LOIS SCHROEDER POSEY and
ROBERT B. POSEY
ALINE ANTOINETTE PORET POWELL
and ROBERT JAMES POSEY, SR.
BEFORE: EMBERTON, HUDDLESTON and JOHNSON, Judges.
JOHNSON, JUDGE: Lois Schroeder Posey and Robert B. Posey (the Poseys) have appealed from a judgment of the McCracken Circuit Court entered on August 12, 1996, which dismissed their petition for custody of, and their motion for visitation with, their grandchild, Robert James Posey, Jr. (B.J.). The dismissal was based upon the trial court's determination that the Poseys lacked standing to seek such relief. We reverse and remand.
The facts necessary for an understanding and resolution
of the legal issue presented by this appeal are neither complex nor
in dispute. The Poseys are the parents of Robert James Posey, Sr.
(Robert), who, from 1990 until 1995, cohabited with, but never
married, the appellee, Aline Antoinette Poret Powell (Toni). On
July 4, 1992, B.J. was born to Toni and Robert in New Orleans,
Louisiana. The Poseys were present for B.J.'s birth and helped
Toni and Robert move to Kentucky when B.J. was a few weeks old.
For the next three years, the Poseys were the primary caretakers of B.J.See footnote 1 Toni and Robert stopped living together and ended their relationship in June 1995. On January 9, 1996, the Poseys filed a petition for temporary and permanent custody of B.J. They alleged that they had taken care of B.J. since he was ten days old, that Toni had visited with the child for only a total of 51 days in 1995 and fewer days than that in previous years, and that the child had serious medical problems requiring ongoing treatment that they were accustomed to providing him.
On January 13, 1996, Toni married Randy Powell. Toni and her husband moved to Marshall County, obtained an unlisted telephone number, and decided to eliminate any contact between B.J. and the Poseys. The Poseys responded by moving the trial court for visitation with B.J. Toni moved to dismiss both the custody petition and the motion for visitation on the ground that the Poseys lacked standing to proceed as paternity of B.J. had not been established.
A hearing on the issue of visitation was conducted before
the Domestic Relations Commissioner (the Commissioner) on June 26,
1996. Although Toni acknowledged before the Commissioner that
Robert was the father of B.J., she renewed her motion to dismiss
for lack of standing. In his recommendations, the Commissioner
concluded in part as follows:
(1) The Court has jurisdiction of the parties and the child, the subject matter of this action.
(2) Due to the close relationship between the paternal grandparents and the child, they should have regular visitation with the child. . . . In rea[ch]ing this conclusion[,] it is determined that the child will benefit from the maintena[n]ce of his relationship with the [Poseys], and, therefore, it is in his best interest that grandparent visitation be permitted.
(3) Due to the refusal of any visitation by Respondent, Toni Powell, between the child and Petitioners, and the a[n]imosity resulting from the Petitioner's [sic] filing this action for custody, the parties should be required to attend the extended LEEP [Life Skills Education to Empower People] program and demonstrate to the Court that they have done so.
(4) At the specific request of Respondent, Toni Powell, for a ruling on her motion to dismiss, it is concluded that her motion should be overruled as she admitted that: (a) Robert James Posey, Sr., is the father; and (b) the information on the Louisiana certificate of live birth is correct as to the natural father.
Toni filed exceptions to the Commissioner's recommendations alleging that the Poseys had no standing to seek custody or
visitation and that visitation was not in B.J.'s best interest.
The trial court agreed with her first contention and granted her
motion to dismiss the petition for custody and motion for visitation. The trial court specifically determined that as paternity of
B.J. had not been established pursuant to KRS 406 et seq., the
Poseys "have no legal relationship with the child in this action
and therefore are prohibited from filing any petitions for custody
or visitation" (emphasis added).
The issue presented by the Poseys on appeal is whether
putative grandparents have standing to pursue the rights of
reasonable visitation under KRS 405.021, and custody under KRS
Chapter 403. The grandparent visitation statute reads as follows:
(1) 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.
KRS 405.021(1). It is apparent to this Court that this statute
clearly and plainly extends visitation rights to any and all
grandparents regardless of whether their grandchild was born in or
out of wedlock, and regardless of whether his or her paternity has
been legally established. Stated differently, there is no
requirement in the statute that a biological grandparent of a
grandchild born out of wedlock obtain a court order establishing
paternity before moving the circuit court for visitation. The
trial court's imposition of this burden on the Poseys was, therefore, erroneous as a matter of law.
In construing our statutes we must "ascertain and give
effect to the intent of the General Assembly. We are not at
liberty to add or subtract from the legislative enactment nor
discover meaning not reasonably ascertainable from the language
used." Beckham v. Board of Education of Jefferson County, Ky., 873
S.W.2d 575, 577 (1994). See also Department of Corrections v.
Courier-Journal and Louisville Times, Ky. App., 914 S.W.2d 349
(1996). Clearly, it is not our function to "add words and meaning
to a statute that is clear on its face." Cole v. Thomas, Ky. App.,
735 S.W.2d 333, 335 (1987). In Cole this Court declined to
construe KRS 405.021 to extend visitation rights to great-grandparents. Instead, it held that the statute gave the right "to file
such a petition to four people, the child's four grandparents."
Id. at 334-335.
