Family situations are increasingly complicated in our society. One common situation that occurs is when, because of a variety of situations, grandparents are not allowed to visit their grandchildren.
Grandparents in this situation often feel like they have no options and no ability to change the situation. We often hear people say “grandparents have no rights in Kentucky.” While it is true that grandparents do not have equal rights as parents, they have been provided some protections by the Kentucky Legislature, as long as they can meet certain criteria. KRS 405.021, Reasonable Visitation Rights to Grandparents, states that grandparents may petition a Circuit
Court for visitation rights, including if the parent of the grandchild is deceased. The petition must be filed in the county in which the child resides, and the parent through whom the grandparent is related to the grandchild must not have had their parental rights terminated, either voluntarily or involuntarily.
As with any court case, petitioning the Court for something does not guarantee a particular result. A grandparent who is seeking court ordered visitation must prove that the visitation is in the child’s best interest. What “best interest” means is not specified in the statute, but the case Vibbert v. Vibbert has given specific criteria for Circuit Courts to look at when determining whether to grant a petition for grandparent visitation. A court must examine the following factors before granting grandparent visitation:
First, the nature and stability of the relationship between the child and grandparent will be examined, meaning the court will examine whether the grandparent and child are close to one another. Second, the court will look at the amount of time spent together, specifically the amount of time since the grandparent and child have seen one another, and how much time they spent together. Next, the court will look at the potential detriments and benefits to the child from granting visitation, meaning they will look to see if there is anything that could harm the child by either granting or denying the visitation. Then, the effect visitation would have on the child’s relationship with the parents will be determined, which means that the court will take into consideration any negative behavior from the grandparents towards the parents and whether that could be transmitted to the child. After that, the court will look at the physical and emotional health of all the adults involved, the stability of the child’s living and school arrangements, and the preferences of the child.
The Kentucky Supreme Court added more factors in Walker v. Blair. The court must also look at the motivation of the adults involved, specifically if any of the adults have a vindictive motivation. The grandparent must also show that visitation with the grandchild is in their best interest by preponderance of the evidence, which is a heightened, but not the highest standard.
This standard for “best interest of the child” is much more difficult to meet than in a typical custody case between parents. Parents are given wide discretion by all courts to make appropriate decisions for their children, so a grandparent has to use the standards listed above to essentially show the parent is not making the correct decision.
While it is difficult to establish grandparent visitation, it is not impossible. If you are a grandparent who is concerned about their rights, and who believes they would be able to meet the criteria set forth by the courts, you should contact a qualified attorney to discuss your options.