RENDERED: SEPTEMBER 24, 2020 TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0615-DE
JUSTIN PINTO APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2019-CA-0435 PULASKI CIRCUIT COURT NO. 07-CI-00501
VAN ROBISON AND VERIA ROBISON; APPELLEES WILLIAM BROWN; AND DANIEL CAMERON, ATTORNEY GENERAL
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING
Justin Pinto appeals the Court of Appeals’ reversal of the Pulaski Circuit
Court’s ruling that Kentucky Revised Statute (“KRS”) 405.021(1)(b) and (c),
which governs grandparent visitation, is unconstitutional. This Court granted
Pinto’s motion for discretionary review. Having reviewed the record and
considered the arguments of the parties, we hereby reverse the Court of
Appeals.
I. BACKGROUND1
Lisa and Justin Pinto are the parents of two children, I.P. and R.P.2 Lisa
and Justin were divorced in 2006, and as part of that divorce, Lisa was granted
1 This case has a long and tortuous history. Because the facts of the underlying
case are not particularly relevant to our legal analysis, we only discuss them briefly. 2 Consistent with the lower courts and to help protect their privacy, we will refer
to the minor children by their initials. sole custody of the two children while Justin was granted visitation. In 2007,
Lisa married William Brown, and the couple, along with the two children,
moved to North Carolina in 2014. In May 2016, Justin filed a motion to modify
custody, seeking to be awarded sole custody of the children due to Lisa’s
declining health. In June 2016, Lisa’s parents, the Robisons, along with Brown,
filed a motion to intervene in the custody action. In July 2016, Lisa lost her
battle with cancer and passed away. The Pulaski Circuit Court granted Brown
temporary custody of the children and ordered that the parties participate in
mediation and reconciliation therapy to help the children reestablish their
relationship with their father. The case remained in this status for nearly two
years.
In May 2018, Brown filed a motion for sole custody of the children. After
conducting a full trial on the matter, the Pulaski Circuit Court entered a final
judgment granting Justin’s 2016 motion to modify custody and denying
Brown’s motion for sole custody. As a result of that judgment, Justin was
granted full and sole custody of the children. Thereafter, the Robisons filed a
motion to amend the final judgment to include grandparent visitation pursuant
to KRS 405.021(1). Notably, the Robisons’ motion did not specify under which
paragraph of KRS 405.021(1) they were making their request.
Justin argued the Robisons’ motion should be dismissed on procedural
grounds, but also argued that KRS 405.021(1)(b) and (c) is unconstitutional
under Troxel v. Granville, 530 U.S. 57 (2000), and Walker v. Blair, 382 S.W.3d
862 (Ky. 2012). Justin argued to the circuit court and again argues to this
2 Court that KRS 405.021(1)(b) and (c) does not adequately account for the
presumption that a fit parent acts in a child’s best interest and impermissibly
lowers the burden by which grandparents must overcome that presumption.
The circuit court entered extensive factual findings concluding unequivocally
that the children would benefit from continuing their frequent and meaningful
contact with their grandparents. However, it ultimately agreed with Justin’s
constitutional argument. It found KRS 405.021(1)(b) and (c) to be
unconstitutional as it failed to comply with Troxel and dismissed the Robisons’
motion for grandparent visitation.
The Robisons appealed to the Court of Appeals. The Court of Appeals
first noted that although the circuit court found KRS 405.021(1)(b) and (c) to be
unconstitutional, the circuit court did not analyze the Robisons’ motion under
KRS 405.021(1)(a), a subsection of the statute that was held to be
constitutional by this Court in Walker provided a certain evidentiary process
was followed. The Court of Appeals further noted, however, that the Robisons
did not argue the circuit court erred by failing to analyze their claims under
Walker’s interpretation of KRS 405.021(1)(a) and therefore the court did not
address that issue. The Court of Appeals then addressed the constitutionality
of KRS 405.021(1)(b) and (c). The court distinguished the statute at issue from
the statutes at issue in both Troxel and Walker. The Court of Appeals
concluded that KRS 405.021(1)(b) and (c) was narrowly tailored to a very
specific set of circumstances and served to protect the relationships a child had
with his or her grandparents before the death of the child’s parent. Therefore,
3 the Court of Appeals held the statute was constitutional, and reversed and
remanded the case to the circuit court. We then granted discretionary review.
