A question I often get and see on the web on various social media and legal pages is whether grandparents have rights to visitation in Kentucky. I often see many people commenting that there are no rights for grandparents, with the occasional mix of people stating that they do. It seems there is a great deal of confusion or misunderstanding of the law as it relates to grandparent visitation. I will give a general overview of the state of law in Kentucky here.
Kentucky has a specific statute dealing with Grandparent visitation, KRS 405.021, which is entitled “Reasonable visitation rights to grandparents.” The statute sets out that the “Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so.” So, the quick answer is yes, there is a possibility that a grandparent can get visitation with the grandchildren, that may even survive termination of the parents’ rights if granted prior to the termination. However, some United States Supreme Court law and recent Kentucky law dictates that we must not stop here.
In Troxel v. Granville, the United States Supreme Court set out that a paret enjoys superior constitutionally protected rights over non-parents. In Walker v. Blair, the Kentucky Courts interpreted the Kentucky law to require that Kentucky Courts must give preference to a fit parent’s wishes about non-parents visiting with their children. However, the Court set out guidelines for the Court to consider when awarding grandparent visitation wherein the parent’s wishes may be overcome that have been labeled the “modified best interest standard.”
The Court must first presume that a fit parent is making the best decision for their children, and also, that the parent is fit until proven otherwise. The grandparent must then show by clear and convincing evidence that the parent is wrong, and that visitation is in the best interest of the child, considering these factors:
1.) the nature and stability of the relationship between the child and the grandparent seeking visitation;
2) the amount of time the grandparent and child spent together;
3) the potential detriments and benefits to the child from granting visitation;
4) the effect granting visitation would have on the child's relationship with the parents;
5) the physical and emotional health of all the adults involved, parents and grandparents alike;
6) the stability of the child's living and schooling arrangements; and
7) the wishes and preferences of the child.
8) the motivation of the adults participating in the grandparent visitation proceeding.
If the grandparent can show that their relationship is healthy and positive, they have had consistent time together, that is not detrimental to other family relationships, along with the other remaining factors set out above, the Court may award grandparent visitation. In fact, Courts have granted grandparent visitation in many cases, as it is often important to the children to maintain a relationship with the grandparent.
If you are a grandparent seeking visitation with a grandchild in Kentucky, it is important that you hire legal counsel that is experienced and versed in the law as it relates to grandparents rights in Kentucky. Hopefully, this puts to bed the notion that grandparents have no rights, when in fact they do have recourse to assert rights and maintain relationships with grandchildren.