RENDERED: MARCH 14, 2019 TO BE PUBLISHED
2018-SC-000390-DGE
DAVID MORTON AND DARLENE MORTON APPELLANTS
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2017-CA-001305-MR MONTGOMERY CIRCUIT COURT NO. 12-CI-00170
BRUCE TIPTON APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
In this grandparent visitation case, David and Darlene Morton, custodial
maternal grandfather and step-grandmother, challenge the trial court’s award
of limited grandparent visitation to Bruce Tipton, paternal grandfather. The
Mortons maintain the trial court failed to apply the Walker “best interest of the
child” factors and further failed to make the grandparent visitation
determination based upon clear and convincing evidence, the standard
enunciated in Walker. Although the trial court did not cite Walker v. Blair, 382
S.W.3d 862, 871 (Ky. 2012), we conclude the findings of fact reflect proper
consideration and application of the best interest factors. As for the standard
of proof, the trial court properly applied the preponderance of the evidence
standard because the higher clear and convincing evidence standard only
applies in the event of a grandparent visitation dispute involving a custodial parent. Accordingly, we affirm the Court of Appeals.
FACTUAL1 AND PROCEDURAL BACKGROUND
Bruce Tipton (Tipton) is the paternal grandfather of the minor children
CT, born March 8, 2007, and KT, born July 31, 2009. Following their births,
they and their parents, Brian Tipton and Roxanna Swartz, resided with Tipton
for a period of time. When not residing with Tipton, the four visited Tipton
almost eveiy day until CT and KT were approximately two (2) years and nine (9)
months and five (5) months of age, respectively. Both Brian and Roxanna have
histories of drug abuse, and they engaged in domestic violence in the presence
of their children.
In January 2010, the Cabinet for Health and Family Services (the
Cabinet) filed petitions alleging that CT and KT were neglected by both parents
because of the parents’ drug abuse and that the family was not stable because
they were dependent upon others to provide them housing. CT and KT were
placed with David and Darlene Morton, maternal grandfather and step-
grandmother. In March 2011, the Mortons were granted permanent custody of
CT and KT and, by the same order, the Powell Circuit Family Court included a
provision for Tipton to have supervised visitation with CT and KT at the
Mortons’ discretion. At the time of this decision, as later found by the
Montgomery Circuit Court, the Powell Circuit Family Court had held multiple
hearings with the parties, had received reports and Tipton’s home evaluation
1 The trial court’s findings of facts comprised approximately 30 pages of its order.
2 from the Cabinet,2 and was in the best position to evaluate whether it was in
CT and KT’s best interest to have visitation with Tipton. In June 2012,
because the Mortons moved their residence, the case was transferred to
Montgomery District Court.
From April 2010 and later pursuant to the March 2011 order, Tipton
visited with CT and KT for one (1) hour per week, either with or without the
children’s father, Brian. The visits took place in Montgomery County at a
restaurant, a park, or the Mortons’ home. At some point, Tipton asked the
Mortons for increased visitation, which they denied. In October 2012, Tipton
filed this action in Montgomery Circuit Court, specifically petitioning for
“grandparent timesharing.”
The Mortons requested that a specific timesharing schedule be denied
and, as part of their objection, noted that Tipton’s showing the young girls a
dead pig carcass had disturbed them. Tipton testified that the pig, shown at
the girls’ request was not bloody, having been slaughtered for food a couple of
days before. Darlene described the incident as causing great trauma to the
children, who became fearful of Tipton from that point forward.3
2 Tipton was considered for custodial placement at the request of the biological father, Brian Tipton. The Cabinet performed two evaluations, one for potential custodial placement and one relative to the visitation request. 3 Notably, as to David Morton, the biological maternal grandfather, the trial court found that he failed to be present and/or participate in meetings with the Guardian ad Litem (GAL) and also failed to either appear and/or participate in court proceedings. Darlene testified that he works 10 hours per day through the week and works all weekend on the family farm.
