Monthly Archive: October 2012

Oct 25

Grandparent Visitation Versus Parental Rights

A recent Kentucky Supreme Court case has clarified the constitutional rights a grandparent has to force visitation with a grandchild over the objection of a parent. In Walker v. Blair the Kentucky Supreme Court interpreted the United States Supreme Court’s holding in Troxel v. Granville.In the case of Troxel v. Granville, the United States Supreme Court stated 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.” The Supreme Court also made it clear that this fundamental right is implicated in grandparent visitation cases.

Similar to many states, the Kentucky legislature has created a statute, KRS 405.020 (1) which allows a grandparent to petition the court for a visitation schedule with their grandchild, over the objection of the grandchild’s parents. Because the Troxel decision, though published in 2000, had not been expressly applied by the Kentucky Supreme Court, there was some confusion in how the trial court should apply it. The Walker decision clarified application of Troxel to KRS 405.020 (1), and held that a line of cases founded upon the decision in King v. King were, in light of Troxel, bad law.

The holding in the Walker court is generally favorable to parents, without closing the door to grandparent visitation over the parent’s objection. The holding of the Walker decision is as follows:

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.”[24] 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 further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”[25] So a fit parent’s wishes are not just a factor to consider in determining what is in the child’s best interest.[26] 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).

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.

A trial court can look at several factors to determine whether visitation is clearly in the child’s best interest. The Vibbert court laid out many of these factors, including:

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.

To this list, we add:

8) the motivation of the adults participating in the grandparent visitation proceedings.

The motivation of the parent in prohibiting visitation and the motivation of the grandparent in pursuing visitation are factors that can be used to determine the child’s best interest.

And so, based on the above, it is clear that parents are presumed to be fit, and the wishes of a fit parent with regard to grandparent visitation are presumed to be in the best interest of the child. A grandparent seeking court ordered visitation must overcome that presumption.

If you have a grandparent visitation issue, seek the advice of counsel.

Oct 01

Who does not love a dog?

Well, for one a child who has permanent facial scarring as a result of an unexpected dog bite.

Dog bite cases are always sad. The most common victim in such cases are children, who in addition to losing trust in “man’s best friend,” are often left permanently scarred, psychologically and physically, and often suffer through months of multiple surgeries, lost school, and absent friends, in an attempt undo the damage.

It is important for a victim of a dog bite, or the parent of a victim, to understand that, in many cases, the dog is associated with a home; sometimes the home is owned by the person who owned the dog; sometimes the home is merely rented and the dog is owned by a tenant. Unlike car wrecks, where auto insurance is present to cover the damage, in most dog bite cases, the homeowner, and thus homeowner’s insurance, is looked to to compensate the victim. In addition to homeowner’s insurance, one should be aware of the tenant’s potential, additional, liability and ascertain whether they carried renters insurance, and in the case landlord liability, whether the landlord carries multiple homeowner policies which might be stacked or added together to achieve a greater potential recovery for the victim.

In Benningfield v. Zinsmeister, 367 S.W.3d 561 (Ky. 2012) the Kentucky Supreme Court clarified landlord liability for dog bites. The Benningfield decision is generally favorable to victims. It clarified that even if a landlord does not actually “own” the dog that bites, they are considered to be its “owner” if the dog was actually owned by the tenant and the landlord was aware the dog was being kept on the premises. It further clarifies that owners of a dog that bites are strictly liable to the victim, under statute, if the dog bites while on or near the property of the owner.

Due to the potential for overlapping liability and insurance coverage, it is recommended that if you or your child has been the victim of a dog bit, you should seek the advice of a lawyer.