2019-SC-0615-DE RENDERED: S

JUSTIN PINTO APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2019-CA-0435

PULASKI CIRCUIT COURT NO. 07-CI-00501

VAN ROBISON AND VERIA ROBISON; APPELLEES

WILLIAM BROWN; AND DANIEL CAMERON,

ATTORNEY GENERAL

OPINION OF THE COURT BY JUSTICE KELLER

REVERSING

Justin Pinto appeals the Court of Appeals ’ reversal of the Pulaski Circuit

Court ’ s ruling that Kentucky Revised Statute ( “ KRS ” ) 405.02 1 (l)(b) and (c),

which governs grandparent visitation, is unconstitutional. This Court granted

Pinto ’ s motion for discretionary review. Having reviewed the record and

considered the arguments of the parties, we hereby reverse the Court of

Appeals.

I. BACKGROUND 1

Lisa and Justin Pinto are the parents of two children, I.P. and R.P. 2 Lisa

and Justin were divorced in 2006, and as part of that divorce, Lisa was granted

1 This case has a long and tortuous history. Because the facts of the underlying

case are not particularly relevant to our legal analysis, we only discuss them briefly.

2 Consistent with the lower courts and to help protect their privacy, we will refer

to the minor children by their initials.sole custody of the two children while Justin was granted visitation. In 2007,

Lisa married William Brown, and the couple, along with the two children,

moved to North Carolina in 2014. In May 2016, Justin filed a motion to modify

custody, seeking to be awarded sole custody of the children due to Lisa ’ s

declining health. In June 2016, Lisa ’ s parents, the Robisons, along with Brown,

filed a motion to intervene in the custody action; In July 2016, Lisa lost her

battle with cancer and passed away. The Pulaski Circuit Court granted Brown

temporary custody of the children and ordered that the parties participate in

mediation and reconciliation therapy to help the children reestablish their

relationship with their father. The case remained in this status for nearly two

years.

In May 2018, Brown filed a motion for sole custody of the children. After

conducting a full trial on the matter, the Pulaski Circuit Court entered a final

judgment granting Justin ’ s 2016 motion to modify custody and denying

Brown ’ s motion for sole custody. As a result of that judgment, Justin was

granted full and sole custody of the children. Thereafter, the Robisons filed a

motion to amend the final judgment to include grandparent visitation pursuant

to KRS 405.021(1). Notably, the Robisons ’ motion did not specify under which

paragraph of KRS 405.021(1) they were making their request.

Justin argued the Robisons ’ motion should be dismissed on procedural

grounds, but also argued that KRS 405.021 (l)(b) and (c) is unconstitutional

under Troxel v. Granville, 530 U.S. 57 (2000), and Walker v. Blair, 382 S.W.3d

862 (Ky. 2012). Justin argued to the circuit court and again argues to this

2Court that KRS 405.021 (l)(b) and (c) does not adequately account for the

presumption that a fit parent acts in a child ’ s best interest and impermissibly

lowers the burden by which grandparents must overcome that presumption.

The circuit court entered extensive factual findings concluding unequivocally

that the children would benefit from continuing their frequent and meaningful

contact with their grandparents. However, it ultimately agreed with Justin ’ s

constitutional argument. It found KRS 405.021 (l)(b) and (c) to be

unconstitutional as it failed to comply with Troxel and dismissed the Robisons ’

motion for grandparent visitation.

The Robisons appealed to the Court of Appeals. The Court of Appeals

first noted that although the circuit court found KRS 405.02 l(l)(b) and (c) to be

unconstitutional, the circuit court did not analyze the Robisons ’ motion under

KRS 405.02 l(l)(a), a subsection of the statute that was held to be

constitutional by this Court in Walker provided a certain evidentiary process

was followed. The Court of Appeals further noted, however, that the Robisons

did not argue the circuit court erred by failing to analyze their claims under

Walkefs interpretation of KRS 405.021(1 )(a) and therefore the court did not

address that issue. The Court of Appeals then addressed the constitutionality

of KRS 405.021(l)(b) and (c). The court distinguished the statute at issue from

the statutes at issue in both Troxel and Walker. The Court of Appeals

concluded that KRS 405.021 (l)(b) and (c) was narrowly tailored to a very

specific set of circumstances and served to protect the relationships a child had

with his or her grandparents before the death of the child ’ s parent. Therefore,

3the Court of Appeals held the statute was constitutional, and reversed and

remanded the case to the circuit court. We then granted discretionary review.