3 While the Cabinet conducted an evaluation of Tipton’s home, the
Montgomery Circuit Court ordered that Tipton have continued visitation with
the children, setting a schedule for one (1) hour biweekly. The Cabinet’s
evaluation concluded that Tipton appears to love CT and KT; he has
maintained ongoing contact and would like more contact with them; and he
has the support of his church family, friends, and family. The Cabinet’s
concerns stemmed from some safety issues in the home, past reports of
Tipton’s spanking a significant other’s minor child in 1989, and Brian’s
presence in the home given his significant criminal history. Following
evaluation, the Cabinet did not recommend custodial placement with Tipton.
When the Mortons again objected to Tipton’s request for increased
visitation, they stated that Tipton’s visitation with CT and KT had become an
emotional strain. The trial court nevertheless granted Tipton weekly visits with
the children, but, at the Mortons’ request, appointed a GAL. Upon completing
her investigation, the GAL did not recommend unsupervised visitation with
Tipton at that time primarily due to CT and KT’s uneasiness with him. The
GAL recommended that until the children became more comfortable with
Tipton, visitation be less frequent and in the least distracting environment for
the children. Based upon the GAL’s recommendation, the court ordered that
CT and KT attend counseling.4 Tipton maintained telephone communication
and over the course of time he attended individual sessions with the children’s
4 CT was diagnosed with Post-Traumatic Stress Disorder attributable to a number of factors in her chaotic life with her parents.
4 therapist and discussed ways to appropriately communicate with children the
ages of CT and KT.
In October 2014, with the children showing a lack of progress after
fourteen months of therapy, the trial court ordered the children to be assessed
by a therapist specializing in trauma. In November 2014, while in a session
with her usual counselor, CT, age 7, disclosed that when she was around age
4, Tipton touched her while helping her wipe after going to the bathroom and
that the touch felt inappropriate. The counselor reported this to the Cabinet
and Darlene Morton filed an emergency protective order on behalf of CT and
KT. The trauma therapist’s report was received in December; CT discussed
various things which made her feel anxious or sad, but there was no mention
of the alleged touching by Tipton.
At Tipton’s request due to the pending investigation of CT’s allegations of
inappropriate touching, the trial court suspended Tipton’s contact with the
children in a January 2015 order. In July, after the Kentucky State Police had
completed its investigation into this alleged criminal act and indicated no
charges would be filed, Tipton asked for reinstatement of his timesharing with
CT and KT. This motion led to a final hearing in November 2015 at which
Tipton; Kristy Smith, Tipton’s daughter who has twins near the age of CT; and
Scott Rogers, Tipton’s pastor, testified on his behalf. Darlene Morton; Michelle
Felty, the social worker for the Cabinet; and Amy Smith, CT and KT’s
counselor, testified on the Mortons’ behalf. Amy Smith testified that she
recommended that CT have no contact with Tipton. Felty’s and the trauma
5 therapist’s reports were admitted into evidence, along with Tipton’s photo of his
other granddaughters swinging on his front porch. The trial court took the
matter under advisement but additionally ordered that family visits take place
in Kristy Smith’s home with Kristy, her two daughters, CT and KT, and Darlene
Morton present, the intention being to help CT and KT feel comfortable around
the paternal side of the family in anticipation of Tipton being incorporated into
future family visits, if appropriate.
In February 2016, the EPO against Tipton was dismissed. The trial court
found that there was no evidence that the alleged inappropriate touching was
anything beyond that which occurred incidentally while Tipton helped wipe CT
after she used the bathroom and was not done for sexual gratification.
