RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1486-MR
JAMES PETTY, JR. AND MICHELLE
MARIE PETTY APPELLANTS
APPEAL FROM PULASKI CIRCUIT COURT
v. HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 18-CI-00992
MORGAN PHELPS AND JAMES
KENNETH PETTY, III APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Appellants (the Pettys) appeal from the Pulaski Circuit Court’s
findings of fact, conclusions of law, and order, entered August 27, 2019, denying
their petition for grandparent visitation. After careful review of the record, brief,
and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On September 27, 2018, the Pettys filed a petition seeking visitation
with their two minor grandchildren pursuant to KRS1 405.021. The Pettys alleged
that prior to August 2018, when contact was unceremoniously discontinued, they
had enjoyed extensive, ongoing contact with their grandchildren and it would be in
the children’s best interest to grant them permanent and significant visitation.
Appellees, Morgan Phelps, the children’s mother, and James Kenneth Petty, III,
the children’s father, did not timely answer; however, Phelps, who has sole custody
of the children, opposed the motion. After a final hearing, the court found that the
Pettys had not met their burden of proof and denied their petition. This appeal
followed. Additional facts will be introduced as they become relevant.
ANALYSIS
Before addressing the Pettys’ claim, we must note that the appellees,
who are proceeding pro se on appeal, have failed to file briefs. Accordingly, we
are permitted to: “(i) accept the appellant[s’] statement of the facts and issues as
correct; (ii) reverse the judgment if the appellant[s’] brief reasonably appears to
sustain such action; or (iii) regard the appellee[s’] failure[s] as a confession of error
and reverse the judgment without considering the merits of the case.” CR2
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure.
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76.12(8)(c). Under the facts of this case, we decline to enforce a penalty and will
review the Pettys’ brief on its merit.
“The Circuit Court may grant reasonable visitation rights to the . . .
grandparents of a child . . . if it determines that it is in the best interest of the child
to do so.” KRS 405.021(1)(a). In recognition of the parents’ fundamental superior
right to make decisions regarding their child’s care, custody, and control, the
Kentucky Supreme Court in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012),
established a heightened standard by which circuit courts are to analyze
grandparent visitation claims.
Under this heightened standard, unless parental unfitness is alleged, a
court must start with the presumption that a parent acts in the child’s best interest.
Id. at 870-71. To overcome this presumption and succeed on their petition, a
grandparent must demonstrate by “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[.]” Id. at 871. Where the
grandparent fails to meet their burden, “parental opposition alone is sufficient to
deny [the petition].” Id. The Walker court also identified factors which a circuit
court may consider in reaching its determination. Id.
The Pettys argue that the court misapplied the Walker analysis by
giving improper weight to Phelps’s opposition, despite finding it likely the children
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would benefit from future visitation with them. In support, the Pettys refer this
Court to two alleged misstatements of law in the final order. First, after expressing
a hope the parties would reconcile in the future, the trial court stated, “a custodial
parent’s wishes acting in the best interest of the children must control.” Second,
the court stated, “[t]he standard with which grandparent visitation cases are
determined ‘create[s] an almost insurmountable hurdle’ for grandparents seeking
visitation,” citing Justice Scott’s dissent in Walker. Based on the above, the Pettys
urge this Court to reverse the order denying them visitation and remand this matter
with instructions for the trial court to apply the proper standard.
We review de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.
App. 2001). Contrary to the Pettys’ belief, the trial court’s denial of their petition
is not inherently erroneous simply because the court found that visitation would
likely benefit the children. The potential benefit and/or detriment of granting
visitation is merely one factor a court may consider and is not individually
determinative of the result. Walker, 382 S.W.3d at 871.
Furthermore, the alleged misstatements of law do not require reversal.
The first statement, which was designated as a finding of fact, is a correct, albeit
perhaps incomplete, statement of the law. Where a grandparent does not meet the
burden of proof, which is what the court ultimately determined, the parent’s
decision controls, even if the court thinks a better decision could be made. Id. at
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870-71. As for the second alleged misstatement, while the Pettys argue it
demonstrates that the court relied solely on Justice Scott’s dissent and,
consequently, applied a more stringent standard, this is not accurate. The court
correctly identified the standard set forth by the Walker court when it stated that
Phelps’s opposition to visitation must be presumed to be in the children’s best
interest and that the Pettys had the burden to overcome that presumption through
clear and convincing evidence.
Additionally, while the Pettys argue the court slavishly yielded to
Phelps’s decision, the findings of fact clearly demonstrate consideration of the
factors identified by the Walker court. As part of that consideration, the court
found that: (1) the lack of contact had not negatively impacted the children; and
(2) the animosity between the parties would likely result in a negative impact on
the children were visitation granted. The Pettys have not challenged these
findings. As a review of the order in toto demonstrates, the court correctly applied
the applicable law and the denial of the petition is supported by the court’s findings
of fact; thus, the Pettys’ claim fails.
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CONCLUSION
Therefore, and for the foregoing reasons, the order of the Pulaski
Circuit Court denying the Pettys’ petition for grandparent visitation is
AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: NO BRIEF FILED FOR
APPELLEES.
Joseph Brand Venters
Somerset, Kentucky
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