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Fairhurst v. Moon

Court of Appeals of Kentucky

November 27, 2013

Thomas FAIRHURST and Tasha Neill, Appellants
Anita MOON, Appellee.

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Thomas Fairhurst, Paducah, KY, pro se, Tasha Neill, Clinton, KY, pro se, for Appellant.

Jennifer S. Peeler, Paducah, KY, for Appellee.

Before ACREE, Chief Judge; CLAYTON and MAZE, Judges.


MAZE, Judge.

Thomas Fairhurst (Fairhurst) and Tasha Neill (Neill) appeal from an order of the McCracken Family Court which granted Anita Moon (Moon) grandparent visitation with their three children. Fairhurst and Neill argue that the trial court denied them a fair trial and failed to afford presumptive weight to their parental decisions. We agree that the trial court failed to properly apply the currently-applicable standards for grandparent visitation. Hence, we reverse and remand for a new hearing, findings of fact and order on the merits.

Fairhurst and Neill are the parents of three children: J.F., born August 2000; B.F., born September 2001; and M.F., born October 2003. Fairhurst and Neil were divorced in 2010. Pursuant to their dissolution decree, they share joint custody of the children with Fairhurst designated as the primary residential parent.

Anita Moon is Neill's mother and grandmother of the three children. Prior to the divorce, the children had regular contact with Moon. Following the divorce, Fairhurst allowed the children to have unrestricted contact with Moon. Over time, however, Fairhurst started raising objections to the amount of time that Moon was spending with the children and to Moon's behavior around the children. Fairhurst complained that Moon was interfering with his parenting decisions regarding the children. He also alleged that Moon's behavior was causing mental distress for the children by showing favoritism, encouraging the children to keep secrets, making

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unfavorable comments about their parents, and imposing her own religious views on the children. Neill also had complaints about Moon's behavior around and relationship with the children.

Beginning in February of 2012, Neill stopped allowing the children to have telephone contact with Moon while they were with her. Shortly thereafter, Fairhurst also began limiting the children's contact with Moon. After several additional incidents occurring at the children's school, Fairhurst restricted Moon's contact further. In response, Anita Moon and her husband, Pledger Moon, filed this petition on May 16, 2012, seeking a court order for grandparent visitation.

Since Pledger Moon is not a biological grandparent to the children, the trial court dismissed him as a party due to lack of standing. The trial court also appointed a Guardian Ad Litem (GAL) for the children. After interviewing the parties and the children, the GAL submitted a report to the court. However, the GAL declined to make a recommendation on visitation until after the hearing.

The trial court conducted a hearing on Moon's motion for grandparent visitation on November 29 and 30, 2012. On the second day of the hearing, the trial court interrupted Fairhurst's testimony and announced that no further proof was necessary. Pointing to Fairhurst's testimony that he had never completely denied visitation to Moon, the trial court concluded that it had the authority to grant grandparent visitation based only on a finding that such visitation would be in the best interests of the children. After discussion with the GAL and the parties, the trial court granted Moon one-on-one visitation with each child for a period of 24 hours each month and additionally as agreed by the parties. The order further provided that the children are allowed to call, e-mail and write Moon, and that Moon shall be able to eat lunch with each child one time per month if such is permitted by the child's school.

Fairhurst and Neill now appeal from this order. While Moon's petition was pending, the Kentucky Supreme Court rendered its decision in Walker v. Blair,382 S.W.3d 862 (Ky.2012). In that case, the Kentucky Supreme Court addressed the scope of grandparent visitation in light of the ruling by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The parties and the GAL addressed the application of Walker to the facts of this case prior to the hearing. However, the ...

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