II. ANALYSIS

Justin argues the Court of Appeals erred in reversing the Pulaski Circuit

Court ’ s ruling that KRS 405.02 l(l)(b) and (c) is unconstitutional. Because this

case concerns a matter of constitutional construction or interpretation, we

review it de novo. Greene v. Commonwealth, 349 S.W.3d 892, 898 (Ky. 2011).

KRS 405.021(1) states as follows:

(a) 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.

(b) If the parent of the child who is the son or daughter of the

grandparent is deceased, there shall be a rebuttable

presumption that visitation with the grandparent is in the

best interest of the child if the grandparent can prove a pre

existing significant and viable relationship with the child.

(c) In order to prove a significant and viable relationship

under paragraph (b) of this subsection, the grandparent

shall prove by a preponderance of the evidence that:

1. The child resided with the grandparent for at least

six (6) consecutive months with or without the current

custodian present;

2. The grandparent was the caregiver of the child on a regular basis for at least six (6) consecutive months;

43. The grandparent had frequent or regular contact

with the child for at least twelve (12) consecutive

months; or

4. There exist any other facts that establish that the

loss of the relationship between the grandparent and

the child is likely to harm the child.

Only the constitutionality of subsections (b) and (c) are at issue in this case.

In reviewing a claim that a state statute is unconstitutional, we must be

mindful that “ a statute is presumed to be constitutional unless it clearly

offends the limitations and prohibitions of the Constitution. The one who

questions the validity of an act bears the burden to sustain such a

contention. ” Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000)

(quoting Stephens v. State Farm Mutual Auto Ins. Co., Ky., 894 S.W.2d 624

(1995)). Justin relies on Troxel v. Granville, 530 U.S. 57, and Walker v. Blair,

382 S.W.3d 862, to support his argument that KRS 405.02 1 (l)(b) and (c) is

unconstitutional. Thus, a thorough review of those cases is necessary to

determine this issue.

In Troxel v. Granville, Brad Troxel and Tommie Granville had two children

together. 530 U.S. at 60. Jenifer and Gary Troxel were Brad ’ s parents, and

thus the paternal grandparents of the two children. Id. The children regularly

visited with the Troxels, even after their father passed away. Id. Eventually,

however, Tommie informed the Troxels that she wanted to limit the time her

children spent with them. Id. at 61. The Troxels then filed a petition in the

Washington Superior Court to obtain visitation rights with the girls. Id. At

issue in the case was Washington Revised Code § 26.10.160(3) which stated,

5“ Any person may petition the court for visitation rights at any time including,

but not limited to, custody proceedings. The court may order visitation rights

for any person when visitation may serve the best interest of the child whether

or not there has been any change of circumstances. ” Id. The Washington

Superior Court entered a visitation decree ordering certain visitation, and

Granville appealed from that decree. Id. The case eventually made its way to

the United States Supreme Court at which time that Court was called upon to

determine the constitutionality of the Washington statute at issue. Id. at 63.

In Troxel, the United States Supreme Court recognized that the interest

of parents in the care, custody, and control of their children “ is perhaps the

oldest of the fundamental liberty interests recognized by this Court ” and

protected by the Due Process Clause of the Fourteenth Amendment. Id. at 65.

Further, the Court “ recognized the fundamental right of parents to make

decisions concerning their care, custody, and control of their children. ” Id. at

66.

The Court then reviewed the statute at issue and noted the language of

the statute

effectively permits any third party seeking visitation to subject any

decision by a parent concerning visitation of the parent's children

to state-court review. Once the visitation petition has been filed in

court and the matter is placed before a judge, a parent's decision

that visitation would not be in the child's best interest is accorded

no deference.

Id. at 67. The Court then held that the statute, as applied, “ exceeded the

bounds of the Due Process Clause. Id. at 68. The Supreme Court next made

6clear that “ there is a presumption that fit parents act in the best interests of

their children. ” Id. It went on to explain

so long as a parent adequately cares for his or her children (i.e., is

fit), there will normally be no reason for the State 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.

Id. at 68-69. It then took issue with the Washington Superior Court ’ s failure to

give any special weight to Granville ’ s determination of her children ’ s best

interests and its effective requirement that Granville disprove that visitation

would be in the children ’ s best interests. Id. at 69. This, the Court held, “ failed

to provide any protection for Granville ’ s fundamental constitutional right to

make decisions concerning the rearing of her own daughters. ” Id. at 70.

