King v. King

JAMES H. LUCAS, Special Justice.

The respondents, Stewart and Ann King, are husband and wife and are the parents of one child; a daughter, Jessica, born April 24, 1987. The movant, W.R. King, is Stewart’s father and Jessica’s paternal grandfather.

Until August of 1988, Stewart and his family lived in a house located upon Mr. King’s farm which he had built for them. Stewart was employed full time by the R.R. Donnelly Company in Danville, Kentucky, and also worked on the family farm. The home was provided rent-free and, in addition, Stewart received approximately $2,800 per year from the farm’s tobacco crop. Mr. King did not feel that Stewart was putting in enough hours on the farm and, subsequently, ordered him to move out of the house, which he and his family did. To summarize the testimony of the witnesses, Mr. King thought his son drank too much and did not do enough work, and Stewart and his wife thought his father was overbearing and intrusive.

While Stewart and his family were living on the farm, Mr. King had almost daily contact with Jessica for a period of some 16 months. After Stewart and his family were asked to leave, Mr. King requested that he be allowed to see Jessica. This request was denied by Stewart and his wife. Mr. King’s attorney then wrote a letter to the younger Kings,- again requesting visitation with the granddaughter, but again the request was denied.

Mr. King then filed a Petition for Visitation in the Boyle Circuit Court to which Stewart and Ann responded, generally denying the allegations of the petition and challenging the constitutionality of KRS 405.021. The attorney general declined to intervene. A hearing was held on November 16, 1988, at which time the court referred all of the parties, including Jessica, to the Comprehensive Care Center in Dan-ville, Kentucky, for evaluation, mediation and recommendation. After receiving the report of the Comprehensive Care Center, the court granted visitation by the grandfather with Jessica from 4 p.m. to 6 p.m. each Wednesday and Saturday. The respondents timely filed a motion to alter, amend or vacate, at which time a second hearing was held and the court heard further testimony from the respondents. On January 6, 1989, the court entered its finding of facts, conclusions of law and judgment, upholding the constitutionality of KRS 405.021 and finding that the best interest of the infant child, Jessica, would be served if her grandfather was granted visitation rights.

The respondents then appealed this matter to the Court of Appeals which did not reach the constitutional issue, but reversed the decision of the Boyle Circuit Court on the issue of the best interest of the child. Discretionary review was then granted by this Court.

Two issues are presented on appeal: first, the constitutionality of KRS 405.021; and second, if the statute is constitutional, did the trial court err in finding that the best interest of the child would be served by allowing the grandfather the right of visitation.

KRS 405.021 provides as follows:

REASONABLE VISITATION RIGHTS TO GRANDPARENTS. (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.

(2) The action shall be brought in Circuit Court in the county in which the child resides.

Counsel for the respondents vigorously argues that the statute in question constitutes an unwarranted intrusion into the liberty interest of parents to rear their children as they see fit. While not being all-inclusive, the Supreme Court of the United States in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), attempted to define the liberty interest protected by the Fourteenth Amendment of the Constitution of the United States as follows:

Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Id. at 399, 43 S.Ct. at 626.

While the Constitution, as interpreted by the various courts, does recognize the right to rear children without undue governmental interference, that right is not inviolate. Parents are required by law to see that their children are educated. Children must be inoculated against disease. Parents cannot abuse their children. Severe restrictions are placed upon the employment of children. Children must be restrained when riding in a motor vehicle. Thus, over the years, there has been increased legislation guaranteeing the safety, education, and the physical and emotional welfare of children. Under ordinary circumstance, few would dispute that there are benefits to be derived from the establishment of a bond between grandparent and grandchild. While it may be desirable for aunts and uncles and cousins to have a close relationship with each other, our General Assembly has seen fit to protect visitation only by grandparents, and then only if it can be demonstrated to be in the best interest of the child. Our courts have strictly interpreted this provision. The Court of Appeals refused to extend the right to great-grandparents in Cole v. Thomas, Ky.App., 735 S.W.2d 333 (1987), and this Court in Hicks v. Enlow, Ky., 764 S.W.2d 68 (1989), denied visitation by grandparents if the child had been adopted and when the parental rights of one of the parents had been terminated.

In an era in which society has seen a general disintegration of the family, it is not unreasonable for the General Assembly to attempt to strengthen familial bonds. As this Court observed in Hicks, supra, “the grandparents’ visitation statute was an appropriate response to the change in the demographics of domestic relations, mirrored by the dramatic increase in the divorce rate and in the number of children born to unmarried parents, and the increasing independence and alienation within the extended family inherent in a mobile society.” Id. at 70 and 71. There is no reason that a petty dispute between a father and son should be allowed to deprive a grandparent and grandchild of the unique relationship that ordinarily exists between those individuals. One of the main purposes of the statute is to prevent a family quarrel of little significance to disrupt a relationship which should be encouraged rather than destroyed.

As noted in Meyer, supra, “The established doctrine is that this liberty may not be interfered with under the guise of protecting the public interest by legislative action which is arbitrary or without reasonable relation to some purpose within the competence of the state to effect.” Id. 262 U.S. at 400, 43 S.Ct. at 627. However, it is not unreasonable for the state to say that the development of a loving relationship between family members is desirable and the arbitrariness of the statute is obviated by the requirement that visitation be granted by a court only after finding that it is in the best interest of the child.

“That the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected.” Id. at 401, 43 S.Ct. at 627. This statute seeks to balance the fundamental rights of the parents, grandparents and the child.

At common law, grandparents had no legal right to visitation, Jouett v. Rhorer, Ky., 339 S.W.2d 865, 868 (1960). However, the General Assembly determined that, in modern day society, it was essential that some semblance of family and generational contact be preserved. If a grandparent is physically, mentally and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent. That grandparents and grandchildren normally have a special bond cannot be denied. Each benefits from contact with the other. The child can learn respect, a sense of responsibility and love. The grandparent can be invigorated by exposure to youth, can gain an insight into our changing society, and can avoid the loneliness which is so often a part of an aging parent’s life. These considerations by the state do not go too far in intruding into the fundamental rights of the parents. Thus, we find that KRS 405.-021 is constitutional.

Central to our finding is the protection afforded the child, the parents and the grandparents. If the statute gave the grandparents the unrestricted right of visitation, there would be much less reluctance to declare it unconstitutional. But visitation cannot be granted until an action is filed in Circuit Court, a hearing conducted before a judge or commissioner, and findings of fact and conclusions of law entered finding that the best interests of the child will be served by granting or denying visitation. Fortunately, it is not a common occurrence for this statute to be called into play, but when it is, the parties are afforded ample protection to preclude either injustice or an unwarranted intrusion into the fundamental liberty of the parents and child.

In the instant case, there were two hearings and a psychological evaluation of all the parties before the trial court entered its decree. Jessica’s father testified that he had no qualms about his father’s ability to love and care for the child. The condition and safety of Mr. King’s home was never in issue as Jessica had been left there many times and there appeared to be no question that she would receive proper care during periods of visitation. There appears to be no valid reason that a trivial disagreement between a father and son should be allowed to deprive a grandparent and grandchild from developing the natural affinity so common between these family members.

For the reasons herein stated, the decision of the Court of Appeals is reversed and the order of the Boyle Circuit Court is reinstated.

STEPHENS, C.J., and COMBS, LEIBSON, and SPAIN, JJ., concur. LAMBERT, J., dissents with a separate opinion in which WINTERSHEIMER, J., joins.

WINTERSHEIMER, J., dissents with a separate opinion in which LAMBERT, J., joins.