In June 2016, observing that the family visits at his daughter’s home had
reportedly gone well, Tipton requested that his visitation with CT and KT be
reinstated and that he be incorporated into the family visits. The Mortons
opposed the motion. In July, the trial court granted Tipton visits at his
daughter’s home with the established family group. Afterward, the Mortons
renewed a motion for a final order, stating the visits had not gone well. The
trial court scheduled hearings in October and December to hear from others
present at the visits. Kristy Smith, the children’s aunt, testified that the two
visits had gone well. Shirley Bowen, Darlene’s sister, testified that the visit “did
not go badly.” No one testified or otherwise reported that either CT or KT was
traumatized by these visits, acted out before or following these visits, or needed
to return to counseling as a result of the visits.
6 On July 7, 2017, the trial court entered its final order consisting of
approximately 30 pages of detailed findings of fact, ultimately concluding it is
in the best interest of the children to be allowed to continue a relationship with
Tipton through occasional supervised visitation. The trial court concluded that
in this case, grandparent visitation rights do not interfere with the
constitutional rights of the biological parents given that the parents do not
have custody, do not have a set visitation schedule, and, indeed, their
whereabouts are unknown. Tipton’s visitation was limited to three (3) times
per year and included the following restrictions: the visits are to occur at Kristy
Smith’s home, under her supervision, with her two daughters present; and
Darlene Morton is to be present until CT feels comfortable enough for her to
leave.
On appeal, the Court of Appeals concluded that the trial court properly
applied the preponderance of the evidence standard and appropriately
considered the relevant Walker factors. With those conclusions, the appellate
court held that the trial court did not abuse its discretion in granting Tipton
the very limited visitation with CT and KT as outlined. This Court granted
discretionary review.
ANALYSIS
The Mortons insist that the circuit court erred by not applying the
Walker best interest factors and by not requiring Tipton to prove by clear and
convincing evidence that visitation with him was in his grandchildren’s best
interests. Tipton counters that the circuit court actually considered the Walker
7 factors and that preponderance of the evidence is the appropriate standard of
proof when a circuit court addresses a grandparent’s request for visitation with
a child not in the custody of his or her parents. Alternatively, Tipton insists
that even if the higher clear and convincing evidence standard were applicable,
the court in this case did not abuse its discretion.
In Massie v. Navy, 487 S.W.3d 443 (Ky. 2016), we were presented with a
similar case, i.e., a grandparent seeking visitation with a child who resided with
a non-parent custodian, but the issue of the appropriate standard of proof was
not preserved and hence this Court did not address it. Along with this case,
Massie illustrates the struggles the bench and bar face when dealing with
evolving domestic relations issues and changing family caregiving and living
arrangements for which a way forward is not always clearly outlined by statute
or even case law.5 We find sufficient preservation of the issue of the proper
standard of proof in this case to address it.
I. The statutory framework and factors relevant to grandparent visitation.
5 For example, in this case, KRS 405.021 was not cited as the authority by which the grandparent visitation dispute should be settled until the latter part of the lower court proceedings. Initially, both parties cited KRS Chapter 403 generally and KRS 403.270 in motions requesting an order for specific timesharing (Tipton) and, later, a final and appealable order regarding the children’s best interest (the Mortons). However, six months after the final hearing (two months after Massie was issued), the Mortons cited KRS 405.021 in a motion for a final and appealable order. Prior to that, the Mortons had cited KRS 405.021 as a statute which allows grandparents’ reasonable visitation, but only if it is in the child’s best interest. This case history illustrates the common confusion regarding grandparent visitation issues.