II. ANALYSIS
Justin argues the Court of Appeals erred in reversing the Pulaski Circuit
Court’s ruling that KRS 405.021(1)(b) and (c) is unconstitutional. Because this
case concerns a matter of constitutional construction or interpretation, we
review it de novo. Greene v. Commonwealth, 349 S.W.3d 892, 898 (Ky. 2011).
KRS 405.021(1) states as follows:
(a) 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. Once a grandparent has been granted visitation rights under this subsection, those rights shall not be adversely affected by the termination of parental rights belonging to the grandparent's son or daughter, who is the father or mother of the child visited by the grandparent, unless the Circuit Court determines that it is in the best interest of the child to do so.
(b) If the parent of the child who is the son or daughter of the grandparent is deceased, there shall be a rebuttable presumption that visitation with the grandparent is in the best interest of the child if the grandparent can prove a pre- existing significant and viable relationship with the child.
(c) 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;
4 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.
Only the constitutionality of subsections (b) and (c) are at issue in this case.
In reviewing a claim that a state statute is unconstitutional, we must be
mindful that “a statute is presumed to be constitutional unless it clearly
offends the limitations and prohibitions of the Constitution. ‘The one who
questions the validity of an act bears the burden to sustain such a
contention.’” Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000)
(quoting Stephens v. State Farm Mutual Auto Ins. Co., Ky., 894 S.W.2d 624
(1995)). Justin relies on Troxel v. Granville, 530 U.S. 57, and Walker v. Blair,
382 S.W.3d 862, to support his argument that KRS 405.021(1)(b) and (c) is
unconstitutional. Thus, a thorough review of those cases is necessary to
determine this issue.
In Troxel v. Granville, Brad Troxel and Tommie Granville had two children
together. 530 U.S. at 60. Jenifer and Gary Troxel were Brad’s parents, and
thus the paternal grandparents of the two children. Id. The children regularly
visited with the Troxels, even after their father passed away. Id. Eventually,
however, Tommie informed the Troxels that she wanted to limit the time her
children spent with them. Id. at 61. The Troxels then filed a petition in the
Washington Superior Court to obtain visitation rights with the girls. Id. At
issue in the case was Washington Revised Code § 26.10.160(3) which stated,
5 “Any person may petition the court for visitation rights at any time including,
but not limited to, custody proceedings. The court may order visitation rights
for any person when visitation may serve the best interest of the child whether
or not there has been any change of circumstances.” Id. The Washington
Superior Court entered a visitation decree ordering certain visitation, and
Granville appealed from that decree. Id. The case eventually made its way to
the United States Supreme Court at which time that Court was called upon to
determine the constitutionality of the Washington statute at issue. Id. at 63.
In Troxel, the United States Supreme Court recognized that the interest
of parents in the care, custody, and control of their children “is perhaps the
oldest of the fundamental liberty interests recognized by this Court” and
protected by the Due Process Clause of the Fourteenth Amendment. Id. at 65.
Further, the Court “recognized the fundamental right of parents to make
decisions concerning their care, custody, and control of their children.” Id. at
66.
The Court then reviewed the statute at issue and noted the language of
the statute
effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent's decision that visitation would not be in the child's best interest is accorded no deference.
Id. at 67. The Court then held that the statute, as applied, “exceeded the
bounds of the Due Process Clause. Id. at 68. The Supreme Court next made
6 clear that “there is a presumption that fit parents act in the best interests of
their children.” Id. It went on to explain
so 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. It then took issue with the Washington Superior Court’s failure to
give any special weight to Granville’s determination of her children’s best
interests and its effective requirement that Granville disprove that visitation
would be in the children’s best interests. Id. at 69. This, the Court held, “failed
to provide any protection for Granville’s fundamental constitutional right to
make decisions concerning the rearing of her own daughters.” Id. at 70.
