RENDERED: MARCH 24, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0751-MR

BERTHA WAGONER APPELLANT 

v. 

APPEAL FROM LINCOLN CIRCUIT COURT

HONORABLE MARCUS L. VANOVER, JUDGE

ACTION NO. 20-CI-00100

JASON ERIC STULL; ASHLEE 

COTTRELL; AND LORI HENSLEY APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

THOMPSON, CHIEF JUDGE: Bertha Wagoner (“Appellant”) appeals from an 

order of the Lincoln Circuit Court denying her petitions for grandparent visitation. 

She argues that the circuit court erred in finding that her request for visitation with 

a grandchild was moot; that the court applied the wrong standard to establish 

grandparent visitation; and, that the court should have found that visitation with 

another grandchild was in that child’s best interest. She seeks an opinion reversing 
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the order on appeal and remanding the matter for further proceedings. After 

careful review, we find no error and affirm the order on appeal.

FACTS AND PROCEDURAL HISTORY

Jason Eric Stull (hereinafter referred to as Father) is the biological 

father of minor children C.E.S. (hereinafter referred to as Child 1) and D.A.S.

(hereinafter referred to as Child 2).1 Ashlee Cottrell is the mother of Child 1, and 

has had little or no contact with the child after Father was awarded custody of her

in a dependency, abuse, and neglect proceeding in August of 2013. Child 1 lives 

with Father and his wife in Jefferson County, Kentucky. Father shares joint 

custody of Child 2 with that child’s mother, Lori Hensley. Child 2 is estranged 

from Father and lives with Ms. Hensley and Appellant.

In concert with other proceedings,2 Appellant filed separate petitions

in Lincoln Circuit Court seeking grandparent visitation with both Child 1 and 

Child 2.3 The matter proceeded in the circuit court, and a hearing on the petitions 

1 Due to the nature of this proceeding, we will not use the names of the children.

2 Appellant was a caregiver of Child 1 for substantial periods of time during the child’s life, and 

sought to be recognized as de facto custodian of both children. As of the time the order on 

appeal was entered, Appellant did not have the status of de facto custodian of either child. 

3 Civil action No. 20-CI-00100 sought visitation with Child 2. Action No. 20-CI-00101 sought 

visitation with Child 1. The actions were consolidated via an agreed order entered on or about 

August 6, 2020, and thereafter practiced together as action No. 20-CI-00100.
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was conducted. On May 24, 2022, the court entered an order denying both 

petitions. 

In adjudicating the petitions, the circuit court found that Appellant had 

a significant relationship with Child 1 and provided care for Child 1 for substantial 

periods of time. Soon after Father was granted sole custody of Child 1, Child 1

began staying with Appellant and her husband for extended periods of time. 

Appellant argued in a separate de facto custody proceeding4that Father essentially 

abandoned Child 1. Father argued that he is a long-haul truck driver and stated 

that Appellant took care of Child 1 while he was travelling, and Appellant was 

merely providing temporary care during his travels. The circuit court determined 

that at the time of the hearing, Child 1 resided with Father and his wife in Jefferson 

County, Kentucky. It found that Child 2 was living in Lincoln County, Kentucky, 

with her mother and Appellant.

The circuit court determined that Appellant and Father each believed 

they were acting in the children’s best interests. It noted that Father believed

Appellant was overreaching and trying to undermine his parental authority. The 

court found that Appellant believed Father was acting out of spite. It found that 

4 On June 28, 2021, the Lincoln Circuit Court rendered an opinion and order denying Appellant’s 

petition to be recognized as a de facto custodian of Child 1. Appellant withdrew her petition for 

de facto custodian status as to Child 2 upon concluding that she could not establish the required 

elements for that status. The May 24, 2022 order now on appeal expressly incorporated by 

reference the findings set out in the June 28, 2021 order.
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Father and Appellant differed fundamentally on parenting decisions, including 

what Child 1 should eat.

The court went on to cite Kentucky Revised Statutes (“KRS”) 

405.021 as controlling on the issue of grandparent visitation. Pointing to Walker v. 

Blair, 382 S.W.3d 862 (Ky. 2012), and Pinto v. Robison, 607 S.W.3d 669 (Ky. 