8 Grandparent visitation in Kentucky is governed by statute. Kentucky
Revised Statute (KRS) 405.02 l(l)(a),6 often referred to as Kentucky’s
grandparent visitation statute, is contained in Title XXXV. Domestic Relations,
Chapter 405. Parent and Child, and entitled “Reasonable visitation rights to
grandparents.” KRS 405.02 l(l){a) currently provides: “The Circuit 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.” When the
statute was originally adopted in 1976, it only applied if a child’s parent was
deceased. In 1984 the General Assembly extended the right of grandparents to
petition for visitation to cases where the parent or parents of the child are not
deceased. Cole v. Thomas, 735 S.W.2d 333, 334 (Ky. App. 1987). This Court,
in King v. King, 828 S.W.2d 630, 632 (Ky. 1992) (overruled on other grounds),
upheld the constitutionality of KRS 405.02 l(l)(a) and recognized that it seeks
to balance the rights of the parents, the grandparents and the child. The
underlying factual premise in early cases pursuant to the statute was a
custodial parent objecting to visitation by a grandparent, plainly not the facts
before us or in Massie. Although CT and KT’s parents are not involved in this
6 KRS 405.021 was amended in 2018, after being unchanged since 1996. The amendment added KRS 405.02l(l)(b) and (c) regarding a rebuttable presumption where the grandparent’s own child is deceased and he / she seeks grandparent visitation. Prior to that amendment, the provision now codified in KRS 405.02 l(l)(a) was codified in KRS 405.021(1). Although KRS 405.02 l(l)’s revision occurred after the initiation of this case, because the statutory text remained unchanged, we refer to the current codification of KRS 405.021.
9 case, the constitutional rights of custodial parents are nevertheless germane to
our consideration of the issue before us.
In Troxel v. Granville, 530 U.S. 57, 61 (2000), the United States Supreme
Court held that parents and grandparents are not on equal footing in a best
interest of the child analysis such as the one required by KRS 405.02 l(l)(a).7
Constitutionally, a fit parent has rights superior to all others when making
decisions about the care, custody, and control of his or her children and that
includes decisions about who may visit with the child. Id. at 66, 70.
Furthermore, the law presumes that a fit parent acts in the child’s best
interest. Id. at 68. Consequently, in Walker we recognized a parent’s decision
regarding grandparent visitation must be given special weight. 382 S.W.3d at
870. The grandparent seeking visitation must overcome the constitutional
presumption regarding the parent’s visitation decision with clear and
convincing proof that visitation with the grandparent is in the child’s best
interest. Id. at 866.8 *This 10 use of the heightened clear and convincing evidence
standard with the best interest analysis is often referred to as the modified best
7 The Washington statute at issue in Troxel went beyond grandparent visitation. The statute provided that “Any person may petition the court for visitation rights at any time . . . [and] [t]he court may order visitation rights for any person when visitation may serve the best interest of the child . . . .” 530 U.S. at 61. 8 The Walker Court maintained the clear and convincing evidentiary standard set in Vibbert v. Vibbert, 144 S.W.3d 292, 294 (Ky. App. 2004). Vibbert explained that “cases involving] the fundamental right of parents to raise their children as they see fit without undue interference from the state, [require] the use of this heightened standard of proof.” 144 S.W.3d at 295 (citing Santosky v. Kramer, 455 U.S. 745, 756 (1982)) (clear and convincing proof is mandated when the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money).
10 interest standard. See Vibbert, 144 S.W.3d at 294. The heightened modified
standard contrasts with the preponderance of the evidence standard, the
customary evidentiary standard in civil cases. See Woods v. Commonwealth,
142 S.W.3d 24, 43 (Ky. 2004) (citing Aetna Insurance Co. v. Johnson, 74 Ky.
587, 593 (1874)).
In Walker, this Court identified factors relevant to determining whether
grandparent visitation is in the child’s best interest despite such visitation
being against the parent’s wishes. Those factors include but are not limited to:
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; 7) the wishes and preferences of the child; and 8) the motivation of the adults participating in the grandparent visitation proceedings.
Walker, 382 S.W.3d at 871.9 Depending upon the circumstances of each case,
some or all of these and other factors will be relevant to the best interest
determination. Massie, 487 S.W.3d at 447.