Accordingly,

the decision whether such an intergenerational relationship would

be beneficial in any specific case is for the parent to make in the

first instance. And, if a fit parent's decision of the kind at issue

here becomes subject to judicial review, the court must accord at

least some special weight to the parent's own determination.

Id. A state cannot infringe on a parent ’ s fundamental right to make decisions

regarding his or her children merely because the judge “ believes a ‘ better ’

decision could be made. ” Id. at 73.

Although the United States Supreme Court struck down the Washington

statute as it was applied in the case before it, the Court chose not to further

define “ the precise scope of the parental due process right in the visitation

context. ” Id. The Court expressed hesitation with holding any particular state

statute regarding nonparental visitation was unconstitutional as a per se

7matter, as “ the constitutionality of any standard for awarding visitation turns

on the specific manner in which that standard is applied and that the

constitutional protections in this area are best ‘ elaborated with care. ’ ” Id.

(quoting J. Kennedy ’ s dissenting opinion, id. at 2079).

Twelve years after Troxel, this Court was called upon to apply the United

States Supreme Court ’ s holdings to the Kentucky grandparent visitation

statute in Walker v. Blair, 382 S.W.3d 862. Michelle Walker and Steve Blair

had one child in common. Id. at 866. After Blair ’ s death, his parents filed a

petition under KRS 405.021(1) to establish grandparent visitation with the

child. Id. The version of KRS 405.021(1) in effect at the time was verbatim the

current KRS 405.021(l)(a), quoted above. Walker opposed a court-ordered

visitation schedule. Id. The trial court found that visitation with his

grandparents was in the child ’ s best interest and ordered visitation, over

Walker ’ s objection. Id.

This Court reviewed Kentucky prior jurisprudence on the issue of

grandparent visitation and determined much of it was no longer good law after

Troxel. Id. at 870. We then reiterated the Supreme Court ’ s holdings in Troxel

and sought to further clarify them. Based on Troxel, we stated, “ 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). ” Id. at 870

71. We then clarified the burden of proof that a grandparent must meet to

overcome that presumption. We stated,

8The 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.

Id. at 871.

Next, we delineated eight factors a trial court can look at in deciding

whether a parent is clearly mistaken in his or her belief that grandparent

visitation is not

in the child ’ s best interest. Those factors are: 1) the nature and

stability of the relationship between the child and the grandparent seeking

visitation; 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; 7) the wishes and preferences of the child; and 8) the motivation

of the adults participating in the grandparent visitation proceedings. Id.

Finally, we made clear that determining whether grandparent visitation is in a

child ’ s best interest is a very fact-specific inquiry. Id. We ultimately held that if

KRS 405.021(1) was applied following these principles, it did not run afoul of a

parent ’ s fundamental liberty interest in raising his or her child. Id. at 870.

Having reviewed the relevant caselaw, we now turn to the statute at issue

in this case. KRS 405.02 l(l)(b) and (c) state as follows:

9(b) If the parent of the child who is the son or daughter of the

grandparent is deceased, there shall be a rebuttable

presumption that visitation with the grandparent is in the

best interest of the child if the grandparent can prove a pre

existing significant and viable relationship with the child.

(c) In order to prove a significant and viable relationship

under paragraph (b) of this subsection, the grandparent

shall prove by a preponderance of the evidence that:

1. The child resided with the grandparent for at least

six (6) consecutive months with or without the current

custodian present;

2. The grandparent was the caregiver of the child on a regular basis for at least six (6) consecutive months;

3. The grandparent had frequent or regular contact

with the child for at least twelve (12) consecutive

months; or

4. There exist any other facts that establish that the

loss of the relationship between the grandparent and

the child is likely to harm the child.

The statute, on its face, runs afoul of a parent ’ s fundamental constitutional

right to the care and custody of his or her child.

First, the statute allows a grandparent to prove a “ significant and viable

relationship ” with the child in one of four ways. The proof, however, need only

be by a preponderance of the evidence. The preponderance of the evidence

standard is lower than the clear and convincing evidence standard that we

require under Walker for a grandparent to rebut the presumption that a parent

is acting

in the child ’ s best interest by limiting or denying visitation. Because

proving such a relationship by a mere preponderance standard is the only

element required by the statute to give the grandparents a rebuttable

presumption in their favor, which in turn effectively rebuts the presumption in

10favor of the parent, the statute fails to accord the parent ’ s determination

regarding his or her child the “ special weight ” required by Troxel.