Accordingly,
the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.
Id. A state cannot infringe on a parent’s fundamental right to make decisions
regarding his or her children merely because the judge “believes a ‘better’
decision could be made.” Id. at 73.
Although the United States Supreme Court struck down the Washington
statute as it was applied in the case before it, the Court chose not to further
define “the precise scope of the parental due process right in the visitation
context.” Id. The Court expressed hesitation with holding any particular state
statute regarding nonparental visitation was unconstitutional as a per se
7 matter, as “the constitutionality of any standard for awarding visitation turns
on the specific manner in which that standard is applied and that the
constitutional protections in this area are best ‘elaborated with care.’” Id.
(quoting J. Kennedy’s dissenting opinion, id. at 2079).
Twelve years after Troxel, this Court was called upon to apply the United
States Supreme Court’s holdings to the Kentucky grandparent visitation
statute in Walker v. Blair, 382 S.W.3d 862. Michelle Walker and Steve Blair
had one child in common. Id. at 866. After Blair’s death, his parents filed a
petition under KRS 405.021(1) to establish grandparent visitation with the
child. Id. The version of KRS 405.021(1) in effect at the time was verbatim the
current KRS 405.021(1)(a), quoted above. Walker opposed a court-ordered
visitation schedule. Id. The trial court found that visitation with his
grandparents was in the child’s best interest and ordered visitation, over
Walker’s objection. Id.
This Court reviewed Kentucky prior jurisprudence on the issue of
grandparent visitation and determined much of it was no longer good law after
Troxel. Id. at 870. We then reiterated the Supreme Court’s holdings in Troxel
and sought to further clarify them. Based on Troxel, we stated, “The
constitutional presumption that a fit parent acts in the child's best interest is
the starting point for a trial court's analysis under KRS 405.021(1).” Id. at 870-
71. We then clarified the burden of proof that a grandparent must meet to
overcome that presumption. We stated,
8 The grandparent petitioning for visitation must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child's best interest. In other words, the grandparent must show that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child's best interest. If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation.
Id. at 871.
Next, we delineated eight factors a trial court can look at in deciding
whether a parent is clearly mistaken in his or her belief that grandparent
visitation is not in the child’s best interest. Those factors are: 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. Id.
Finally, we made clear that determining whether grandparent visitation is in a
child’s best interest is a very fact-specific inquiry. Id. We ultimately held that if
KRS 405.021(1) was applied following these principles, it did not run afoul of a
parent’s fundamental liberty interest in raising his or her child. Id. at 870.
Having reviewed the relevant caselaw, we now turn to the statute at issue
in this case. KRS 405.021(1)(b) and (c) state as follows:
9 (b) If the parent of the child who is the son or daughter of the grandparent is deceased, there shall be a rebuttable presumption that visitation with the grandparent is in the best interest of the child if the grandparent can prove a pre- existing significant and viable relationship with the child.
(c) 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.
The statute, on its face, runs afoul of a parent’s fundamental constitutional
right to the care and custody of his or her child.
First, the statute allows a grandparent to prove a “significant and viable
relationship” with the child in one of four ways. The proof, however, need only
be by a preponderance of the evidence. The preponderance of the evidence
standard is lower than the clear and convincing evidence standard that we
require under Walker for a grandparent to rebut the presumption that a parent
is acting in the child’s best interest by limiting or denying visitation. Because
proving such a relationship by a mere preponderance standard is the only
element required by the statute to give the grandparents a rebuttable
presumption in their favor, which in turn effectively rebuts the presumption in 10 favor of the parent, the statute fails to accord the parent’s determination
regarding his or her child the “special weight” required by Troxel.