In recent years, many grandparents have become increasingly involved in
their grandchildren’s lives, from seeing them on a regular basis to caring for
them on a full- or part-time basis, if a parent is unable or unwilling to care for9 * 11
9 Walker adopted and supplemented the factors enumerated in Vibbert, 144 S.W.3d at 295.
11 the children.10 Many grandparents in the Commonwealth have temporary or
even permanent custody of their grandchildren. Although KRS 405.021 (l)(a) is
premised upon a custodial parent being present and responsible for the care
and upbringing of the child, it is not uncommon today for a child to be cared
for by someone other than a custodial parent. Thus, grandparents are often
seeking visitation from non-parent custodians and caretakers, including, as in
this case, the child’s other grandparents. While the General Assembly has
taken steps recently which recognize that grandparents may petition for
visitation when other grandparents have been granted temporary custody,11
this case rightfully reflects that KRS 405.021 (l)(a) and its customary “best
interest of the child” standard have been used for guidance when grandparents
seek visitation of grandchildren in the permanent custody of someone other
than their parent(s). See also Massie, 487 S.W.3d 443 (KRS 405.021 applied
where grandparent was seeking visitation from custodial uncle and aunt who
may have had “full custody”).10 11 12
10 See the preface to 2018 Ky. Acts ch. 197, which states in part “the opioid epidemic and rise in drug abuse has led to an increase in the number of families that are pulled apart” and “there are over 70,000 children in Kentucky that are no longer living with their parents, including over 8,000 children in foster care and over 30,000 homeless children.”
11 Enacted in 2018, KRS 620.090(6) states: “If custody is granted to a grandparent of the child pursuant to this section [regarding temporary custody orders], the court shall consider granting reasonable visitation rights to any other grandparent of the child if the court determines the grandparent has a significant and viable relationship with the child as established in KRS 405.02l(l)(c).”
12 The applicability of KRS 405.02 l(l)(a) and the Walker factors to the
current grandparent visitation case is not disputed. All parties agree that the
statute and Walker are controlling but they disagree as to the standard of
proof. Thus, this Court must decide, as a matter of law, the proper evidentiary
standard to be used by the trial court when performing a KRS 405.021 (l)(a)
best interest analysis in a visitation dispute between a grandparent and a non
parent custodian. As often noted, we review matters of law de novo. Auslander
Properties, LLC v. Nalley, 558 S.W.3d 457, 464 (Ky. 2018).
II. The preponderance of the evidence standard is controlling when the custodian is not a parent.
A plain reading of KRS 405.021 reveals that it does not specify the
standard of proof required to determine whether it is in a grandchild’s best
interest to visit with a grandparent. Prior to the United States Supreme Court’s
discussion of a parent’s superior, constitutional rights in Troxel, Kentucky trial
courts employed the preponderance of the evidence standard when performing
a KRS 405.021 best interest analysis. See Walker, 382 S.W.3d at 868. In
response to Troxel, this Court recognized in Walker v. Blair that parents have a
fundamental liberty interest in the care, custody, and control of their children
and, consequently, a heightened burden of proof, the clear and convincing
evidentiary standard, must be used in order for a grandparent to be granted
visitation under the best interest analysis when a parent objects.
The Mortons contend that while they are not the biological parents of CT
and KT, they have raised the children as their own since 2010 and as long-
13 term permanent custodians, should receive the same presumptions and
protections as a biological parent, including application of the clear and
convincing evidentiary standard as to whether it is in the children’s best
interest for Tipton to be granted visitation with them. Tipton counters that the
parents’ liberty interest in the care, custody, and control of their children does
not extend to non-parent custodians and consequently, no presumption exists
under the Due Process Clause that the non-parent custodian is acting in the
best interest of a minor child when denying a grandparent visitation. Tipton
argues accordingly that the applicable standard here, as in most civil cases, is
the preponderance of the evidence standard.
“The function of a standard of proof, as that concept is embodied in the
Due Process Clause and in the realm of factfinding, is to instruct the factfinder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication.”