2020), the court recognized the presumption that a fit parent makes decisions in a 

child’s best interest. It found that a grandparent seeking visitation must prove by 

clear and convincing evidence that he or she is entitled to visitation over the 

parent’s objection. 

The court then found that Appellant’s petition for visitation with Child 

2 was moot because Child 2 and her mother were already living with Appellant. It 

denied Appellant’s request for visitation with Child 1, upon concluding that 

Appellant did not meet her burden of proving that Father was not acting in Child 

1’s best interest. This appeal followed.

STANDARDS OF REVIEW

We will not disturb the circuit court’s findings of fact unless they are 

clearly erroneous. Kentucky Rules of Civil Procedure (“CR”) 52.01; Reichle v.

Reichle, 719 S.W.2d 442, 444 (Ky. 1986). We review questions of law de

novo. Nash v. Campbell County Fiscal Court, 345 S.W.3d 811, 816 (Ky. 2011). 
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ARGUMENTS AND ANALYSIS

Appellant argues that the circuit court erred in its conclusion that her 

petition for visitation with Child 2 is moot. She also asserts that the court 

committed reversible error in failing to grant her petitions for visitation with both 

children, as the facts clearly demonstrate that visitation is in the children’s best 

interests. Appellant directs our attention to the factors for considering a child’s 

best interests set out in Walker, supra, and argues that each of these factors 

supports a proper finding that the children’s best interests are served with 

grandparent visitation. In addition, Appellant argues that the circuit court should 

have considered the matter under a “preponderance of the evidence” rather than 

“clear and convincing” evidence standard. She seeks an opinion reversing the 

order on appeal, and remanding the matter with instructions to enter an order of 

visitation as to both children.

Grandparent visitation is addressed by KRS 405.021(1)(a), which 

states that, “[t]he 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.”5 The circuit court may apply KRS 405.021(1)(a) to establish grandparent 

5

In Pinto, supra, the Kentucky Supreme Court held that portions of KRS 405.021 were 

unconstitutional. It expressly held, however, that KRS 405.021(1)(a) remained in effect. “[W]e 

are leaving intact KRS 405.021(1)(a) . . . .” Pinto, 607 S.W.3d at 677.
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visitation “so long as the trial court complies with Walker in applying those 

subsections of the statute.” Pinto, 607 S.W.3d at 677. Walker, supra, states that

When considering a petition for grandparent 

visitation, the court must presume that a fit parent is 

making decisions that are in the child’s best interest. 

“[T]he Due Process Clause does not permit a [s]tate to 

infringe on the fundamental right of parents to make 

child rearing decisions simply because a state judge 

believes a ‘better’ decision could be made.” So long as a 

parent is fit, “there will normally be no reason for the 

[s]tate to inject itself into the private realm of the family 

to further question the ability of that parent to make the 

best decisions concerning the rearing of that parent’s 

children.” So a fit parent’s wishes are not just a factor to 

consider in determining what is in the child’s best 

interest. The constitutional presumption that a fit parent 

acts in the child’s best interest is the starting point for a 

trial court’s analysis under KRS 405.021(1).

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. The Vibbert [v. Vibbert, 144 S.W.3d 292 (Ky. 

App. 2004),] court laid out many of these factors, 

including:

1) the nature and stability of the relationship between 

the child and the grandparent seeking visitation;
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2) the amount of time the grandparent and child spent 

together;

3) the potential detriments and benefits to the child 

from granting visitation;

4) the effect granting visitation would have on the 

child’s relationship with the parents;

5) the physical and emotional health of all the adults 

involved, parents and grandparents alike;

6) the stability of the child’s living and schooling 

arrangements; and

7) the wishes and preferences of the child.

To this list, we add:

8) the motivation of the adults participating in the 

grandparent visitation proceedings.

Walker, 382 S.W.3d at 870-71 (footnotes and citations omitted). Distilled to its 

most essential elements, Walker 1) requires the circuit court to presume that a fit 

parent acts in the best interest of his or her child, and 2) places upon the 

grandparent seeking judicial intervention the heavy burden of providing clear and 

convincing evidence that visitation with the grandparent is in the child’s best 

interest. Id.

