briefing will be expedited and oral arguments will be held August 12, 2009 at 11 a.m.

J.G. v. J.C., Ky COA, Defacto Custodian

J.G. v. J. C. , _ S.W.3d _ (Ky. App. 2009), 2008-CA-1023

Parents appeal the judgment holding that the grandparents are the de facto custodians of S.G. The parents have three other children, all of whom had been previously removed. Due to previous issues, social services placed S.G. with the grandparents three days after she was born. A couple of weeks later the parents filed a motion to terminate the temporary custody order and have S.G. returned to their care. The trial court denied the motion. The parents then participated with social services to try to regain custody of S.G. After about eleven months, the grandparents filed a petition for declaration of de facto custodian and permanent custody. After numerous hearings, the DRC recommended that the grandparents be deemed the de facto custodians of the child and be awarded permanent custody. The trial court adopted the DRC recommendations. The parents filed exceptions to the findings, a motion to alter the court’s decision, and a motion for further findings of fact. The trial court denied the motions and this appeal followed.

COA found that the grandparents did not meet the statutory requirements for being declared the child’s de facto custodians. COA reversed and remanded, ordering the trial court to make further findings of fact. First, the trial court must determine whether the grandparents met the one year time requirement pursuant to KRS 403.270, especially in light of the tolling requirement of KRS 403.270(1)(a). The time between when the parents filed their motion to terminate the temporary custody order and when the court ruled on that motion does not count toward the de facto custodian time requirement. Next, the trial court must make the findings requested by the parents in a previous motion. Finally, the COA noted that a married couple is considered a single unit for the purpose of de facto custodianship, and therefore a couple may be deemed de facto custodians as opposed to a single individual.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

L.J.P. v. Cabinet for Health and Family Services, Ky COA, Grandparent Rights In Termination Action

L.J.P. v. Cabinet for Health and Family Services, _ S.W.3d _ (Ky. App. 2008) 2008 WL 4998635

Paternal grandparents appealed trial court order denying their motion to intervene and request for custody of their grandchild in an involuntary termination of parental rights action. The issue on appeal was whether the grandparents have a right under CR 24.01 to intervene in a termination of parental rights action. COA found that grandparents have a “legally cognizable interest” in their grandchildren under Kentucky law. KRS 625.100 recognizes that the child’s relatives have an elevated status when the court awards custody of the child post-termination. It is difficult to understand how grandparents will assert their interest as potential custodians if intervention is not allowed. In addition, grandparent visitation survives termination proceedings if established prior to termination and in the best interests of the child. Pursuant to Baker v. Webb, grandparents have a right to intervene in adoption proceedings. COA held that “[t]he right of grandparents to intervene in an adoption proceeding, recognized in Baker, would be impaired or impeded if the grandparents were denied the right to intervene in the custody determination subsequent to a termination proceeding because the stability of the child as well as the child-grandparent relationship, factors to be considered in a subsequent adoption proceeding, may likely be adversely affected by the custody order that follows termination but precedes adoption.” Therefore, grandparents have a right to intervene in the custody determination under KRS 625.100. REVERSED AND REMANDED
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Grant v. Lynn, Ky COA, Grandparent Visitation, Pro Se Litigant

GRANT V. LYNN
2007-CA-002193
PUBLISHED: AFFIRMING
PANEL: NICKELL PRESIDING; MOORE, STUMBO CONCUR
COUNTY: CHRISTIAN
DATE RENDERED: 10/17/2008

Dad, pro se, appealed TC orders awarding grandparent visitation to Maternal Grandmother with Dad’s children, based on the best interests of the children. Mother is deceased.

The case had been at TC level on remand from last CA opinion in the case, in which CA vacated and remanded TC’s judgment denying visitation because Maternal Grandmother failed to prove the children would be harmed if they could not visit her under the standard of Scott v. Scott. CA remanded because the “harm” standard of Scott had been replaced with the “best interests of the child” standard of Vibbert v. Vibbert. On remand, TC found that it would be in children’s best interests to see Maternal Grandmother one half day each month and to speak with her on the telephone one half hour each week.

In response to Dad’s first argument that as a fit custodial parent, he should be permitted to raise his children without contact with or interference by his former wife’s family, CA stated that there was no argument as to Dad’s fitness as a parent; TC simply found it would be in the best interests of the children to have contact with the family of their late mother. CA found TC’s findings were supported by substantial evidence and the visitation terms were sufficiently tailored to preserve Dad’s desire to raise his children as he sees fit but to also allow the children to renew contact with their late mother’s family.

Dad next argued that KRS 405.021, which authorizes a court to award visitation to a grandparent when it is in the child’s best interest to do so, is unconstitutional. CA found that Dad “combed dozens of legal opinions and strung together a jumble of sentences that do not warrant striking down a statute that has previously withstood constitutional muster, especially when Dad offer[ed] no explanation as to how KRS 405.021 supposedly violates any of the quoted constitutional provisions. While we are willing to overlook inartful pleading by a pro se litigant, we are not willing to create an argument for him. A shotgun blast of random legal jargon and indiscriminate reference to a hodgepodge of legal authority does not a focused or articulate argument make, and such abusive practice misses any reasonable appellate mark or purpose.”
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