The Robisons argue that the factual scenarios required to be present

under KRS 405.021 ( l)(c) “ point to the issue of whether a parent, ‘ adequately

cares for his or her children, ’ as Justice O ’ Connor defined ‘ fitness. ’ ” They

further argue that paragraph (c) requires that the grandparent had been “ in an

in loco parentis role for an extended period of time. ” Those contentions simply

are not true. For example, KRS 405.021 (l)(c)(4) allows a trial court to find a

significant and viable relationship between the child and the grandparent as

long as the trial court finds that there exists “ any other facts that establish that

the loss of the relationship between the grandparent and the child is likely to

harm the child. ” By its very terms, that paragraph of the statute requires no

specific time period or strength of relationship between the child and the

grandparent. Further, paragraph (b) allows a trial court to find a significant

and viable relationship between the child and the grandparent if “ [t]he

grandparent had frequent or regular contact with the child for at least twelve

(12) consecutive months. ” This paragraph could be met if the grandparent

merely babysat the children on a regular basis or hosted a family dinner that

the child attended once each week. While we agree that such regular contact

would likely show a relationship exists, it does not necessarily show the

strength of that relationship and certainly does not show that the parents are

not fit or that the grandparent acted in loco parentis.

11We recognize that the conditions listed in KRS 405.021 (l)(c) reflect some

of the factors delineated in Walker that a trial court can look at to determine

whether visitation is clearly in the child ’ s best interest. See Walker, 382 S.W.3d

at 871. However, not all of the Walker factors are included in KRS

405.02 l(l)(c), but even if they were, we made clear it is still a fact-intensive

determination. See id. at 872. Further, even if the Walker factors are sufficient

to overcome the presumption that a parent is acting in the child ’ s best interest,

they are not sufficient to flip that presumption such that visitation with the

grandparent would be presumed to be in the best interest of the child, a

presumption which the parent would then be required to rebut.

Turning now to KRS 405.021 (l)(b), we see where the flipping of the

presumption occurs. Paragraph (b) states as follows:

If the parent of the child who is the son or daughter of the

grandparent is deceased, there shall be a rebuttable presumption

that visitation with the grandparent is in the best interest of the

child if the grandparent can prove a pre-existing significant and

viable relationship with the child.

Under this, if a grandparent can prove the existence of a significant and viable

relationship with the child merely by a preponderance of the evidence as

previously discussed, the grandparent is then entitled to a presumption in his

or her favor. This portion of the statutory scheme again fails to accord the

requisite “ special weight ” required by Troxel to the parent ’ s determination

regarding his or her child. It does not comply with the presumption in favor of

the parent that this Court requires under Walker. Accordingly, it is violative of

the United States Constitution ’ s Due Process Clause on its face.

12All 50 states have enacted some version of a grandparent visitation

statute; however, the variations on these statutes are too numerous to discuss

in this opinion. In our review, it appears that only a few states have enacted

legislation similar enough to ours to merit direct comparison, and our holding

today is consistent with the treatment of those similar statutes by the high

courts of those states.

The statute we found to be most similar to KRS 405.02 l(l)(b) and (c) is

from Washington and was held to be unconstitutional by the Supreme Court of

Washington in In re Parentage of C.A.M.A., 109 P.3d 405 (Wash. 2005). In that

case, the Supreme Court of Washington looked at Revised Code of Washington

( “ RCW ” ) 26.09.240, the state ’ s third-party visitation statute. In full, the statute

provided:

(1) A person other than a parent may petition the court for

visitation with a child at any time or may intervene in a pending

dissolution, legal separation, or modification of parenting plan

proceeding. A person other than a parent may not petition for

visitation under this section unless the child's parent or parents

have commenced an action under this chapter.

(2) A petition for visitation with a child by a person other than a

parent must be filed in the county in which the child resides.

(3) A petition for visitation or a motion to intervene pursuant to

this section shall be dismissed unless the petitioner or intervenor

can demonstrate by clear and convincing evidence that a significant relationship exists with the child with whom visitation

is sought. If the petition or motion is dismissed for failure to

establish the existence of a significant relationship, the petitioner

or intervenor shall be ordered to pay reasonable attorney's fees and

costs to the parent, parents, o'ther custodian, or representative of

the child who responds to this petition or motion.

(4) The court may order visitation between the petitioner or

intervenor and the child between whom a significant relationship

13exists upon a finding supported by the evidence that the visitation

is in the child's best interests.

