Ginter v. Cox

• Decision Date: 02 April 2021
• Docket Number: NO. 2020-CA-0606-MR,2020-CA-0606-MR
• Parties: SHARON GINTER and JOHN GINTER APPELLANTS v. STEVEN ANTHONY COX and MIRANDA ALLISON COX APPELLEES
• Court: Kentucky Court of Appeals

SHARON GINTER and JOHN GINTER APPELLANTS v. STEVEN ANTHONY COX and MIRANDA ALLISON COX APPELLEES

NO. 2020-CA-0606-MR

Commonwealth of Kentucky Court of Appeals

APRIL 2, 2021

NOT TO BE PUBLISHED

APPEAL FROM FLEMING CIRCUIT COURT

HONORABLE STOCKTON WOOD, JUDGE

ACTION NO. 19-CI-00077

OPINION

AFFIRMING

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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.

KRAMER, JUDGE:

Appellants John and Sharon Ginter are respectively the stepfather and mother of appellee, Steven Cox; and they are the grandparents of Steven's two adopted sons, D.C. (age 9) and P.C. (age 7).¹ Beginning in January 2019, Steven decided to prohibit John and Sharon from visiting with D.C. and P.C. Consequently, John and Sharon petitioned the Fleming Circuit Court for grandparent visitation rights regarding D.C. and P.C. pursuant to KRS² 405.021. After the parties presented their positions and evidence in support thereof at a hearing, the circuit court ultimately entered a final judgment denying John's and Sharon's petition. This appeal followed. Upon review, we affirm.

For the sake of context, we will discuss the applicable legal framework before delving into the facts. As indicated, the overarching issue in this matter involves the right of grandparents to visit with their grandchildren against the wishes of the grandchildren's parents. In the seminal case of Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court considered grandparent visitation and the federal constitutional implications of state statutes that permit courts to grant non-parent visitation with children over the objections of their parents. The Court noted that the Due Process Clause of the Fourteenth Amendment gives parents a fundamental liberty interest in the care, custody, and control of their children. Id., 530 U.S. at 66, 120 S. Ct. at2060. Further, the Court recognized "a presumption that fit parents act in the best interests of their children[,]" and as such,

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, 120 S. Ct. at 2061 (citing Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993)).

In Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), our Supreme Court discussed the impact of Troxel on Kentucky's grandparent visitation statute, KRS 405.021(1), which states in pertinent part, "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." The Walker Court upheld the constitutionality of the statute, but emphasized that for the statute to comport with Troxel, courts must presume that a fit parent acts in his or her child's best interest:

When considering a petition for grandparent visitation, the court must presume that a fit parent is making decisions that are in the child's best interest. "[T]he Due Process Clause does not permit a [s]tate to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made." So long as a parent is fit, "there will normally be no reason for the [s]tate to inject itself into the private realm of the family to furtherquestion the ability of that parent to make the best decisions concerning the rearing of that parent's children." So a fit parent's wishes are not just a factor to consider in determining what is in the child's best interest. 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).

Walker, 382 S.W.3d at 870-71 (footnotes omitted).

Essentially, in a grandparent visitation dispute, a parent and grandparent are not on equal footing, and a parent's decision to deny visitation is given special weight. Furthermore, the Walker Court explained that because a fit parent is presumed to act in the best interest of the child, a grandparent seeking visitation against a parent's wishes must overcome the presumption by clear and convincing evidence. Thus, for a court to grant visitation over the wishes of the parents, the grandparents must establish compelling evidence, that is, clear and convincing, that visitation is in the child's best interest. Id. at 871. 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. "Given that these cases involve the fundamental right of parents to raise their children as they see fit without undue interference from the state, the use of the [clear and convincing] heightenedstandard of proof is required." Vibbert v. Vibbert, 144 S.W.3d 292, 295 (Ky. App. 2004).

While "best interest" is a broad term, the Walker Court adopted a nonexclusive list of factors, which initially were delineated by this Court in Vibbert, for a trial court to consider when grandparent visitation is sought. 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; and

7) the wishes and preferences of the child.

Walker, 382 S.W.3d at 871. Moreover, Walker added an additional factor: "the motivation of the adults participating in the grandparent visitation proceedings." Id.

Chief among these factors is a consideration of the effect that granting non-parent visitation would have on the child's relationship with his parents. In Troxel, the Court noted that "[t]he extension of statutory rights in this area to persons other than a child's parents . . . comes with an obvious cost. For example, the [s]tate's recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship." Id., 530 U.S. at 64, 120 S. Ct. at 2059. The Kentucky Supreme Court has recognized that this reasoning is especially true where animosity exists between the parent and grandparent. Walker, 382 S.W.3d at 872. "Grandparent visitation should not be granted if it is clearly detrimental to the parent-child relationship." Id. In Grayson v. Grayson, 319 S.W.3d 426 (Ky. App. 2010), a trial court granted limited grandparent visitation over the vehement objection of the parents. The paternal grandmother therein had exhibited extreme vitriol toward her daughter-in-law and, perhaps to a lesser degree, toward her son. In reversing the decision of the trial court, this Court held,

[T]he state of discord prevailing here is far more than a "trivial disagreement" and exceeds the bounds of a "family quarrel of little significance." Requiring a child to have visitation with a grandparent who has extreme animosity toward the child's parent would be inherently unhealthy for the child and would potentially undermine the relationship between the child and its parent. . . . We respect the views of the distinguished trial court. If this case were governed by an abuse of discretion standard, we might be inclined to uphold the judgment ofvery limited visitation between Appellee and her grandchildren. We discern an endeavor by the trial court to preserve a thread in the torn fabric of this family. But this was not a discretionary ruling by the trial court. The court was required to apply KRS 405.021 and determine whether visitation was affirmatively proven by clear and convincing evidence to be in the children's best interest. Applying this standard, we can reach no conclusion other than that the trial court erred as a matter of law in its conclusions and judgment upon the evidence.

Id. at 432 (quoting King v. King, 828 S.W.2d 630 (Ky. 1992), overruled by Walker, 382 S.W.3d at 870).

The Court in Walker further answered the question as to whether clear and convincing proof of a loving relationship between a grandparent and grandchild alone is enough to overcome the parental presumption:

Except in special circumstances, it is not enough. . . . If the only proof that a grandparent can present is that they spent time with the child and attended holidays and special occasions, this alone cannot overcome the presumption that the parent is acting in the child's best interest. The grandparent must show something more—that the grandparent and child shared such a close bond that to sever contact would cause distress to the child. Again, these determinations are fact-intensive. To allow visitation on a lesser showing would put fit grandparents on equal footing as fit parents, which violates the Due Process Clause.

Walker, 382 S.W.3d at 872 (footnote omitted); see also Goodlett v. Brittain, 544 S.W.3d 656, 662 (Ky. App. 2018) (explaining that in making this determination, "the mere existence of a close relationship between the grandparents and thechildren, or the fact that the children lived in the grandparents' home for a time, will not always be sufficient to overcome the parental presumption." (Citation omitted.)).

With that said, we now turn to the case at hand. When Steven decided to prohibit John and Sharon from visiting with D.C. and P.C. in January 2019, it was several months after Sharon had accused him of allowing the "women in [his] life to drag [him] around...