Walker v. Blair

• Decision Date: 25 October 2012
• Docket Number: No. 2012–SC–000004–DGE.,2012–SC–000004–DGE.
• Citation: 382 S.W.3d 862
• Parties: Michelle L. WALKER, Appellant, v. Donna S. BLAIR, Appellee.
• Court: United States State Supreme Court — District of Kentucky

382 S.W.3d 862

Michelle L. WALKER, Appellant,

v.Donna S. BLAIR, Appellee.

No. 2012–SC–000004–DGE.

Supreme Court of Kentucky.

Oct. 25, 2012.

Mitchell A. Charney, Allison Spencer Russell, Stephanie Lynn Morgan–White, Goldberg Simpson, LLC, Prospect, KY, Counsel for Appellant.

Denise Malone Helline, Celebrezze & Helline, Louisville, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice MINTON.

The United States Supreme Court in Troxel v. Granville¹ addressed the federal constitutional implications of state statutes that allow courts to grant non-parent visitation with children over parental objections. A majority of that Court recognized that parents have a constitutionally protected liberty interest in rearing their children without government interference. To protect this liberty interest, courts must give appropriate weight in non-parent visitation proceedings to the parents' decision to deny visitation.

We accepted discretionary review of this case to consider how to interpret Kentucky's grandparent-visitation statute, Kentucky Revised Statutes (KRS) 405.021(1), consistently with the constitutional principles articulated in Troxel and whether the trial court in this case appropriately interceded to grant the grandmother visitation with the child despite the objection of the child's mother.

In accordance with Troxel, we hold that a fit parent is presumed to act in the best interest of the child. A grandparent petitioning for child visitation contrary to the wishes of the child's parent can overcome this presumption of validity only with clear and convincing evidence that granting visitation to the grandparent is in the child's best interest. In determining the child's best interest, the trial court can turn to the factors in the modified best interest analysis, which we outline in this opinion.

The trial court in the case before us appeared to acknowledge its obligation to afford the mother's decision some weight. But the trial court, in granting visitation to the grandmother, and the Court of Appeals in affirming the trial court's grant, relied on pre-Troxel case law that inappropriately placed grandparents on equal footing with parents when determining visitation. So we must reverse the decision of the Court of Appeals and remand the case to the trial court with directions to conduct a new evidentiary hearing and apply the legal standards consistent with this opinion.

I. TRIAL COURT GRANTED GRANDMOTHER VISITATION OVER MOTHER'S OBJECTION, AND COURT OF APPEALS AFFIRMED.

Michelle Walker (“Walker”) and Steve Blair (“Steve”) had one child in common, B.B. Steve committed suicide. And a few months later, Steve's mother, Donna Blair (“Blair”), filed a petition under KRS 405.021(1) to establish grandparent visitation with five-year-old B.B. Walker opposed Blair's visitation petition and filed a motion to dismiss, which the trial court denied. The trial court held an evidentiary hearing in which Walker, Blair, and Martin Blair testified. Martin Blair is Blair's ex-husband and B.B.'s paternal grandfather.

Blair testified that she and B.B. had a close, loving relationship. And she exhibited pictures of B.B.'s baptism, birthdays, holidays, and other occasions. Blair claimed that she often babysat B.B. and took him swimming, to the movies, and on outings to Rough River. She and Walker got along well for most of B.B.'s life. But, after Steve's death, Blair called Walker and asked if Steve's suicide made her happy. She testified that she thinks Walker and her husband contributed to Steve's suicide but claimed that she no longer feels animosity toward them. At the time of the hearing, Blair was divorced from Martin Blair but still saw him once or twice weekly. Blair also had a history of depression. At the time of the hearing, she was taking three different antidepressant medications. She received counseling before and after Steve's death but had not seen her therapist for several months before the evidentiary hearing. She testified that her mental condition is stable.

Martin Blair also testified at the hearing. He acknowledged that an active domestic violence order (DVO) prohibited him from all contact with Walker. A court issued the DVO when, following Steve's suicide, Martin threatened to kill Walker and her husband. Martin, who is an alcoholic, was arrested for violating the DVO shortly after it was entered. He testified that he believes Walker contributed to Steve's suicide. And Martin acknowledged that he would not be allowed to see B.B. if Blair is granted visitation.