Santosky v. Kramer, 455 U.S. 745, 754-55 (1982) (quoting Addington v. Texas,
441 U.S. 418 (1979) (internal quotation marks and citation omitted)). The
standard is “shaped by the risk of error inherent in the truth-finding process as
applied to the generality of cases, not the rare exceptions.” Id. at 757 (quoting
Mathews v. Eldridge, 424 U.S. 319, 344 (1976)). For the majority of civil cases,
the minimum preponderance of the evidence standard applies and the risk of
error is shared in roughly equal fashion, a position that is considered
fundamentally fair. See Addington, 441 U.S. at 423. Application of the
intermediate clear and convincing evidence standard is proper, however, when
14 the individual interests at stake in a state proceeding are both “particularly
important” and “more substantial than mere loss of money.” Id. at 424.
“Because a natural parent’s desire for and right to the companionship, care,
custody, and management of his or her children is an interest far more
precious than any property right,” Santosky, 455 U.S. at 758-59 (citations and
internal quotation marks omitted), this Court recognized the controlling clear
and convincing standard’s application to the KRS 405.02 l(l)(a) analysis in
Walker. “Whether the loss threatened by a particular type of proceeding is
sufficiently grave to warrant more than average certainty on the part of the
factfinder turns on both the nature of the private interest threatened and the
permanency of the threatened loss.” Id. at 758.
As noted by Hardin v. Savageau, in Kentucky, “[a]mong the most
common of cases which require proof by clear and convincing evidence are
termination of parental rights, illegitimacy of a child born in wedlock, unfitness
of a natural parent for custody of a child, proof of a lost will, and fraud.”
906 S.W.2d 356, 357 (Ky. 1995) (citations omitted). Undoubtedly when
litigating a parental rights case, the private interest affected is of superior
interest and the risk of error from using a preponderance standard is
substantial. However, the same cannot be said when a non-parent custodian
disputes grandparent visitation.
The Fourteenth Amendment provides that no State shall “deprive any
person of life, liberty, or property, without due process of law.” As the United
States Supreme Court has made clear, “there is a constitutional dimension to
15 the right of parents to direct the upbringing of their children.” Troxel, 530 U.S.
at 65-66 (summarizing cases). “It is cardinal with us that the custody, care
and nurture of the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither supply nor
hinder.” Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). “[S]o
long as a parent adequately cares for his or her children (i.e., is fit), there will
normally be no reason for the State to inject itself into the private realm of the
family to further question the ability of that parent to make the best decisions
concerning the rearing of that parent’s children.” Id. at 68-69 (citation
omitted).
However, as in the present case, when the custody of the parent fails, the
Commonwealth may either exercise custody itself or appoint someone else to
do so. The liberty interest at issue in Walker, the interest of parents in the
care, custody, and control of their children — which commands a heightened
burden of proof — is simply not present when non-parents are granted custody
by the State. Stated differently, the superior rights of a parent are not
bestowed on a non-parent custodian, regardless of the custodian’s relationship
to the child or the length of their custodial relationship. Consequently, the
presumption that a fit parent would make decisions in the child’s best interest
does not transfer to the non-parent and is not part of the analysis.
Although fit parents and grandparents seeking visitation with a
grandchild are not constitutionally on equal footing and a heightened burden of
proof is required to be met for a trial court to grant the disputed visitation, the
16 same is not true of grandparent visitation disputes involving a non-parent
custodian. As the Commonwealth has an interest in preserving and promoting
the welfare of the children, our legislature has recognized with its acts that
children should have the opportunity to benefit from relationships with their
grandparents. The opportunity to benefit from that relationship may indeed be
greater when circumstances are such that the parents no longer have custody
of the children. Without a fundamental constitutional right at issue, we find
no authority for imposing the clear and convincing standard on the best
interest of the child analysis. Unless the legislature provides otherwise, the
non-parent custodian and a grandparent are on equal footing under KRS
405.021 (l)(a) and the preponderance of the evidence standard for determining
whether grandparent visitation is in the child’s best interest is fundamentally
fair and proper.
