Grandparent’s Rights, Or No Rights? A Look at Walker V. Blair

The Kentucky Supreme Court just revisited the issue of whether grandparents may have visitation with their grandchildren. Kentucky Revised Statute 405.021 allows grandparents to petition a Trial Court for visitation. The new Supreme Court decision though, will not make these cases easy. The Kentucky Supreme Court in Walker v. Blair, upheld the Court of Appeal’s 2004 decision in Vibbert v. Vibbert, 144 S. W. 3d 292 (Ky. App. 2004), saying a grandparent may have visitation if it is in the child(ren)’s best interest. However, the Kentucky Supreme Court emphasized that a “trial court must presume that the parent is acting in the child’s best interest.” Walker v. Blair, 2012-SC-000004-DGE. In addition, the grandparent now has the burden to prove, by clear and convincing evidence, that visitation is in the child’s best interest. The Court stated that proving the grandparent and grandchild have a loving relationship will not be enough to overcome this burden, and the grandparent must show much more. The Court upheld the factors in Vibbert used to assess “best interest” and also added a factor of its own. Trial judges are now supposed to consider:

1. the nature and stability of the relationship between the child and the grandparent;
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.

Again, the court stressed that a loving relationship is not enough. A grandparent can “show that the parent is mistaken in the belief that visitation is not in the child’s best interest” and must prove that “to sever contact would cause distress to the child.” Walker at 6.

I believe we can expect to see more therapists and counselors involved in these situations. Jefferson County judges often appoint such in cases between parents involving visitation. Now that the grandparent must prove it is in the child’s best interest to have visitation by clear and convincing evidence, the best person to assess this, in my opinion, is a therapist, whether it is a psychologist, psychiatrist, licensed social worker, or the like.

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