Opinion
NO. 2015-CA-000383-ME
02-12-2016
JEFF DALE ASHBY and LORI ASHBY APPELLANT v. STEVE HAWKINS and PATRICIA HAWKINS APPELLEE
BRIEF FOR APPELLANT: Jonathan L. Sacks Bowling Green, Kentucky BRIEF FOR APPELLEE: Jason C. Hays Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE MICHAEL L. MCKOWN, JUDGE
ACTION NO. 12-CI-00041 OPINION
VACATING AND REMANDING BEFORE: COMBS, KRAMER, AND STUMBO, JUDGES. COMBS, JUDGE: Jeff Ashby and Lori Ashby appeal the order of the Butler Circuit Court which granted grandparent visitation to Steve and Patricia Hawkins. After our review, we vacate and remand.
Patricia is Jeff's natural mother. On March 21, 2012, she and Steve filed a motion seeking grandparent visitation with the Ashbys' two daughters. The Ashbys lived in West Virginia, and the Hawkinses lived in Butler County. The parties entered into an agreed order setting visitation on December 3, 2012. Visitation was conducted according to that agreed order for several months.
Jeff and Lori are no longer married. We refer to them as the Ashbys for the sake of context.
Jeff and Lori later separated. Jeff moved back to Kentucky with the older daughter, and Lori remained in West Virginia with the younger child. They were concerned about their own visitation with the children. And so on May13, 2014, they filed a motion to have the Hawkinses' visitation discontinued or significantly reduced.
Jeff's and Lori's dissolution decree was entered on September 10, 2014. The trial court held a hearing on September 15 and October 31, 2014, to determine the issue of grandparent visitation. On February 6, 2015, the trial court entered an order which reduced the Hawkinses' time with the children. Now the Ashbys appeal, seeking termination of the visitation.
The Ashbys' first argument is that the trial court failed to apply the correct standards regarding the burden of proof. Our review of the appropriate standard is de novo. Walker v. Blair, 382 S.W.3d 862, 867 (Ky. 2012).
Grandparents are granted the right to visitation by KRS 405.021(1): The Circuit Court may grant reasonable visitation rights either to the paternal or to the maternal grandparents of a child and may issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so.
Kentucky Revised Statutes. --------
Our courts have established criteria for a circuit court to utilize in order to ascertain the best interest of a child. The Supreme Court of the United States has held that statutes authorizing grandparent visitation may not infringe upon the fundamental right of a fit parent to make decisions for his or her children. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 49 (2000). "A fit parent's decision must be given deference by the courts, and courts considering the issue must presume that a fit parent's decision is in the child's best interest." Vibbert v. Vibbert, 144 S.W.3d 292, 294 (Ky. App. 2004). (Emphasis added). The grandparents bear the burden of rebutting the parental presumption of best interest. Walker v. Blair, 382 S.W.3d at 875. Walker provides several factors for courts to consider, which include:
1) the nature and stability of the relationship between the child and the grandparent seeking visitation;Id. at 871.
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;
8) the motivation of the adults participating in the grandparent visitation proceedings.
In this case, the court stated in its order that "the burden of proof for the final hearing shall be the best interest of the child." Because the motion before it was to modify an existing custody agreement, the court stated: "the Ashbys bear the burden to show a change in circumstances that warrants the modification . . . and that [it] will be in the children's best interest . . . ." Essentially, the court found that the Ashbys had waived the right to seek termination of grandparent visitation because they had previously consented to it. The trial court explained its reasoning in a footnote as follows:
The Court of Appeals, in Murry v. Murry, Ky. App., 418 S.W.3d 432 (2014), addressed a parent's motion to effectively terminate the grandparents' visitation rights. Id. at 434. While the Court noted that grandparent visitation is modifiable upon a showing of a change of circumstances, id. at 435, it failed to elaborate beyond "best interest" as to the proper standard for modification of grandparent visitation. The unpublished case of Bailey v. Turner, Ky. App., No. 2006-CA-000277-ME, 2006 WL 3691189 (Dec. 15, 2006); see CR 76.28(4), addressed a parent's motion to terminate/reduce grandparent visitation. When discussing modification of visitation, the Court cited both KRS 403.320(3)'s and Vibbert's modified best interest standards. Id. at *3. While "constitutional issues are relevant to a motion to modify to the same extent as they were under the original motion to grant visitation," id. at *2, this language from Bailey was not in reference to the Walker presumptions, but rather to the parent's choices as to the child's religious and extracurricular activities which the grandparent was ignoring. Id. at *3. (citations in original).
We have closely examined Murry, in which this Court held that courts possess sweeping jurisdiction to modify existing grandparent visitation orders. We emphasized the superior nature of parents' constitutional rights to those of grandparents. However, we did not discuss the best interest standard because we remanded for adequate findings. We were unable to analyze the trial court's reasoning and standard. Because that standard was not at issue, there was no basis for us to raise it sua sponte. Thus, Murry provides little guidance in the case before us.
Similarly, the unpublished case of Bailey is not helpful. Because it was rendered six years prior to Walker, Bailey gives no interpretation of the Walker criteria by which we are now bound. However, although Bailey is neither on-point nor authoritative, it points out that: "[t]he constitutional issues are relevant to a motion to modify to the same extent as they were under the original motion to grant visitation." Id. at *2. Constitutional issues are at the heart of the presumption that a fit parent's decision is correct.
Recently, this Court decided Waddle v. Waddle, 447 S.W.3d 653 (Ky. 2014), which is analogous to the case before us. In Waddle, the mother sought to modify the grandparents' visitation, which was being conducted pursuant to an agreed order. We reversed because the court merely used the best-interest-of-the- child standard and "did not give special weight to [the mother's] objection as a parent" to the grandparent visitation. Id. at 654.
We are compelled to conclude that the trial court committed reversible error in this case when it shifted the burden to the Ashbys and proceeded pursuant to best-interest-of-the-child standard without granting due deference to the parents' decisions. We also note that we have recently held that "the trial court clearly erred in finding that [a parent] could not object to entry of a visitation order merely because he never entirely denied visitation to [grandparent]." Fairhurst v. Moon, 416 S.W.3d 788, 792 (Ky. App. 2012). Thus, the trial court's finding of waiver was also erroneous.
We hold that the court did not apply the proper standard. Thus, we are unable to address the arguments regarding the substance of its findings. We vacate and remand for further proceedings applying the Walker criteria.
ALL CONCUR. BRIEF FOR APPELLANT: Jonathan L. Sacks
Bowling Green, Kentucky BRIEF FOR APPELLEE: Jason C. Hays
Bowling Green, Kentucky