On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, November 8, 2012.

Whether or not a grandparent can file a court action for visitation or child custody with their grandchildren has been a closely watched issue in every state in the country. You should know that different states have different standards for allowing grandparent visitation, and that the law is still developing.

Under current case law in Florida, grandparents can be denied visitation with their grandchild by the child’s parents. This is true even if they had what most people would consider a classic grandparent-grandchild relationship; one involving regular visits. Many grandparents complain that they are treated as little better than strangers. This is a little ironic, as Florida has one of the largest populations of the elderly, and has by far the highest proportion of elderly citizens.

In 2000, the United States Supreme Court rendered an opinion to settle the issue for the entire country in the case of Troxel v. Granville. In Troxel the U.S. Supreme Court decided that parents have a fundamental liberty interest in the care, custody, and control of their children, and that a fit parent acts in the best interests of their children. However, the court did not define the precise scope of the parental due process right, the U.S. Supreme Court itself was divided on the issue, and left certain decisions for each U.S. state to decide for themselves.

Kentucky just decided. At the end of October, and in an opinion so new it’s not even published in the official reporter yet, the Supreme Court of Kentucky ruled:

The constitutional presumption that a fit parent acts in the child’s best interest is the starting point for a trial court’s analysis. 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.

This is a very different standard than what grandparents in Florida have. Kentucky authorizes grandparent visitation under a basic, best interest of the child standard. Florida adheres to a tougher standard, which requires showing of a compelling state interest to allow grandparent visitation rights over the objections of fit parents. In other word, grandparents have to show some of evidence of harm to the child as a basis for awarding grandparent visitation