The Robisons argue that the factual scenarios required to be present
under KRS 405.021(1)(c) “point to the issue of whether a parent, ‘adequately
cares for his or her children,’ as Justice O’Connor defined ‘fitness.’” They
further argue that paragraph (c) requires that the grandparent had been “in an
in loco parentis role for an extended period of time.” Those contentions simply
are not true. For example, KRS 405.021(1)(c)(4) allows a trial court to find a
significant and viable relationship between the child and the grandparent as
long as the trial court finds that there exists “any other facts that establish that
the loss of the relationship between the grandparent and the child is likely to
harm the child.” By its very terms, that paragraph of the statute requires no
specific time period or strength of relationship between the child and the
grandparent. Further, paragraph (b) allows a trial court to find a significant
and viable relationship between the child and the grandparent if “[t]he
grandparent had frequent or regular contact with the child for at least twelve
(12) consecutive months.” This paragraph could be met if the grandparent
merely babysat the children on a regular basis or hosted a family dinner that
the child attended once each week. While we agree that such regular contact
would likely show a relationship exists, it does not necessarily show the
strength of that relationship and certainly does not show that the parents are
not fit or that the grandparent acted in loco parentis.
11 We recognize that the conditions listed in KRS 405.021(1)(c) reflect some
of the factors delineated in Walker that a trial court can look at to determine
whether visitation is clearly in the child’s best interest. See Walker, 382 S.W.3d
at 871. However, not all of the Walker factors are included in KRS
405.021(1)(c), but even if they were, we made clear it is still a fact-intensive
determination. See id. at 872. Further, even if the Walker factors are sufficient
to overcome the presumption that a parent is acting in the child’s best interest,
they are not sufficient to flip that presumption such that visitation with the
grandparent would be presumed to be in the best interest of the child, a
presumption which the parent would then be required to rebut.
Turning now to KRS 405.021(1)(b), we see where the flipping of the
presumption occurs. Paragraph (b) states as follows:
If the parent of the child who is the son or daughter of the grandparent is deceased, there shall be a rebuttable presumption that visitation with the grandparent is in the best interest of the child if the grandparent can prove a pre-existing significant and viable relationship with the child.
Under this, if a grandparent can prove the existence of a significant and viable
relationship with the child merely by a preponderance of the evidence as
previously discussed, the grandparent is then entitled to a presumption in his
or her favor. This portion of the statutory scheme again fails to accord the
requisite “special weight” required by Troxel to the parent’s determination
regarding his or her child. It does not comply with the presumption in favor of
the parent that this Court requires under Walker. Accordingly, it is violative of
the United States Constitution’s Due Process Clause on its face.
12 All 50 states have enacted some version of a grandparent visitation
statute; however, the variations on these statutes are too numerous to discuss
in this opinion. In our review, it appears that only a few states have enacted
legislation similar enough to ours to merit direct comparison, and our holding
today is consistent with the treatment of those similar statutes by the high
courts of those states.
The statute we found to be most similar to KRS 405.021(1)(b) and (c) is
from Washington and was held to be unconstitutional by the Supreme Court of
Washington in In re Parentage of C.A.M.A., 109 P.3d 405 (Wash. 2005). In that
case, the Supreme Court of Washington looked at Revised Code of Washington
(“RCW”) 26.09.240, the state’s third-party visitation statute. In full, the statute
provided:
(1) A person other than a parent may petition the court for visitation with a child at any time or may intervene in a pending dissolution, legal separation, or modification of parenting plan proceeding. A person other than a parent may not petition for visitation under this section unless the child's parent or parents have commenced an action under this chapter. (2) A petition for visitation with a child by a person other than a parent must be filed in the county in which the child resides. (3) A petition for visitation or a motion to intervene pursuant to this section shall be dismissed unless the petitioner or intervenor can demonstrate by clear and convincing evidence that a significant relationship exists with the child with whom visitation is sought. If the petition or motion is dismissed for failure to establish the existence of a significant relationship, the petitioner or intervenor shall be ordered to pay reasonable attorney's fees and costs to the parent, parents, other custodian, or representative of the child who responds to this petition or motion. (4) The court may order visitation between the petitioner or intervenor and the child between whom a significant relationship
13 exists upon a finding supported by the evidence that the visitation is in the child's best interests. (5)(a) Visitation with a grandparent shall be presumed to be in the child's best interests when a significant relationship has been shown to exist. This presumption may be rebutted by a preponderance of evidence showing that visitation would endanger the child's physical, mental, or emotional health. (b) If the court finds that reasonable visitation by a grandparent would be in the child's best interest except for hostilities that exist between the grandparent and one or both of the parents or person with whom the child lives, the court may set the matter for mediation under RCW 26.09.015. (6) The court may consider the following factors when making a determination of the child's best interests: (a) The strength of the relationship between the child and the petitioner; (b) The relationship between each of the child's parents or the person with whom the child is residing and the petitioner; (c) The nature and reason for either parent's objection to granting the petitioner visitation; (d) The effect that granting visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing; (e) The residential time sharing arrangements between the parents; (f) The good faith of the petitioner; (g) Any criminal history or history of physical, emotional, or sexual abuse or neglect by the petitioner; and (h) Any other factor relevant to the child's best interest. (7) The restrictions of RCW 26.09.191 that apply to parents shall be applied to a petitioner or intervenor who is not a parent. The nature and extent of visitation, subject to these restrictions, is in the discretion of the court. (8) The court may order an investigation and report concerning the proposed visitation or may appoint a guardian ad litem as provided in RCW 26.09.220. (9) Visitation granted pursuant to this section shall be incorporated into the parenting plan for the child.