By requiring the existence of a "legal relationship" in
addition to the biological one commonly associated with the term
"grandparent," the trial court has changed the meaning of the
statute to exclude putative grandparents. It has added words of
exception to the statute so as to preclude the exercise of
visitation rights by a grandparent whose child, for whatever
reason, has not had the paternity of the grandchild legally
established. We believe if the Legislature had intended to make an
exception for putative grandparents, it would have followed the
example of other states that have so provided. Examples of
legislation requiring that paternity be established in order to
confer standing on a party seeking visitation include Ohio Revised
Code Annotated, §§ 3109.11-3109.12,See footnote 2 New Hampshire Statutes
Annotated, § 458:17-d,See footnote 3 and Nebraska Revised Statutes, § 43-1802.See footnote 4
However, as the Legislature made no such exception, we must
"presume [it] intended to make none." Bailey v. Reeves, Ky., 662
S.W.2d 832, 834 (1984).
We follow the intent of the Legislature that is evidenced
from the plain words employed--"paternal or maternal grandparents
of a child"--and from the evolution of the statute since its
passage in 1976, which has increasingly broadened the class of
those having standing,See footnote 5 in holding that the Poseys are among those
grandparents KRS 405.021 endows with standing to petition for
reasonable visitation with their grandchild.
In her brief, Toni argues that a person petitioning for
visitation under KRS 405.021, "must prove that they fall within the
category of either paternal or maternal grandparents." We agree
that where paternity of a child is at issue, proof that the
petitioner is in fact a maternal or paternal grandparent is
necessary before visitation can be awarded. However, Toni confuses
the issue of standing with a petitioner's burden of proving
paternity. Standing concerns the right to bring an action in the
first instance. The burden of proof concerns the evidence
necessary to prevail on the merits of the action. We reiterate,
the Legislature has not restricted standing to a grandparent whose
grandchild's paternity has been previously established. Toni
admitted that Robert is B.J.'s father. Thus, the proof before the
Commissioner was uncontested that the Poseys are B.J.'s paternal
grandparents.See footnote 6
Toni further contends that even if the Poseys have
standing to seek visitation or custody, they cannot establish their
relationship to B.J. as their proof did not conform to that
required by KRS 406.021, the Uniform Paternity Act. This statute,
as noted in Sumner v. Roark, Ky. App., 836 S.W.2d 434, 438 (1992),
"gives the mother, child, person or agency substantially contributing to the support of the child a remedy to compel support for the
illegitimate child." As the Poseys point out however, neither
compliance with KRS 406.021, nor its proof requirements, are
necessary to obtain custody by a natural parent. Id. Just as a
putative father may petition for and obtain custody with "reliable
evidence that he is the father," and do so without going through
the "rocky shoals of juvenile court," id. citing Sweat v. Turner,
Ky., 547 S.W.2d 435, 437 (1976), putative grandparents may, with
reliable evidence, establish their entitlement to visitation or
Again, we feel constrained to point out that there has
never been a question about the biological relationship between the
Poseys and B.J. Since there was no factual issue regarding
paternity, to have required a district court order of paternity
would have been not only a waste of judicial resources, but it
would have punished the grandparents for their child's disinterest
in asserting his parental rights. Indeed, under the trial court's
determination that a "legal relationship" is required in order to
confer standing to seek visitation or custody, those couples living
together without the benefit of marriage would be able to frustrate
the Legislature's grant of such rights, whereas those couples who
are married could not. Fortunately for the Poseys and other
similarly situated grandparents, in this jurisdiction, a grandparent is not to be deprived of standing to prove that visitation or
custody is in the grandchild's best interest merely because the
grandchild's paternity remains to be determined.
Next, we hold that the trial court erred in dismissing
the Poseys' petition for custody. It reasoned that in order to
succeed, the Poseys "must first be, in the eyes of Kentucky law,
grandparents and they must also allege and prove unfitness" of
Toni. The trial court concluded that the Poseys' petition failed
to allege that Toni was an unfit parent and that the Poseys did not
have a legal relationship with B.J., both of which precluded them
from proceeding. We have reviewed the petition filed by the Poseys
and disagree that it is lacking in allegations sufficient to
proceed on the merits of the custody issue. Although the Poseys
did not specifically state that Toni is "unfit," they did make
allegations which, if proven, would support a finding that she is
"unfit," see Davis v. Collinsworth, Ky., 771 S.W.2d 329 (1989),
and/or that she has waived her superior right to custody. See
Greathouse v. Shreve, Ky., 891 S.W.2d 387 (1995), and Shifflet v.
Shifflet, Ky., 891 S.W.2d 392 (1995).See footnote 7 Finally, the lack of a
"legal relationship" does not deprive a relative from seeking
permanent custody where, as here, the party seeking custody has de
facto custody. See Williams v. Phelps, Ky. App., ___ S.W.2d ___
(February 6, 1998).
Accordingly, the judgment of the McCracken Circuit Court is reversed and this matter is remanded for further proceedings on the motion for visitation and the petition for custody.
BRIEF FOR APPELLANTS:
Hon. Robert C. Manchester
BRIEF FOR APPELLEE,
Antoinette Poret Powell:
Hon. Gary R. Haverstock
Hon. Michael M. Pitman
If a child is born to an unmarried woman, the parents of the woman and any relative of the woman may file a complaint requesting . . . VISITATION rights with the child. If a child is born to an unmarried woman and if the father of the child has acknowledged the child and that acknowledgment has become final . . . the father, the parents of the father, and any relative of the father may file a complaint requesting . . . VISITATION rights with respect to the child.
The Petitioners have had the child's exclusive custody between July, 1992, and the present date [January 8, 1996]. The Respondent, Aline Antonette Poret, has failed to provide support for the child and has relied entirely on the Petitioners to provide for the child's day to day care, protection, and medical care and treatment. The child has serious respiratory problems which has [sic] been diagnosed as asthmatic bronchitis for which the Petitioners have obtained treatment and continue to provide for his treatment on a daily basis.