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Morton v. Tipton

Supreme Court of Kentucky

March 14, 2019







         In this grandparent visitation case, David and Darlene Morton, custodial maternal grandfather and step-grandmother, challenge the trial court's award of limited grandparent visitation to Bruce Tipton, paternal grandfather. The Mortons maintain the trial court failed to apply the Walker "best interest of the child" factors and further failed to make the grandparent visitation determination based upon clear and convincing evidence, the standard enunciated in Walker. Although the trial court did not cite Walker v. Blair, 382 S.W.3d 862, 871 (Ky. 2012), we conclude the findings of fact reflect proper consideration and application of the best interest factors. As for the standard of proof, the trial court properly applied the preponderance of the evidence standard because the higher clear and convincing evidence standard only applies in the event of a grandparent visitation dispute involving a custodial parent. Accordingly, we affirm the Court of Appeals.


         Bruce Tipton (Tipton) is the paternal grandfather of the minor children CT, born March 8, 2007, and KT, born July 31, 2009. Following their births, they and their parents, Brian Tipton and Roxanna Swartz, resided with Tipton for a period of time. When not residing with Tipton, the four visited Tipton almost every day until CT and KT were approximately two (2) years and nine (9) months and five (5) months of age, respectively. Both Brian and Roxanna have histories of drug abuse, and they engaged in domestic violence in the presence of their children.

         In January 2010, the Cabinet for Health and Family Services (the Cabinet) filed petitions alleging that CT and KT were neglected by both parents because of the parents' drug abuse and that the family was not stable because they were dependent upon others to provide them housing. CT and KT were placed with David and Darlene Morton, maternal grandfather and step-grandmother. In March 2011, the Mortons were granted permanent custody of CT and KT and, by the same order, the Powell Circuit Family Court included a provision for Tipton to have supervised visitation with CT and KT at the Mortons' discretion. At the time of this decision, as later found by the Montgomery Circuit Court, the Powell Circuit Family Court had held multiple hearings with the parties, had received reports and Tipton's home evaluation from the Cabinet, [2] and was in the best position to evaluate whether it was in CT and KT's best interest to have visitation with Tipton. In June 2012, because the Mortons moved their residence, the case was transferred to Montgomery District Court.

         From April 2010 and later pursuant to the March 2011 order, Tipton visited with CT and KT for one (1) hour per week, either with or without the children's father, Brian. The visits took place in Montgomery County at a restaurant, a park, or the Mortons' home. At some point, Tipton asked the Mortons for increased visitation, which they denied. In October 2012, Tipton filed this action in Montgomery Circuit Court, specifically petitioning for "grandparent timesharing."

         The Mortons requested that a specific timesharing schedule be denied and, as part of their objection, noted that Tipton's showing the young girls a dead pig carcass had disturbed them. Tipton testified that the pig, shown at the girls' request was not bloody, having been slaughtered for food a couple of days before. Darlene described the incident as causing great trauma to the children, who became fearful of Tipton from that point forward.[3]

         While the Cabinet conducted an evaluation of Tipton's home, the Montgomery Circuit Court ordered that Tipton have continued visitation with the children, setting a schedule for one (1) hour biweekly. The Cabinet's evaluation concluded that Tipton appears to love CT and KT; he has maintained ongoing contact and would like more contact with them; and he has the support of his church family, friends, and family. The Cabinet's concerns stemmed from some safety issues in the home, past reports of Tipton's spanking a significant other's minor child in 1989, and Brian's presence in the home given his significant criminal history. Following evaluation, the Cabinet did not recommend custodial placement with Tipton.

         When the Mortons again objected to Tipton's request for increased visitation, they stated that Tipton's visitation with CT and KT had become an emotional strain. The trial court nevertheless granted Tipton weekly visits with the children, but, at the Mortons' request, appointed a GAL. Upon completing her investigation, the GAL did not recommend unsupervised visitation with Tipton at that time primarily due to CT and KT's uneasiness with him. The GAL recommended that until the children became more comfortable with Tipton, visitation be less frequent and in the least distracting environment for the children. Based upon the GAL's recommendation, the court ordered that CT and KT attend counseling.[4] Tipton maintained telephone communication and over the course of time he attended individual sessions with the children's therapist and discussed ways to appropriately communicate with children the ages of CT and KT.

         In October 2014, with the children showing a lack of progress after fourteen months of therapy, the trial court ordered the children to be assessed by a therapist specializing in trauma. In November 2014, while in a session with her usual counselor, CT, age 7, disclosed that when she was around age 4, Tipton touched her while helping her wipe after going to the bathroom and that the touch felt inappropriate. The counselor reported this to the Cabinet and Darlene Morton filed an emergency protective order on behalf of CT and KT. The trauma therapist's report was received in December; CT discussed various things which made her feel anxious or sad, but there was no mention of the alleged touching by Tipton.

