LOIS SCHROEDER POSEY and ROBERT B. POSEY v. ALINE ANTOINETTE PORET POWELL
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RENDERED:
March 27, 1998; 10:00 a.m.
TO BE PUBLISHED
NO. 96-CA-002842-MR
LOIS SCHROEDER POSEY and
ROBERT B. POSEY
APPELLANTS
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 96-CI-0018
v.
ALINE ANTOINETTE PORET POWELL
and ROBERT JAMES POSEY, SR.
APPELLEES
OPINION
REVERSING AND REMANDING
*
BEFORE:
*
*
*
*
EMBERTON, HUDDLESTON and JOHNSON, Judges.
JOHNSON, JUDGE:
Lois Schroeder Posey and Robert B. Posey (the
Poseys) have appealed from a judgment of the McCracken Circuit
Court entered on August 12, 1996, which dismissed their petition
for
custody
of,
and
their
motion
for
visitation
grandchild, Robert James Posey, Jr. (B.J.).
with,
their
The dismissal was
based upon the trial court's determination that the Poseys lacked
standing to seek such relief.
We reverse and remand.
The facts necessary for an understanding and resolution
of the legal issue presented by this appeal are neither complex nor
in dispute.
The Poseys are the parents of Robert James Posey, Sr.
(Robert), who, from 1990 until 1995, cohabited with, but never
married, the appellee, Aline Antoinette Poret Powell (Toni).
On
July 4, 1992, B.J. was born to Toni and Robert in New Orleans,
Louisiana.
The Poseys were present for B.J.'s birth and helped
Toni and Robert move to Kentucky when B.J. was a few weeks old.
For the next three years, the Poseys were the primary
caretakers of B.J.1
Toni and Robert stopped living together and
ended their relationship in June 1995.
On January 9, 1996, the
Poseys filed a petition for temporary and permanent custody of B.J.
They alleged that they had taken care of B.J. since he was ten days
old, that Toni had visited with the child for only a total of 51
days in 1995 and fewer days than that in previous years, and that
the child had serious medical problems requiring ongoing treatment
that they were accustomed to providing him.
On January 13, 1996, Toni married Randy Powell. Toni and
her
husband
moved
to
Marshall
County,
obtained
an
unlisted
telephone number, and decided to eliminate any contact between B.J.
and the Poseys.
The Poseys responded by moving the trial court for
visitation with B.J.
Toni moved to dismiss both the custody
petition and the motion for visitation on the ground that the
Poseys lacked standing to proceed as paternity of B.J. had not been
established.
A hearing on the issue of visitation was conducted before
the Domestic Relations Commissioner (the Commissioner) on June 26,
1
The parties do not agree on how much time B.J. spent with the
Poseys, but even by Toni's account, it was considerable.
She
testified that she worked during this period and because she and
Robert could not afford day care, the Poseys had daily responsibility for B.J. She also acknowledged that the Poseys frequently took
B.J. to the doctor and kept him overnight because his medical
condition required that he not be moved a lot.
-2-
1996.
Although Toni acknowledged before the Commissioner that
Robert was the father of B.J., she renewed her motion to dismiss
for lack of standing.
In his recommendations, the Commissioner
concluded in part as follows:
(1)
The Court has jurisdiction of the
parties and the child, the subject matter of
this action.
(2) Due to the close relationship between
the paternal grandparents and the child, they
should have regular visitation with the child.
. . . In rea[ch]ing this conclusion[,] it is
determined that the child will benefit from
the maintena[n]ce of his relationship with the
[Poseys], and, therefore, it is in his best
interest that grandparent visitation be permitted.
(3) Due to the refusal of any visitation by
Respondent, Toni Powell, between the child and
Petitioners, and the a[n]imosity resulting
from the Petitioner’s [sic] filing this action
for custody, the parties should be required to
attend the extended LEEP [Life Skills Education to Empower People] program and demonstrate to the Court that they have done so.
(4) At the specific request of Respondent,
Toni Powell, for a ruling on her motion to
dismiss, it is concluded that her motion
should be overruled as she admitted that: (a)
Robert James Posey, Sr., is the father; and
(b) the information on the Louisiana certificate of live birth is correct as to the
natural father.
Toni filed exceptions to the Commissioner's recommendations alleging that the Poseys had no standing to seek custody or
visitation and that visitation was not in B.J.'s best interest.
The trial court agreed with her first contention and granted her
motion to dismiss the petition for custody and motion for visitation. The trial court specifically determined that as paternity of
B.J. had not been established pursuant to KRS 406 et seq., the
-3-
Poseys "have no legal relationship with the child in this action
and therefore are prohibited from filing any petitions for custody
or visitation" (emphasis added).
The issue presented by the Poseys on appeal is whether
putative
grandparents
have
standing
to
pursue
the
rights
of
reasonable visitation under KRS 405.021, and custody under KRS
Chapter 403.
