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From GrandparentVisitationBlog.com by Grant D. Griffiths, Attorney at Law
February 06, 2007
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?
Analysis:
No. Pursuant to KRS 405.021, grandparents have the right to petition a
trial court for visitation with their grandchildren; however, if the
parents object, the grandparents must prove, by clear and convincing
evidence, that such visitation would be in the grandchildren’s best
interest, considering such factors as the nature and stability of the
relationship between the child and the grandparent seeking visitation;
the amount of time spent together; the potential detriments and
benefits to the child from granting visitation; the effect granting
visitation would have on the child’s relationship with the parents; the
physical and emotional health of all the adults involved, parents and
grandparents alike; the stability of the child’s living and schooling
arrangements; the wishes and preferences of the child. The grandparent
seeking visitation must prove, by clear and convincing evidence, that
the requested visitation is in the best interest of the child. Thus,
the grandparents must file a Petition for visitation in order to
receive it, including additional visitation, and the trial court must
make a finding that such visitation is in the child’s best interest.
Issue
Two: May the court order that a non-custodian must approve changes in a
parenting time schedule, especially where the non-custodian is a party
to the action due to his visitation rights?
Analysis: No. Such
an arrangement violates the parents’ rights under Troxel v. Granville,
wherein the United States Supreme Court stated that ‘it cannot now be
doubted that the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions concerning
the care, custody, and control of their children.’ Even though a parent
has a fundamental and constitutionally protected right to make
decisions regarding his or her child, that right is not unfettered, as
the trial court has the power to set and modify custody and may remove
a child from a parent’s custody where supported by the law. This does
not allow the Court, however, to grant any decision-making ability to
anyone other than custodians of the children.
Source for Post: LouisvilleDivorce.
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