14 (10) The court may modify or terminate visitation rights granted pursuant to this section in any subsequent modification action upon a showing that the visitation is no longer in the best interest of the child. C.A.M.A., 109 P.3d 405, 409–10 (quoting WASH. REV. CODE § 26.09.240)
(emphasis added). Subsection (5)(a) of that statute deals specifically with
grandparent visitation and is the parallel of our KRS 405.021(1)(b), as it creates
a presumption that grandparent visitation is in the best interest of the child
“when a significant relationship” is shown. The Supreme Court of Washington,
after discussing Troxel, held simply and concisely,
[I]t is clear that subsection (5)(a) directly contravenes the constitutionally required presumption that the fit parent acts in the child’s best interests…. The United States Supreme Court held that a court must accord “special weight” to the parents’ own determination, and because subsection (5)(a) establishes a presumption antonymous to that constitutionally required “special weight,” the subsection must fail.
Id. at 411. KRS 405.021(1)(b) suffers from the same fatal flaw.
This opinion should not be read to hold that all grandparent visitation
statutes are unconstitutional. In fact, we are leaving intact KRS 405.021(1)(a)
and KRS 405.021(3) as potential avenues for a trial court to grant grandparent
visitation so long as the trial court complies with Walker in applying those
subsections of the statute. We recognize the changing dynamics of families in
today’s society and the important and influential role that extended family
members, especially grandparents, play in raising today’s children. With this in
mind, we leave open the possibility that the legislature may enact further
grandparent visitation statutes that do comport with the Due Process Clause
15 and accord the requisite “special weight” to a parent’s determination of the best
interests of their child.3
Finally, as the Court of Appeals noted, the trial court did not analyze the
Robisons’ motion for grandparent visitation under KRS 405.021(1)(a) and this
Court’s interpretation of that statutory section in Walker. After the trial court’s
order was entered, the Robisons did not request the trial court make any
additional factual findings or apply paragraph (a) to their motion. Further, the
Robisons did not argue to the Court of Appeals or to this Court that the trial
court erred in failing to analyze their motion under paragraph (a). Therefore,
with an eye towards finality and stability for the children and rest of the family,
we will not address whether the trial court should have done so or remand for
it to do so.
III. CONCLUSION
For the foregoing reasons, we reverse the opinion of the Court of Appeals
and reinstate the trial court’s order.
Minton, C.J.; Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting.
All concur. Lambert, J., not sitting.
3 An example of a statute that includes many of the factors found in KRS 405.021(1)(c) but still gives a parent’s decision presumptive weight in accordance with Troxel can be found in In re Adoption of J.P., 385 S.W.3d 266 (Ark. 2011).
16 COUNSEL FOR APPELLANT:
Ralph D. Gibson
COUNSEL FOR APPELLEES, VAN ROBISON AND VERIA ROBISON:
Bruce W. Singleton