(5) (a) Visitation with a grandparent shall be presumed to be in the

child's best interests when a significant relationship has been

shown to exist. This presumption may be rebutted by a preponderance of evidence showing that visitation would endanger

the child's physical, mental, or emotional health.

(b) If the court finds that reasonable visitation by a grandparent

would be in the child's best interest except for hostilities that exist

between the grandparent and one or both of the parents or person

with whom the child lives, the court may set the matter for

mediation under RCW 26.09.015.

(6) The court may consider the following factors when making a

determination of the child's best interests:

(a) The strength of the relationship between the child and the

petitioner;

(b) The relationship between each of the child's parents or the

person with whom the child is residing and the petitioner;

(c) The nature and reason for either parent's objection to granting

the petitioner visitation;

(d) The effect that granting visitation will have on the relationship

between the child and the child's parents or the person with whom

the child is residing;

(e) The residential time sharing arrangements between the parents;

(f) The good faith of the petitioner;

(g) Any criminal history or history of physical, emotional, or sexual

abuse or neglect by the petitioner; and

(h) Any other factor relevan t to the child's best interest.

(7) The restrictions of RCW 26.09.191 that apply to parents shall

be applied to a petitioner or intervenor who is not a parent. The

nature and extent of visitation, subject to these restrictions, is in

the discretion of the court.

(8) The court may order an investigation and report concerning the

proposed visitation or may appoint a guardian ad litem as provided

in RCW 26.09.220.

(9) Visitation granted pursuant to this section shall be

incorporated into the parenting plan for the child.

14(10) The court may modify or terminate visitation rights granted

pursuant to this section in any subsequent modification action

upon a showing that the visitation is no longer in the best interest

of the child.

C.A.M.A., 109 P.3d 405, 409-10 (quoting W ash

. R ev

. C ode § 26.09.240)

(emphasis added). Subsection (5) (a) of that statute deals specifically with

grandparent visitation and is the parallel of our KRS 405.02 l(l)(b), as it creates

a presumption that grandparent visitation is in the best interest of the child

“ when a significant relationship ” is shown. The Supreme Court of Washington,

after discussing Troxel, held simply and concisely,

[I]t is clear that subsection (5) (a) directly contravenes the

constitutionally required presumption that the fit parent acts in

the child ’ s best interests.... The United States Supreme Court held

that a court must accord “ special weight ” to the parents ’ own

determination, and because subsection (5) (a) establishes a

presumption antonymous to that constitutionally required “ special

weight, ” the subsection must fail.

Id. at 411. KRS 405.02 l(l)(b) suffers from the same fatal flaw.

This opinion should not be read to hold that all grandparent visitation

statutes are unconstitutional. In fact, we are leaving intact KRS 405.02 l(l)(a)

and KRS 405.021(3) as potential avenues for a trial court to grant grandparent

visitation so long as the trial court complies with Walker in applying those

subsections of the statute. We recognize the changing dynamics of families in

today ’ s society and the important and influential role that extended family

members, especially grandparents, play in raising today ’ s children. With this in

mind, we leave open the possibility that the legislature may enact further

grandparent visitation statutes that do comport with the Due Process Clause

15and accord the requisite “ special weight ” to a parent ’ s determination of the best

interests of their child. 3

Finally, as the Court of Appeals noted, the trial court did not analyze the

Robisons ’ motion for grandparent visitation under KRS 405.02 l(l)(a) and this

Court ’ s interpretation of that statutory section in Walker. After the trial court ’ s

order was entered, the Robisons did not request the trial court make any

additional factual findings or apply paragraph (a) to their motion. Further, the

Robisons did not argue to the Court of Appeals or to this Court that the trial

court erred in failing to analyze their motion under paragraph (a). Therefore,

with an eye towards finality and stability for the children and rest of the family,

we will not address whether the trial court should have done so or remand for

it to do so.

III. CONCLUSION

For the foregoing reasons, we reverse the opinion of the Court of Appeals

and reinstate the trial court ’ s order.

Minton, C.J.; Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting.

All concur. Lambert, J., not sitting.

3 An example of a statute that includes many of the factors found in KRS

405.02 l(l)(c) but still gives a parent ’ s decision presumptive weight in accordance with

Troxel can be found in In re Adoption of J.P., 385 S.W.3d 266 (Ark. 2011).

16

### COUNSEL FOR APPELLANT:

Ralph 

### D. Gibson

COUNSEL 

### FOR APPELLEES, 

### VAN ROBISON 

### AND VERIA ROBISON:

Bruce 

### W. 

### Singleton

17