VANWINKLE V. PETRY
Family Law: Modification of grandparent visitation
PUBLISHED: AFFIRMING IN PART AND VACATING IN PART; PAISLEY
DATE RENDERED: 1/19/2007
Trial Court ordered that Grandparents were to approve any change in Mother’s visitation with children, though Mother and Father shared joint custody. Trial Court also, sua sponte, increased maternal grandparents’ visitation with minor grandchildren from one to two weekends per month.
Issue One: May the Court, sua sponte¸ award visitation to grandparents?
Analysis: No. Pursuant to KRS 405.021, grandparents have the right to petition a trial court for visitation with their grandchildren; however, if the parents object, the grandparents must prove, by clear and convincing evidence, that such visitation would be in the grandchildren’s best interest, considering such factors as the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child’s relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child’s living and schooling arrangements; the wishes and preferences of the child. The grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child. Thus, the grandparents must file a Petition for visitation in order to receive it, including additional visitation, and the trial court must make a finding that such visitation is in the child’
Issue Two: May the court order that a non-custodian must approve changes in a parenting time schedule, especially where the non-custodian is a party to the action due to his visitation rights?
Analysis: No. Such an arrangement violates the parents’ rights under Troxel v. Granville, wherein the United States Supreme Court stated that “it cannot now be doubted that 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.” Even though a parent has a fundamental and constitutionally protected right to make decisions regarding his or her child, that right is not unfettered, as the trial court has the power to set and modify custody and may remove a child from a parent’s custody where supported by the law. This does not allow the Court, however, to grant any decision-making ability to anyone other than custodians of the children.