The grandparent visitation statute reads as follows:
(1) 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.
Once a grandparent has been
granted visitation rights under this
subsection, those rights shall not be
adversely affected by the termination of
parental rights belonging to the grandparent's son or daughter, who is the
father or mother of the child visited by
the grandparent, unless the Circuit Court
determines that it is in the best interest of the child to do so.
KRS 405.021(1).
It is apparent to this Court that this statute
clearly and plainly extends visitation rights to any and all
grandparents regardless of whether their grandchild was born in or
out of wedlock, and regardless of whether his or her paternity has
been
legally
established.
Stated
differently,
there
is
no
requirement in the statute that a biological grandparent of a
grandchild born out of wedlock obtain a court order establishing
paternity before moving the circuit court for visitation.
trial
court's
imposition
of
this
burden
on
the
Poseys
The
was,
therefore, erroneous as a matter of law.
In construing our statutes we must "ascertain and give
effect to the intent of the General Assembly.
-4-
We are not at
liberty to add or subtract from the legislative enactment nor
discover meaning not reasonably ascertainable from the language
used." Beckham v. Board of Education of Jefferson County, Ky., 873
S.W.2d 575, 577 (1994).
See also Department of Corrections v.
Courier-Journal and Louisville Times, Ky. App., 914 S.W.2d 349
(1996).
Clearly, it is not our function to "add words and meaning
to a statute that is clear on its face."
735 S.W.2d 333, 335 (1987).
Cole v. Thomas, Ky. App.,
In Cole this Court declined to
construe KRS 405.021 to extend visitation rights to great-grandparents.
Instead, it held that the statute gave the right "to file
such a petition to four people, the child's four grandparents."
Id. at 334-335.
By requiring the existence of a "legal relationship" in
addition to the biological one commonly associated with the term
"grandparent," the trial court has changed the meaning of the
statute to exclude putative grandparents.
exception
to
the
statute
so
as
to
It has added words of
preclude
the
exercise
of
visitation rights by a grandparent whose child, for whatever
reason,
has
not
had
the
paternity
of
the
grandchild
legally
established. We believe if the Legislature had intended to make an
exception for putative grandparents, it would have followed the
example
of
other
states
that
have
so
provided.
Examples
of
legislation requiring that paternity be established in order to
confer standing on a party seeking visitation include Ohio Revised
Code
Annotated,
2
§§
3109.11-3109.12,2
New
Hampshire
Statutes
Subsection (A) of § 3109.2 reads in part as follows:
If a child is born to an unmarried woman, the
-5-
Annotated, § 458:17-d,3 and Nebraska Revised Statutes, § 43-1802.4
However,
as
the
Legislature
made
no
such
exception,
we
must
"presume[] [it] intended to make none." Bailey v. Reeves, Ky., 662
S.W.2d 832, 834 (1984).
We follow the intent of the Legislature that is evidenced
from the plain words employed--”paternal or maternal grandparents
of a child”--and from the evolution of the statute since its
passage in 1976, which has increasingly broadened the class of
those having standing,5 in holding that the Poseys are among those
grandparents KRS 405.021 endows with standing to petition for
reasonable visitation with their grandchild.
parents of the woman and any relative of the
woman may file a complaint requesting . . .
VISITATION rights with the child. If a child
is born to an unmarried woman and if the
father of the child has acknowledged the child
and that acknowledgment has become final . . .
the father, the parents of the father, and any
relative of the father may file a complaint
requesting . . . VISITATION rights with
respect to the child.
3
Subsection IV of this statute reads: “If the parent of the
minor child is unwed, then any GRANDPARENT filing a petition under
this section shall attach with the petition proof of legitimation
by the parent. . . .”
4
Subsection (1) provides in part as follows: “A grandparent
may seek visitation with his or her minor grandchild if: . . . (c)
The parents of the minor child have never been married but
paternity has been legally established.”
5
Originally, grandparents could seek visitation of their
grandchild only when the child’s parent was deceased. In 1984, the
statute was amended to extend visitation to grandparents when the
parent or parents of the child are not deceased.
In 1996, the
statute was again amended to allow continuation of visitation
following the termination of parental rights. These changes dispel
Toni’s argument that the rights conferred upon grandparents are
derived from and are contingent upon the continuation of the
parent-child relationship.
-6-
In her brief, Toni argues that a person petitioning for
visitation under KRS 405.021, "must prove that they fall within the
category of either paternal or maternal grandparents."
We agree
that where paternity of a child is at issue, proof that the
petitioner
is
in
fact
a
maternal
or
paternal
grandparent
is
necessary before visitation can be awarded. However, Toni confuses
the
issue
paternity.
of
first
standing
with
a
petitioner's
burden
of
proving
Standing concerns the right to bring an action in the
instance.
