BOBBY VIBBERT, JR. AND LAURA VIBBERT v. BOBBY VIBBERT, SR. AND DOROTHY VIBBERT
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RENDERED:
August 27, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2002-CA-002348-MR
BOBBY VIBBERT, JR.
AND LAURA VIBBERT
APPELLANTS
APPEAL FROM METCALFE CIRCUIT COURT
HONORABLE PHILIP R. PATTON, JUDGE
ACTION NO. 02-CI-00030
v.
BOBBY VIBBERT, SR.
AND DOROTHY VIBBERT
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
THE COURT SITTING EN BANC
TACKETT, JUDGE:
Bobby Vibbert, Jr., and his wife Laura Vibbert
(hereinafter "Parents") appeal from the decision of the Metcalfe
Circuit Court awarding visitation to Bobby Vibbert, Sr.,
("Grandfather") and his wife Dorothy with the Parents' minor
child against the Parents' express wishes.
The Parents claim
that the circuit court did not follow the established precedent
of this Court's decision in Scott v. Scott, Ky. App., 80 S.W.3d
447 (2002), in applying Kentucky Revised Statutes (KRS) 405.021.1
Specifically, the Parents argue that the circuit court did not
require Grandfather to carry the burden of proof by clear and
convincing evidence that harm would result to the child from the
Parents' limitation of grandparent visitation.
Revisiting the
precedent in Scott, we overrule Scott, vacate and remand the
matter for reconsideration in light of the new standard
announced below.
The Parents refuse to allow Grandfather and his wife
to visit their child, allegedly as a result of an altercation
that occurred on Christmas Eve, 2001, which resulted in the
child’s being placed in the temporary custody of Grandfather
until January 2, 2002.
Grandfather and his wife sought an order
requiring visitation from the Metcalfe Circuit Court.
The
matter came to a hearing on May 29, 2002, before a domestic
1
(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.
(2) The action shall be brought in Circuit Court in the county in
which the child resides.
(3) The Circuit Court may grant noncustodial parental visitation
rights to the grandparent of a child if the parent of the child who is
the son or daughter of the grandparent is deceased and the grandparent
has assumed the financial obligation of child support owed by the
deceased parent, unless the court determines that the visitation is
not in the best interest of the child. If visitation is not granted,
the grandparent shall not be responsible for child support.
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relations commissioner (DRC).
The DRC granted Grandfather's
request for visitation, but held that Dorothy, being a stepgrandparent, had no visitation rights.
Parents filed exceptions
and challenged the constitutionality of KRS 405.021 as applied
to their case.
The Attorney General declined to intervene.
The
circuit court did not modify the findings of fact, but remanded
to the DRC for further proceedings consistent with Troxel v.
Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)
and Scott v. Scott, supra.
The DRC tendered findings which
stated that
[t]here was no direct evidence presented at
the hearing which showed that a deprivation
of this relationship would result in harm to
the child. However, the commissioner is of
the belief that common sense and experience
must be a part of any decision regarding the
welfare of children and that common sense
dictates that when the child and his
grandfather have spent as much time as they
have spent together since birth, the
evidence is clear and convincing that a
sudden termination of contact will be
harmful to the child.
The circuit court signed the order, and this appeal followed.
At the outset of our analysis, we must note that the
Appellees have filed no brief with this Court.
We decline to
take this omission as a confession of error, however, and
proceed with our review normally.
The Parents raise several grounds of appeal.
They
assert that KRS 405.021(1) is unconstitutional as applied to
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them.
This Court set the standard which must be used when
applying that statute in Scott v. Scott, supra:
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.
Scott at 451.
The Parents argue that the grandfather must show
that the Parents are unfit before the circuit court can award
visitation over their objection.
The Parents also argue that
the DRC and the circuit court failed to require Grandfather to
carry his burden, instead relying on "common sense" to decide
the critical issue in the case, circumventing the requirements
of Scott.
As all these arguments are intertwined, we address
them together.
This case was considered by the Court sitting en banc,
and after careful consideration, we overrule Scott.
Scott
imposed an unworkable standard of proving by clear and
convincing evidence that harm to the child would result from
discontinuing the relationship between a child and a
grandparent.
We believe that the Scott court incorrectly
interpreted the Troxel case, supra, as requiring such a strict
standard, holding that the familiar "best interest" standard was
no longer constitutionally permissible.
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However, the Supreme
Court carefully avoided setting any such precedent in Troxel, as
the plurality opinion of the Court explicitly stated:
we do not consider . . . whether the Due
Process Clause requires all nonparental
visitation statutes to include a showing of
harm or potential harm to the child as a
condition precedent to granting visitation.
Troxel at 2064.
Nevertheless, this Court in Scott created a
standard which was, at the time, believed to satisfy the
requirements of Troxel.
It is the opinion of this Court now
that Scott set an unnecessarily strict and unworkable standard.
We believe that a modified "best interest" standard
can be used in cases where grandparent visitation is sought
within the constitutional framework of Troxel.
What Troxel
requires us to recognize is that a fit parent has a superior
right, constitutionally, to all others in making decisions
regarding the raising of his or her children, including who may
and may not visit them.
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.
Where we differ from Scott is in the method by which
grandparents may challenge that decision.
Scott allows only one
avenue for grandparents to challenge the decision, requiring
them to show by clear and convincing evidence that depriving the
child of visitation with the grandparent would harm the child.
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We believe this test to be too narrow, in that among other
things it does not adequately take into account a situation
where visitation is withheld by the parents out of
vindictiveness.
We now hold that the appropriate test under KRS
405.021 is that the courts must consider a broad array of
factors in determining whether the visitation is in the child's
best interest, including but not limited to:
the nature and
stability of the relationship between the child and the
grandparent seeking visitation; the amount of time spent
together; the potential detriments and benefits to the child
from granting visitation; the effect granting visitation would
have on the child's relationship with the parents; the physical
and emotional health of all the adults involved, parents and
grandparents alike; the stability of the child's living and
schooling arrangements; the wishes and preferences of the child.
The grandparent seeking visitation must prove, by clear and
convincing evidence, that the requested visitation is in the
best interest of the child.
We retain this standard of proof
from Scott, noting that the Supreme Court has mandated its use
when "the individual interests at stake in a state proceeding
are both particularly important and more substantial than mere
loss of money."
Santosky v. Kramer, 455 U.S. 745, 756, 102 S.Ct
1388, 71 L.Ed.2d 599 (1982)(citation omitted).
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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 this heightened standard of proof is required.
We vacate the decision of the circuit court and remand
the matter for consideration in light of the standard we have
announced above.
For the foregoing reasons, the judgment of the
Metcalfe Circuit Court is vacated and the matter remanded for
further consideration.
COMBS, CHIEF JUDGE; AND BARBER, BUCKINGHAM, DYCHE,
JOHNSON, KNOPF, McANULTY, MINTON, SCHRODER, TAYLOR, AND
VANMETER, JUDGES, CONCUR.
GUIDUGLI, JUDGE, CONCURS IN THE RESULT.
BRIEF FOR APPELLANTS:
NO BRIEF FOR APPELLEES
Vaughn Wallace
Coffman & Kirwan
Bowling Green, Kentucky
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