McCary v. Mitchell, Ky COA, Guardianship Custody Between Non-parents

McCary et al. v. Mitchell, et al. –S.W.3d—(Ky.App. 2008), 2007 CA-000322-DG

The Mitchells, maternal aunt and uncle of B.E.M., petitioned the court to be appointed guardians and conservators of the estate of their niece. B.E.M.’s mother was murdered by the child’s father, and the child was currently living with her paternal aunt and uncle, the McCarys. The district court ordered that the Mitchells be appointed the co-guardians and co-conservators of the estate of the child, and that the Mitchells take physical possession of the child after the completion of the 2005-06 school year. The Circuit Court affirmed. The Court of Appeals granted discretionary review.
The Court first found that the KRS 403.270 de facto custodian provision does not apply to guardianship proceedings under KRS 387.032. Therefore, the McCarys did not have a superior right to the child. Both parties were to be given equal consideration. The Court then found that the district court did not abuse its discretion in finding that the child’s best interest was served by appointing the Mitchells as guardians. There was sufficient evidence to support the court’s finding.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

BEARDEN V. MAULDIN, CHILD CUSTODY

BEARDEN V. MAULDIN
2007-CA-001888
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: BUCKINGHAM PRESIDING; LAMBERT AND MOORE CONCUR
COUNTY: JEFFERSON

Mom appealed from TC’s order denying her motion to set aside TC's judgment awarding permanent custody of Daughter to Paternal Grandparents. Mom further appealed from TC’s order denying her motion for visitation, where TC found that it lacked jurisdiction to consider visitation.

FACTS:
Paternal Grandparents filed a petition for custody and an emergency motion for temporary custody of Daughter four days after birth of Daughter due to the abuse of alcohol by and mutual domestic violence between Mom and Dad. TC entered temporary custody order that day and referred the matter to CFC for investigation. CFC subsequently filed DNA action a few days later, and the following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. TC awarded temporary custody to Paternal Grandparents in the custody action and reaffirmed that decision in the dependency action. Mom and Dad were allowed supervised visitation and were ordered to participate in a course of rehabilitative treatment and testing.

Paternal Grandparents filed an amended petition for custody seeking permanent custody of Daughter, which was served on Mom and Dad. Neither filed a response, and Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed anything to object to the entry of the order granting permanent custody of Daughter to Paternal Grandparents. TC entered an order granting Paternal Grandparents permanent custody. Paternal Grandparents then initiated proceedings in Alabama, their home state, to formally adopt Daughter. Those proceedings were still pending when this Opinion was rendered.

Almost one year after the default hearing, Mom filed a motion to set aside the default custody decree entered against her pursuant to CR 60.02(d) and (f). In support of her motion, Mom filed affidavits signed by herself and Dad. Dad's affidavit indicated that he told Mom if she intervened in the custody case, she would suffer further bodily harm, including death. Dad also stated that he had access to the only vehicle and telephone and that he prevented Mom from using either during this period. Further, Dad explained that Paternal Grandparents colluded with him to prevent Mom from protecting herself in any way during the custody case. Mom's affidavit listed the same facts but also admitted that she and Dad were alcoholics but that she was presently clean and sober.

TC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents and had not documented collusion occurring between Dad and Paternal Grandparents to prevent her from attending or participating in the custody proceedings. TC further found that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents.

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02. TC denied Mom's motion to alter, amend or vacate, but stated no grounds for the denial, and declined to exercise jurisdiction concerning the visitation issue, finding that Kentucky was no longer the home state of the child. This appeal followed.

Analysis:
Mom argued that TC improperly denied her 60.02 motion without an evidentiary hearing. CA held that a 60.02 movant is entitled to an evidentiary hearing if she affirmatively alleges facts, which if true, justify vacating the judgment and further alleges special circumstances that justify 60.02 relief. CA found that the contents of the affidavits in support of Mom’s motion are clear examples of Mom's allegations of fraud on the proceedings and collusion on the part of Dad and Paternal Grandparents and thus are allegations of facts, which if true, would justify vacating the judgment under CR 60.02(f) and possibly (d). CA recognized that affidavits can be a useful tool in the service of judicial economy, but on such a critical matter as fraud and collusion involving the custody of a child they are simply insufficient to form the basis of a decision. CA found that TC should have held an evidentiary hearing to allow Mom to present her claims through testimony rather than basing its decision on the affidavits presented by Mom.

Mom also argued that TC improperly found that it lacked jurisdiction to modify her visitation rights. Paternal Grandparents argued that TC properly declined to exercise jurisdiction over the issue of modification of Mom’s visitation rights pursuant to KRS 403.824. CA stated that under KRS 403.824, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met, and that since Kentucky’s adoption of the UCCJEA, continuing jurisdiction trumps home state jurisdiction. In the instant case, Kentucky had original jurisdiction over custody. Despite the fact that Daughter had acquired a new home state, Kentucky is still the home state of Daughter’s mother, Mom, who is alleging that Paternal Grandparents obtained custody by fraud and then transported Daughter to their home state, which subsequently asserted jurisdiction. Accordingly, despite the Alabama court’s finding that Kentucky was no longer the home state of Daughter, Mom, a contestant, still resided in Kentucky and Kentucky was the initial state to make the custody determination. CA found that Kentucky therefore has continuing jurisdiction under the UCCJEA to determine visitation.

Vacated and remanded TC’s order denying CR 60.02 motion with instruction that TC conduct an evidentiary hearing, and reversed the portion of TC’s order indicating that it does not have exclusive and continuing jurisdiction and remand for proceedings consistent with Mom’s motion for visitation.
Digested by Michelle Eisenmenger Mapes, DIana L. Skaggs + Associates.

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.