Walker testified that Blair had infrequent contact with B.B. According to Walker, Blair saw B.B. only when Steve exercised his right to see B.B. Walker placed B.B. in counseling after his father's suicide. Walker stated that B.B. has not asked to see or call his grandparents, and he does not recognize pictures of his grandparents. Although Walker opposed a court-ordered visitation schedule, she testified that she would follow the recommendation of B.B.'s therapist regarding his contact with Blair.

The trial court found that it was in B.B.'s best interest to grant visitation to Blair. The court ordered B.B.'s therapist to reinitiate contact between Blair and B.B. And the trial court indicated that the goal was for Blair eventually to have at least one biweekly, full-day visit or one overnight visit per month, along with reasonable visitation during holidays. Walker filed a motion to alter, amend, or vacate the trial court's order, which the trial court denied. On appeal by Walker, the Court of Appeals affirmed the trial court's order.

II. ANALYSIS.

We review the trial court's findings of fact applying the clearly erroneous standard,² under which we give due regard “to the opportunity of the trial court to judge the credibility of the witnesses.” ³ But the interpretation of KRS 405.021(1) in accordance with federal constitutional law and the application of the appropriate standard to the facts are issues of law that we review de novo.⁴

A. KRS 405.021(1) and the Parents' Fundamental Liberty Interests.

KRS 405.021(1) provides, in pertinent part, that “[t]he 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.”

This Court last addressed Kentucky's grandparent visitation statute twenty years ago in King v. King.⁵ In that case, the parents appealed the trial court's grant of grandparent visitation rights, arguing that the statute violated their liberty interests under the Fourteenth Amendment of the United States Constitution. In analyzing the statute's constitutionality, the Court extolled the “benefits to be derived from the establishment of a bond between grandparent and grandchild.” ⁶ The Court opined that

[i]f a grandparent is physically, mentally[,] and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent. That grandparents and grandchildren normally have a special bond cannot be denied. Each benefits from contact with the other. The child can learn respect, a sense of responsibility[,] and love. The grandparent can be invigorated by exposure to youth, can gain an insight into our changing society, and can avoid the loneliness which is so often a part of an aging parent's life.⁷

The Court found the statute constitutional because “[t]hese considerations by the state do not go too far in intruding into the fundamental rights of the parents.” ⁸ The Court neither gave presumptive weight to a fit parent's decision to deny visitation nor required grandparents to meet a heightened burden of proof of the child's best interest. The Court left the best interest analysis to the trial court's determination based on a preponderance of the evidence standard.

Eight years after King, the United States Supreme Court addressed third-party visitation in Troxel v. Granville.⁹ Before the Court was a Washington statute that broadly permitted “ ‘[a]ny person’ to petition a superior court for visitation rights ‘at any time[ ]’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child.’ ” ¹⁰ The trial court in Troxel granted visitation rights to a child's grandparents under this statute. On appeal, the Washington Supreme Court held that the statute unconstitutionally interfered with parents' fundamental right to raise their children. A plurality of the U.S. Supreme Court affirmed the state supreme court's decision.

A majority of the Court agreed that under the Due Process Clause of the Fourteenth Amendment, parents have a fundamental liberty interest in the care, custody, and control of their children.¹¹ And a majority concurred that “there is a presumption that fit parents act in the best interests of their children.” ¹² The plurality opinion did not define the precise scope of the parental due process right in the grandparent visitation context. Rather, Justice O'Connor's lead opinion held the Washington statute unconstitutional as applied to the case (1) because it did not require a court to give the parent's decision a presumption of validity or any special weight and (2) because the mother did not cut off the grandparent visitation entirely. ¹³

In Scott v. Scott,¹⁴ a panel of the Kentucky Court of Appeals interpreted KRS 405.021(1) in light of the federal constitutional rights delineated in Troxel. To protect parents' liberty interests under the Fourteenth Amendment, the panel held that “grandparent visitation may only be granted over the objection of an otherwise fit custodial parent if it is shown by clear and convincing evidence that harm to the child will result from a deprivation of visitation with the grandparent.” ¹⁵

The Court of Appeals, sitting en banc, soon overturned Scott in Vibbert v. Vibbert.¹⁶ The court acknowledged that the rule in Scott properly...