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Friday, October 26, 2012

BREAKING NEWS: KENTUCKY SUPREME COURT WISELY LIMITS GRANDPARENTS' VISITATION RIGHTS WHERE CHILD'S PARENTS OBJECT; OBJECTION NOW PRESUMED TO BE IN "CHILD'S BEST INTEREST" REBUTTABLE ONLY BY "CLEAR AND CONVINCING PROOF" TO THE CONTRARY.

Kentucky Supreme Court weakens grandparents' rights to see grandchildren

The Kentucky Supreme Court has made it harder for grandparents to win visitation with their grandchildren when the child’s parents object.

In a 6-1 ruling, the state’s high court ruled Thursday that parents who oppose giving a grandparent visitation must be presumed to be acting in the child’s best interests.

The court did not strike down Ken­tuc­ky’s 1984 grandparent visitation law but said a grandparent must present “clear and convincing” evidence to win the right to visit a grandchild over a parent’s objection.

“Kentucky courts cannot presume that grandparents and grandchildren will always benefit from contact with each other,” the court ruled. “If the only proof that a grandparent can present is that they spent time with the child and attended holidays and special occasions, this alone cannot overcome the presumption that the parent is acting in the child’s best interest.”

Writing for the court, Chief Justice John D. Minton Jr., said “the grandparent must show something more — that the grandparent and child shared such a close bond that to sever contact would cause distress to the child.”

Louisville family lawyers not involved in the case said the ruling will make it extremely hard for grandparents to win court-ordered visitation rights over a parent’s objection.

“That is an awful high legal standard,” said former Jefferson Family Court Judge Louis Waterman, adding that it gives “near-total authority” to parents.

The court reversed an order from Jefferson Family Court Judge Dolly Wisman Berry, giving visitation to Donna S. Blair for her grandson B.B., who is now 8, over the objection of his mother, Michelle L. Walker.

Blair said she had baby sat for the boy since he was born, took him to the zoo and the movies, gave him bubble baths and hosted his birthday parties.

But Walker said that, after the boy’s father killed himself, she feared for his safety and emotional well-being, because Donna Blair and her former husband blamed Walker for the suicide.

The court ordered Berry to conduct a new hearing, following the rules set down in its 20-page opinion.

The court said grandparents may win court-ordered visitation if they can show that the child would be harmed by denying it or where the grandparent and child lived in the same household for some time or the grandparent regularly baby sat the child.

The court directed judges to consider eight factors, including the nature and stability of the relationship between the child and the grandparent; the amount of time they had spent together; the effect that granting visitation would have on the child’s relationship with the parents; and the wishes and preferences of the child.

In a dissenting opinion, Justice Will T. Scott said he would have required grandparents to rebut the presumption in favor of parents based on a preponderance of the evidence, which is an easier burden to meet.

“It is beyond dispute that there is a societal presumption that it is usually healthier when a child has a loving relationship with a loving grandparent,” wrote Scott, who is seeking re-election against former Court of Appeals Judge Janet Stumbo.

The case marked the first time in 20 years that the state Supreme Court had tackled the issue, and the first time since the U.S. Supreme Court held in 2000 that parents have a constitutionally protected interest in raising their children without government interference.

Upholding the right of grandparents in a 1992 case from Boyle County, the state Supreme Court put parents and grandparents on equal footing in assessing the best interest of the child.

It also cited the benefit of visitation to the grandparent, who “can be invigorated by exposure to youth” and “avoid the loneliness that is so often a part of an aging parent’s life.”

But the court on Thursday said it was compelled by the U.S. Supreme Court’s decision to reverse its Boyle County ruling, which “is no longer good law.”

“So long as a parent is fit, there will normally be no reason for the state to inject itself in the private realm of the family,” the court said.

Blair’s lawyer, Denise Helline, said she found it troubling that "they set the bar too high." Walker’s lawyer, Mitchell Charney, said he hadn’t read the decision and couldn’t immediately comment.

No one tracks how many motions for grandparents’ visitation are filed in Kentucky, but Jefferson Family Court Judge Stephen George estimated in August that they are filed in about 5 percent of divorce and custody cases.

Waterman predicted that fewer will be filed now because attorneys will advise grandparents that it is less likely they will prevail.

Family lawyer Diana Skaggs, publisher of the blog “Divorce Law Journal,” who had predicted that if the court ruled Kentucky’s grandparent’s law unconstitutional it would mean “grandparents have no rights,” said she was glad the court didn’t do that.

But she agreed that the ruling means grandparents will have a tougher time getting courts to order visitation. “A loving relationship alone now is not enough.”

Editor's note:YOU CAN READ THE OPINION HERE (NOTE: REQUIRES PDF).

EDITOR'S COMMENT:I FIND IT PARTICULARLY INTERESTING THAT CHIEF JUSTICE JOHN MINTON, A DEMOCRAT, DISPLAYED REMARKABLE CONSERVATIVE PRINCIPLES HERE, WHILE JUSTICE WILL SCOTT, A REPUBLICAN, WENT THE OPPOSITE WAY DELIGHTING LIBERALS BY HIS DISSENT.

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