Although the trial court in this case did not explicitly identify the
standard of proof it employed, it did state as an initial conclusion of law that
“[grandparent visitation rights do not interfere with the constitutional right of
the biological parents in this case, given that the parents’ whereabouts are
unknown, the parents do not have custody and the parents do not have a set
visitation schedule.” This statement and the remainder of the order strongly
suggest that the trial court correctly employed the typical preponderance of the
evidence standard. The Court of Appeals also identified that standard as the
appropriate standard in cases such as this and, for the reasons stated, we
affirm.
17 Before advancing to the next issue, we note that since the inception of
this action, the 2018 General Assembly passed House Bill 517, an act relating
to grandparent visitation, which amended KRS 405.021 and KRS 620.090. The
act’s preface acknowledges the amendments are needed due to the crucial role
many grandparents play in their grandchildren’s healthy development,
especially when the parents abuse drugs and the children no longer live with
their parents. Its preface states inter alia, “studies have shown that
relationships between adolescents and grandparents contribute to the
adolescents’ well-being”; “studies have also shown that grandparents are
instrumental in times of family adversity and help the whole family to survive a
crisis”; “emotionally close ties between grandparents and grandchildren provide
a wide variety of benefits to both grandparent and grandchild”; “the opioid
epidemic and rise in drug abuse has led to an increase in the number of
families that are pulled apart”; “over 70,000 children in Kentucky . . . are no
longer living with their parents, including over 8,000 children in foster care and
over 30,000 homeless children”; “the presence of healthy, supportive
grandparents has been shown to be a factor in distinguishing well-functioning
children of drug abusers”; and “there is a rapidly increasing number of
grandparents who serve as the primary caregivers for children.”
As mentioned above, under KRS 620.090 which deals with temporary
custody orders, a new subsection (6) was created which states: “If custody is
granted to a grandparent of the child pursuant to this section, the court shall
consider granting reasonable visitation rights to any other grandparent of the
18 child if the court determines the grandparent has a significant and viable
relationship with the child as established in KRS 405.02 l(l)(c).” Newly created
KRS 405.02 l(l)(c) states:
In order to prove a significant and viable relationship under paragraph (b) of this subsection, the grandparent shall prove by a preponderance of the evidence that: 1. The child resided with the grandparent for at least six (6) consecutive months with or without the current custodian present; 2. The grandparent was the caregiver of the child on a regular basis for at least six (6) consecutive months; 3. The grandparent had frequent or regular contact with the child for at least twelve (12) consecutive months; or 4. There exist any other facts that establish that the loss of the relationship between the grandparent and the child is likely to harm the child.
(Emphasis added.) KRS 620.090(6) is noteworthy for its impact on future
grandparent visitation cases involving temporary custody orders.
To reiterate, going forward, trial courts must use the preponderance of
the evidence standard when considering grandparent visitation if someone
other than a parent, including another grandparent, is the grandchild’s
custodian. We turn now to whether the trial court properly considered the
factors relevant to determining whether grandparent visitation is in a child’s
best interests.
III. The trial court properly considered the Walker factors and did not abuse its discretion.
As noted earlier, the facts of each case will determine the factors to be
considered when determining whether grandparent visitation is in the child’s
best interest. Although the Walker factors were developed in the context of a
parent-grandparent visitation dispute, the factors are readily amenable to
19 disputes not involving a parent - the references to “parents” are simply
replaced with “non-parent custodian” or other fitting reference. The factors,
while not necessarily identifying all circumstances to be considered, reflect a
holistic approach to the assessment when determining the best interest of the
child. Upon review of the trial court’s approximately 30 pages of findings of
fact, which included a review of the case from its inception, we conclude that
the trial court considered the Walker factors, albeit without reference to the
case itself.
