dissenting.
I respectfully dissent from the majority opinion because the trial court was clearly erroneous in finding that the grandfather met his burden of proof. The grandfather failed to prove that forced visitation was in the best interests of the infant child. The *636majority opinion has misapplied the standard of review and misinterpreted the law.
I agree with the Court of Appeals that it is unnecessary to reach the constitutional questions in this case because the grandfather has failed to meet his burden of proof. The grandfather has produced no evidence that it is in the best interests of the child to require grandparent visitation upon a non-consenting parent living in an intact family.
This is a particularly fact-intensive case. An examination of the record indicates that the circuit court conducted two separate hearings on the question and ordered the parties and the 19 month old child to undergo a series of evaluations by the comprehensive care center as to the best interests of the infant child and its relation to the parties involved. The grandfather produced no evidence that it was in the best interest of the child to have forced visitation with her grandfather. His testimony does not touch the question of the child’s best interests. The only other possibly relevant document in the record is a report by a “certified psychologist with autonomous functioning" which recommends a two-hour visitation period per week. This report does not satisfy the legal burden of proving the best interests of the child. It admitted that the likelihood of preservation of an emotional relationship between the child and the grandfather was based on an assumption and the recommendation was a mere average of the position of the parties, not one based on the child’s best interests. The evaluator made no mention how the child’s best interests would be promoted by visitation with the grandfather.
The trial judge stated in part that there is no allegation that it is not in the best interests of the child that she know the grandfather. Clearly this is a double negative and a rather bizarre twist to the standard of proof which is placed on the natural parents. Such a finding is clearly erroneous because the statute requires an affirmative finding that visitation would be in the best interests of the child. Cf. CR 52.01. The burden of proof is on the grandfather. The majority opinion also seems to be enunciating a negative standard insofar as there was no question about proper care during the visitation. That is not the issue. The issue is the burden of proof.
The parents are in the best position to know and determine what serves the best interests of their child, and such determination must be given great weight. The grandfather must overcome the initial responsibility of the parent in order to question the decision of the natural parents.
The authorities cited by the majority and the grandfather in regard to the enforcement of K.R.S. 405.020 are based on a totally different fact pattern than that now before this Court. Visitation ordered by a court over the objection of the natural parent in an intact family can be nothing other than forced by the state.
At common law, grandparents did not have the legal right to visit a grandchild over the objection of the parent. American courts followed this rule until the 1960’s when states began to grant grandparent visitation rights under certain limited circumstances. All fifty states now have some kind of grandparent visitation statute.
The real issue here is to what extent the statutorily-created right of grandparent visitation will be permitted to override the fundamental natural inherent constitutional right of parents in an intact family unit.
It is fundamental that parents are entitled to raise their children in a proper home environment without any interference by the state or other third party. Governmental intervention can be justified only when there is a clear and definite showing that the parental decision would result in harm to the child or otherwise impinge on the child’s best interests.
The basis of state intervention has always been some kind of harm to the child and the United States Supreme Court has frequently recognized family autonomy as being entitled to constitutional protection. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 *637L.Ed.2d 195 (1968); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
Historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children. “The Constitutional Constraints on Grandparents’ Visitation Statutes”, 86 Columbia Law Review 118 (1986), Judith L. Shandling.
Any interference upon the fundamental right of the parents must pass the constitutional test of harm to the child to support a compelling governmental interest which would permit such interference. See 16A C.J.S., Constitutional Law § 464(a).
K.R.S. 405.025 gives broad range to the right of grandparents to visit. It is up to the judicial branch of government to safeguard the fundamental constitutional rights of an intact family to unwanted interference from either the grandparents or the state.
In commenting on the Tennessee statute which is very similar to Kentucky’s, Sharon F. Ladd “Notes”-, 15 Memphis State Law Review 635 (1985) wrote, “If the natural parents have a viable marriage, it is not wise to allow parents of either parent to bring suit as this could have a devastating effect on the marriage and therefore the child.”
Similar concerns relative to the authority of parents in an intact family to prevent undue interference can be found in Theodore R. v. Loretta A.J., 124 Misc.2d 546, 476 N.Y.S.2d 720 (1984); Towne v. Cole, 478 N.E.2d 895, 88 Ill.Dec. 404, 133 Ill.App.3d 380 (1985); In re Meek, 443 N.E.2d 890 (Ind.App.1983); McCarty v. McCarty, 559 So.2d 517 (La.App. 2d Cir.1990); Thompson v. Vanaman, 515 A.2d 1254, 212 N.J.Super. 596 (A.D.1986); Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983).
The problems incident to a broad statute such as Kentucky’s have been recognized by Kathyleen S. Bean “Grandparent Visitation: Can the Parent Refuse” 24 Journal of Family Law 393 (1985-86).
In an appeal from a county court, the Delaware Family Appellate Court gave an extended and careful analysis to the arguments of grandparents in Ward v. Ward, 537 A.2d 1063 (Del.Family Court 1987), which observed in part that the interests of grandparents may be limited when they conflict with the interests of the child’s parents. The Delaware Family Court has authority to rule on constitutional questions in that state.
Wisconsin, in Van Cleve v. Hemminger, 141 Wis.2d 543, 415 N.W.2d 571 (App.1987), stated that in the absence of a dissolving family relationship there is no justifiable reason for the state to override determinations made by the parents as to what is in the best interests of their children.
Section 2 of the Kentucky Constitution prohibits the “absolute and arbitrary power” over the lives ... of free men_” Here the parents have a significant liberty interest in the right to raise their daughter free of interference by the state or any other person in the absence of harm to the child. There is no evidence of any governmental interest that needs to be protected in this specific situation.
Here K.R.S. 405.021 is unconstitutional in its application to the right of the parents to raise their child when there has been no demonstration that the child’s best interests will be harmed by the decision of the parents. Cf Saylor v. Hall, Ky., 497 S.W.2d 218 (1973); Pierce, supra.
The Court of Appeals was correct in its decision. Parents in an intact family situation have an inherent constitutional right to raise their child free from interference from any third party, including the state. The integrity, privacy and sanctity of the American family must be jealously protected. The majority decision is a radical extension of the existing statute and as such results in an impermissible interference in the family unit. The parents and their child have been deprived of their right of privacy; the right to be left alone by the state or any third party.
It is unfortunate that the parents and grandparent cannot function as a harmonious extended family unit. Certainly, it is *638the responsibility of parents to promote and strengthen association between grandchildren and grandparents. However, in certain situations this cannot be achieved and the immediate intact family unit must take priority over the extended family unit. In reaching such decisions, the courts must recognize the best interests of the child standard and apply it reasonably to the specific situation.
I am not unmindful of the need of a right for grandparent visitation in a fragmented family, but no governmental authority or state may use the law to force grandparent visitation on nonconsenting parents living in an intact family unit. Clearly there are situations where the family is deteriorating that need attention. This is not such a situation. This is clearly governmental interference.
I would affirm the decision of the Court of Appeals.
LAMBERT, J., joins in this dissent.