In the matter sub judice, the circuit court determined from the record 

and the parties’ testimony that Father is a fit parent who seeks to further his 

daughters’ best interests. Appellant offered countervailing evidence as to Father’s 
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fitness and motivation, arguing that in the past he had problems with alcohol and 

mental health issues. Appellant suggests that Father is motivated against Appellant 

by spite. These are factors which support Appellant’s contention that grandparent 

visitation is in Child 1’s best interest. The question for our consideration, 

however, is not whether the record would have supported a different result, but 

whether the record supports the conclusion reached. C.M.C. v. A.L.W., 180 S.W.3d 

485, 494 (Ky. App. 2005). The record supports the circuit court’s finding that 

Father is a fit parent who is motivated by his daughters’ best interests.

Under Walker, the question then becomes whether Appellant met the 

burden by clear and convincing evidence that grandparent visitation is in Child 1’s 

best interest. In examining this issue, the circuit court considered the Vibbert

factors set out in Walker, including the nature of the relationship between 

Appellant and the children; the amount of time they spent together; the potential 

detriments and benefits to the children from granting visitation; and, additional

other factors for determining the children’s best interests. The court found that 

Appellant had conflict with Father over decisions regarding Child 1 that Appellant 

believed she could make better. It found that this conflict would likely create with 

Child 1 negative impressions of Father’s parental role. Based on its finding that 

Father was a fit parent, and that Father and Appellant “differ[ed] fundamentally on 

parenting decisions,” the circuit court determined that Appellant did not 
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demonstrate by clear and convincing evidence that visitation was warranted. 

Because the record supports this conclusion, we find no error.

Appellant argues that the circuit court erred in characterizing as moot 

her claim of entitlement to an order of visitation with Child 2. It is uncontroverted 

that Child 2 and her mother, Ms. Hensley, reside with Appellant. When questioned 

as to why she was seeking an order of visitation for a child with whom she was 

already living, Appellant, through counsel, stated that such an order would still be 

beneficial if things changed in the future.

A moot case is one which seeks to get a judgment 

on a pretended controversy, when in reality there is none, 

or a decision in advance about a right before it has been 

actually asserted and contested, or a judgment upon some 

matter which, when rendered, for any reason, cannot 

have any practical legal effect upon a then existing 

controversy. 

Benton v. Clay, 192 Ky. 497, 499-500, 233 S.W. 1041, 1042 (1921) (internal 

quotation marks omitted). Appellant’s petition for an order of visitation with Child 

2, with whom she is already living with Ms. Hensley’s consent, sought a decision 

in advance about a right before it has been actually asserted or contested. Such an 

order cannot have any practical legal effect upon an existing controversy. We find 

no error.

Lastly, we will address Appellant’s contention that the circuit court 

improperly applied the “clear and convincing” standard of proof rather than a 
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“preponderance of the evidence” standard. Walker, 382 S.W.3d at 871, states that 

a “grandparent petitioning for visitation must rebut this presumption [of parental 

fitness] with clear and convincing evidence that visitation with the grandparent is 

in the child’s best interest.” “Clear and convincing proof is that of a probative and 

substantial nature carrying the weight of evidence sufficient to convince ordinarily 

prudent minded people.” F.V. v. Commonwealth, Cabinet for Health and Family

Services, 567 S.W.3d 597, 606 (Ky. App. 2018) (internal quotation marks and 

citation omitted). Appellant did not offer clear and convincing proof to overcome 

the presumption that Father is a fit parent acting in Child 1’s best interest. The 

Lincoln Circuit Court applied the correct standard, and we find no error.

CONCLUSION

Per Walker, the Due Process Clause does not permit the state to 

infringe on fundamental parental rights simply because a trial judge believes a 

better decision could be made, nor to question parental decisions so long as the 

parent is otherwise fit. A grandparent seeking an order of visitation must 

overcome the high hurdle of a presumption that a fit parent acts in the best interest 

of his or her child. The record and the law support the Lincoln Circuit Court’s 

determination that Appellant’s petition for visitation with Child 2 is moot, and that 

Appellant did not demonstrate by clear and convincing proof that visitation is in 
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Child 1’s best interest. For these reasons, we affirm the order of the Lincoln 

Circuit Court denying Appellant’s petitions for visitation.

ALL CONCUR.

BRIEF FOR APPELLANT:

Nolan Weddle

Junction City, Kentucky

BRIEF FOR APPELLEE JASON 

STULL:

Penny L. Hines

Somerset, Kentucky