In Kentucky, "reasonable visitation rights" may be awarded to either paternal or maternal grandparents if the court determines that it is in the best interests of the child to do so. Visitation rights can be awarded even if situations in which it is usual in other states for them to be denied.
- Kentucky allows grandparents to sue for visitation even if grandchildren live in an intact family.
- Grandparent visitation rights may survive the termination of parental rights belonging to the grandparent's son or daughter, who is the father or mother of the child.
In addition, liberal visitation may be awarded to a grandparent whose child is deceased if that grandparent supplies child support for a grandchild. These visitation rights can be the equivalent of a non-custodial parent's.
Adoption ends grandparent visitation rights unless the adopting party is the stepparent and the grandparent's child has not suffered termination of parental rights.
In the case of parents who are divorced, the grandparents must file papers in the county where the divorce was ordered. If they are not divorced, papers should be filed in the county where the grandchild lives.
Kentucky's grandparent visitation statute has not be revised since 1996, which is somewhat unusual. Case law has, however, had an impact upon how the statute is interpreted and administered.
Challenges in Court
Constitutionality is a big issue in grandparent visitation. States that are too generous with grandparents' right are often challenged in court.
The basis for such challenges is the legal principle that parents govern the care, custody and control of their children.
Kentucky's statute was first challenged as unconstitutional in 1989 in King v. King. The Supreme Court of Kentucky found it constitutional.
In 2000 the U.S. Supreme Court weighed in on the issue of grandparent visitation.
In Troxel v. Granville, a Washington State case, the court re-emphasized the rights of parents, stating "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." Thus, the court decided, "fit parents" are presumed to make good parenting decisions, even when deciding to sever relationships with grandparents. The burden of proof was thus shifted to grandparents to prove that the situation warrants overruling the parents' decision.
Following this Supreme Court decision, most state statutes about grandparent visitation faced constitutionality challenges. Kentucky was no exception.
In the 2002 case of Scott v. Scott, an appeals court overturned a decision awarding visitation to grandparents, saying that grandparents must "show by clear and convincing evidence that harm to their grandchild will result" if visitation is denied. This so-called harm standard is a difficult standard for grandparents to meet.
Two Influential Cases
The pendulum swung back to a certain extent in 2004. In Vibbert v. Vibbert, the Kentucky appeals court found that Troxel v. Granville did not require a finding of harm.
It returned to the older "best interests" standard, while modifying it somewhat. The court found that even fit parents can make decisions that are not in the best interests of the child. The court then outlined the factors to be considered in determining the best interests. These "Vibbert factors" include the following:
- The nature and stability of the relationship between the child and the grandparent
- The amount of time spent together
- The potential detriments and benefits to the child from granting visitation
- The effect visitation would have on the child's relationship with the parents
- The physical and emotional health of all the adults involved
- The stability of the child's living and schooling arrangements
- The preferences of the child.
The justices in the Vibbert case also expressed a concern that parents could withhold visitation out of vindictiveness.
Eventually the Kentucky Supreme Court addressed this concern, in the 2012 case of Walker v. Blair:
Walker v. Blair is important for several reasons. First, it marked the first time since King v. King in 1989 that the Kentucky Supreme Court had adjudicated a grandparent visitation case. Second, it upheld the decision in the Vibbert case and entrenched the Vibbert factors firmly in case law. Third, it added one more determinant to the Vibbert factors: the motivation of the adults involved. A parent or a grandparent who is found to be acting out of "spite or vindictiveness" can be ruled against. Fourth, the court found that the "clear and convincing evidence" standard was unnecessarily high. It recommended instead a "preponderance of evidence" standard.
Largely because of Vibbert v. Vibbert and Walker v. Blair, most authorities classify Kentucky as a permissive state when it comes to grandparent visitation.