Grandparents, de facto Child Custody and Guardianship in Kentucky

Recently, someone asked if grandparents have “rights” in Kentucky.  My answer was as follows:

“Grandparents do not have any “rights” in Kentucky.  Since the Supreme Court handed down Troxel v. Washington (Granville), the only people who have rights with regard to children are the parents of the children.

Grandparents can obtain a Court ordered relationship with their children in three (3) basic ways.

Grandparents may become de facto custodians.  In Order to persuade a Court that one is a de facto custodian, the party (grandparent in this case) making the claim must demonstrate that they provide more than half of the financial support and temporal care (parenting time) for the child or children in question.  If the child is under three (3), then the care must have been continuous for six (6) or more months.  If the child is over the age of three (3), then the care must have been continuous for one (1) or more years.

A Grandparent may seeking an Order enforcing a grandparenting schedule with their grandchild.  To obtain grandparenting time, the grandparent must demonstrate that the time is in the best interest of the grandchild over the objections of one (1) or both parents.  This sounds easy, but is not.  If both parents provide reasonable care for the child and objection to grandparenting time, then the weight of the case is that the parents are making decisions in the best interest of the child.  Often times, the input of a forensic psychologist is required to overcome the presumption.

Finally, a Last Will and Testament may designate a Grandparent a Guardian of a child.  However, so long as one (1) parent survives, the Guardianship is very limited.  The law assigns to parents the status of custodian, which trumps any guardianship assigned by a Probate Court.”

It is an interesting question because the structure of families often defy the confines of our statutory scheme.  I began to practice before Troxel was handed down.  Standing before the Court as to who has custody rights to children was much more broad in Kentucky.  Family Court recognized that the needs of children were met by more than the parents in some families.  Troxel defined “rights” much more narrowly.  The General Assembly and Family Court has struggled with the right way to balance reality and the confines of the law.