         At Tipton's request due to the pending investigation of CT's allegations of inappropriate touching, the trial court suspended Tipton's contact with the children in a January 2015 order. In July, after the Kentucky State Police had completed its investigation into this alleged criminal act and indicated no charges would be filed, Tipton asked for reinstatement of his timesharing with CT and KT. This motion led to a final hearing in November 2015 at which Tipton; Kristy Smith, Tipton's daughter who has twins near the age of CT; and Scott Rogers, Tipton's pastor, testified on his behalf. Darlene Morton; Michelle Felty, the social worker for the Cabinet; and Amy Smith, CT and KT's counselor, testified on the Mortons' behalf. Amy Smith testified that she recommended that CT have no contact with Tipton. Felty's and the trauma therapist's reports were admitted into evidence, along with Tipton's photo of his other granddaughters swinging on his front porch. The trial court took the matter under advisement but additionally ordered that family visits take place in Kristy Smith's home with Kristy, her two daughters, CT and KT, and Darlene Morton present, the intention being to help CT and KT feel comfortable around the paternal side of the family in anticipation of Tipton being incorporated into future family visits, if appropriate.

         In February 2016, the EPO against Tipton was dismissed. The trial court found that there was no evidence that the alleged inappropriate touching was anything beyond that which occurred incidentally while Tipton helped wipe CT after she used the bathroom and was not done for sexual gratification.

         In June 2016, observing that the family visits at his daughter's home had reportedly gone well, Tipton requested that his visitation with CT and KT be reinstated and that he be incorporated into the family visits. The Mortons opposed the motion. In July, the trial court granted Tipton visits at his daughter's home with the established family group. Afterward, the Mortons renewed a motion for a final order, stating the visits had not gone well. The trial court scheduled hearings in October and December to hear from others present at the visits. Kristy Smith, the children's aunt, testified that the two visits had gone well. Shirley Bowen, Darlene's sister, testified that the visit "did not go badly." No one testified or otherwise reported that either CT or KT was traumatized by these visits, acted out before or following these visits, or needed to return to counseling as a result of the visits.

         On July 7, 2017, the trial court entered its final order consisting of approximately 30 pages of detailed findings of fact, ultimately concluding it is in the best interest of the children to be allowed to continue a relationship with Tipton through occasional supervised visitation. The trial court concluded that in this case, grandparent visitation rights do not interfere with the constitutional rights of the biological parents given that the parents do not have custody, do not have a set visitation schedule, and, indeed, their whereabouts are unknown. Tipton's visitation was limited to three (3) times per year and included the following restrictions: the visits are to occur at Kristy Smith's home, under her supervision, with her two daughters present; and Darlene Morton is to be present until CT feels comfortable enough for her to leave.

         On appeal, the Court of Appeals concluded that the trial court properly applied the preponderance of the evidence standard and appropriately considered the relevant Walker factors. With those conclusions, the appellate court held that the trial court did not abuse its discretion in granting Tipton the very limited visitation with CT and KT as outlined. This Court granted discretionary review.


         The Mortons insist that the circuit court erred by not applying the Walker best interest factors and by not requiring Tipton to prove by clear and convincing evidence that visitation with him was in his grandchildren's best interests. Tipton counters that the circuit court actually considered the Walker factors and that preponderance of the evidence is the appropriate standard of proof when a circuit court addresses a grandparent's request for visitation with a child not in the custody of his or her parents. Alternatively, Tipton insists that even if the higher clear and convincing evidence standard were applicable, the court in this case did not abuse its discretion.

         In Massie v. Navy, 487 S.W.3d 443 (Ky. 2016), we were presented with a similar case, i.e., a grandparent seeking visitation with a child who resided with a non-parent custodian, but the issue of the appropriate standard of proof was not preserved and hence this Court did not address it. Along with this case, Massie illustrates the struggles the bench and bar face when dealing with evolving domestic relations issues and changing family caregiving and living arrangements for which a way forward is not always clearly outlined by statute or even case law.[5] We find sufficient preservation of the issue of the proper standard of proof in this case to address it.

         I. The statutory framework and factors relevant to grandparent visitation.

         Grandparent visitation in Kentucky is governed by statute. Kentucky Revised Statute (KRS) 405.021(1)(a), [6] often referred to as Kentucky's grandparent visitation statute, is contained in Title XXXV. Domestic Relations, Chapter 405. Parent and Child, and entitled "Reasonable visitation rights to grandparents." KRS 405.021(1)(a) currently provides: "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." When the statute was originally adopted in 1976, it only applied if a child's parent was deceased. In 1984 the General Assembly extended the right of grandparents to petition for visitation to cases where the parent or parents of the child are not deceased. Cole v. Thomas,735 S.W.2d 333, 334 (Ky. App. 1987). This Court, in King v. King, 828 S.W.2d 630, 632 (Ky. 1992) (overruled on other grounds), upheld the constitutionality of KRS 405.021(1)(a) and recognized that it seeks to balance the rights of the parents, the grandparents and the child. The underlying factual premise in early cases pursuant to the ...

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