The
burden
of
proof
concerns
necessary to prevail on the merits of the action.
the
evidence
We reiterate,
the Legislature has not restricted standing to a grandparent whose
grandchild's paternity has been previously established.
admitted that Robert is B.J.'s father.
Toni
Thus, the proof before the
Commissioner was uncontested that the Poseys are B.J.'s paternal
grandparents.6
Toni further contends that even if the Poseys have
standing to seek visitation or custody, they cannot establish their
relationship to B.J. as their proof did not conform to that
6
Toni has never disputed that the Poseys are the biological
grandparents of B.J. She has never suggested that someone other
than the Poseys' son, Robert, is the father of B.J. and positively
testified, although reluctantly, that Robert is the father of B.J.
Her argument has consistently been that Robert's failure to take
the steps necessary to have his relationship legally established
prevents the Poseys from seeking to exercise their visitation
rights.
In addition to Toni's admission of paternity, the
Commissioner had considerable testimony before him to support his
finding that the Poseys are B.J.'s grandparents including the
following: (1) The child was conceived and born during the time
Toni and Robert cohabited; (2) The child was named after Robert;
(3) Robert is listed as the father on the child's birth certificate; (4) The Poseys were invited to travel to Louisiana for B.J.'s
birth; and (5) The Poseys had been allowed to care for B.J. since
his birth and relate to him as though they were his grandparents.
-7-
required by KRS 406.021, the Uniform Paternity Act.
This statute,
as noted in Sumner v. Roark, Ky. App., 836 S.W.2d 434, 438 (1992),
"gives the mother, child, person or agency substantially contributing to the support of the child a remedy to compel support for the
illegitimate child."
As the Poseys point out however, neither
compliance with KRS 406.021, nor its proof requirements, are
necessary to obtain custody by a natural parent.
Id.
Just as a
putative father may petition for and obtain custody with "reliable
evidence that he is the father," and do so without going through
the "rocky shoals of juvenile court," id. citing Sweat v. Turner,
Ky., 547 S.W.2d 435, 437 (1976), putative grandparents may, with
reliable evidence, establish their entitlement to visitation or
custody rights.
Again, we feel constrained to point out that there has
never been a question about the biological relationship between the
Poseys and B.J.
Since there was no factual issue regarding
paternity, to have required a district court order of paternity
would have been not only a waste of judicial resources, but it
would have punished the grandparents for their child's disinterest
in asserting his parental rights.
Indeed, under the trial court's
determination that a "legal relationship" is required in order to
confer standing to seek visitation or custody, those couples living
together without the benefit of marriage would be able to frustrate
the Legislature's grant of such rights, whereas those couples who
are married could not.
Fortunately for the Poseys and other
similarly situated grandparents, in this jurisdiction, a grandparent is not to be deprived of standing to prove that visitation or
-8-
custody is in the grandchild's best interest merely because the
grandchild's paternity remains to be determined.
Next, we hold that the trial court erred in dismissing
the Poseys’ petition for custody.
It reasoned that in order to
succeed, the Poseys “must first be, in the eyes of Kentucky law,
grandparents and they must also allege and prove unfitness” of
Toni.
The trial court concluded that the Poseys’ petition failed
to allege that Toni was an unfit parent and that the Poseys did not
have a legal relationship with B.J., both of which precluded them
from proceeding. We have reviewed the petition filed by the Poseys
and disagree that it is lacking in allegations sufficient to
proceed on the merits of the custody issue.
Although the Poseys
did not specifically state that Toni is “unfit,” they did make
allegations which, if proven, would support a finding that she is
“unfit,” see Davis v. Collinsworth, Ky., 771 S.W.2d 329 (1989),
and/or that she has waived her superior right to custody.
See
Greathouse v. Shreve, Ky., 891 S.W.2d 387 (1995), and Shifflet v.
Shifflet, Ky., 891 S.W.2d 392 (1995).7
Finally, the lack of a
“legal relationship” does not deprive a relative from seeking
7
The petition reads in pertinent part as follows:
The Petitioners have had the child’s exclusive
custody between July, 1992, and the present
date [January 8, 1996]. The Respondent, Aline
Antonette Poret, has failed to provide support
for the child and has relied entirely on the
Petitioners to provide for the child’s day to
day care, protection, and medical care and
treatment. The child has serious respiratory
problems which has [sic] been diagnosed as
asthmatic bronchitis for which the Petitioners
have obtained treatment and continue to provide for his treatment on a daily basis.
-9-
permanent custody where, as here, the party seeking custody has de
facto custody.
See Williams v. Phelps, Ky. App., ___ S.W.2d ___
(February 6, 1998).
Accordingly, the judgment of the McCracken Circuit Court
is reversed and this matter is remanded for further proceedings on
the motion for visitation and the petition for custody.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE, Aline
Antoinette Poret Powell:
Hon. Robert C. Manchester
Paducah, KY
Hon. Gary R. Haverstock
Hon. Michael M. Pitman
Murray, KY
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