The Court of Appeals identified various findings of fact which reflected
the trial court’s careful consideration of the visitation factors, even though
Walker was not cited. For example, the trial court found Tipton was involved
with the children since birth and that the relationship had been interrupted
due to Brian and Roxanna’s substance abuse problems and Darlene’s
subsequent animosity toward Tipton. The trial court found it was in the
children’s best interest to have contact not only with Tipton but also with the
paternal side of the family through occasional contact with Tipton provided it
was in a manner that would not disrupt the children’s daily lives. Although
some evidence supported that the children are reluctant to visit with Tipton,
the trial court attributed that reluctance to Darlene’s negative attitude toward
Tipton and the pending court proceedings. As to the allegations that Tipton
sexually abused CT, the trial court found no improper touching occurred with
Tipton’s helping CT to wipe after using the bathroom. In his brief to this Court,
Tipton likewise demonstrated that the trial court considered the evidence in
20 light of all relevant factors by pairing the Walker factors and the trial court’s
findings which supported a decision in his favor. We agree that despite not
citing Walker,12 the trial court’s order sufficiently addressed relevant factors.
The Mortons acknowledge that the Court of Appeals analyzed the Walker
factors but argue that the Court of Appeals erred by failing to consider fully the
evidence introduced at the final hearing. By listing the factors and evidence
viewed as disfavoring the award of visitation under those factors, such as the
social worker and therapist’s recommendation against visitation or for limited
visitation with Tipton, the Mortons seek to persuade us of the trial court’s
error. Indeed, the conflicting evidence in this case would have allowed another
decision maker to reach a different conclusion. However, if the trial court’s
findings of fact are not clearly erroneous, we assess whether the trial court’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003); Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). We find no clear error in the factual
findings and conclude that the trial court did not abuse its discretion in
granting Tipton limited visitation three times per year.
We note that this case was initiated in Montgomery Circuit Court in
October 2012. As concerns for the children evolved, so did the trial court’s
12 The appellant in Massie v. Navy also complained that the trial court did not cite Walker and perform a factorial analysis. Justice VanMeter, then the dissenting judge on the Court of Appeals’ panel, counseled trial courts that they should cite Walker and list and consider all the enumerated best interest factors in their orders. 2014-CA-001052-ME, at 9 (Ky. App. Aug. 14, 2015). We reiterate that suggestion here.
21 attempts to find solutions which were in the best interest of the children. After
conducting the final hearing and finding it to be in CT and KT’s best interest to
visit with Tipton, the trial court found yet another safeguarded avenue for CT
and KT to have an opportunity to benefit from a relationship with their paternal
grandfather and other paternal family members. The trial court structured
restricted visitation at Tipton’s daughter’s home three times a year. Although
this is far from the visitation requested by Tipton, the schedule will keep Tipton
and his granddaughters from being complete strangers and will allow CT and
KT to decide when they are older how their relationships with the paternal side
of their family will develop. The Court of Appeals properly concluded that the
trial court’s findings were not clearly erroneous and that court did not abuse
its discretion in this difficult case.
CONCLUSION
In summary, Tipton petitioned to modify the court-ordered grandparent
visitation by asking for an established visitation schedule. Over the course of
time, the Mortons came to reject any visitation between Tipton and the
grandchildren. The trial court finally granted visitation three times per year
with restrictions. We conclude the trial court properly used the preponderance
of the evidence burden of proof when assessing whether Tipton’s grandparent
visitation was in the best interest of the children and did not abuse its
22 discretion when granting the restricted visitation. The Court of Appeals is
therefore affirmed.
Minton, C.J.; Keller, Lambert, VanMeter and Wright, JJ., sitting. All
concur.
COUNSEL FOR APPELLANT:
John Maurice Henricks ROWADY HENDRICKS LAW, P.S.C.
COUNSEL FOR APPELLEE:
Monica Lacy MONICA S. LACY PSC