Background
Allie Erdman (now Bischoff) and Jacob McClearn shared joint custody of their daughter R.M., born in 2019, on a rotating five-day schedule. After Jacob died by suicide in 2021, his parents—Tabatha and Michael McClearn—remained deeply involved in R.M.’s life, providing childcare five days a week, twelve hours a day, for nearly three years while Allie worked. The family also shared regular dinners and holidays together.
In February 2024, Allie informed the McClearns she was relocating to Indiana with her soon-to-be husband. The McClearns filed a petition for grandparent visitation under KRS 405.021 on March 1, 2024, before the move occurred. After Allie and R.M. relocated, the Nelson Circuit Court granted interim weekly FaceTime contact and, following a September 2024 evidentiary hearing, entered an October 9, 2024 order granting grandparent visitation. Allie moved to dismiss for lack of subject matter jurisdiction and to alter or amend the visitation schedule. The court denied dismissal, partially modified the schedule to reduce its burden, and Allie appealed.
On appeal, Allie argued (1) the circuit court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to enter the October 2024 order, and (2) the court erred in finding the McClearns had rebutted the presumption that she, as a fit parent, was acting in R.M.’s best interests by limiting grandparent contact.
The Court’s Holding
The Court of Appeals affirmed on both grounds. On jurisdiction, the court rejected Allie’s argument that the June 2024 interim FaceTime order constituted the “initial custody determination,” which would have made the October order a modification subject to different jurisdictional rules. Because KRS 405.021 requires a best-interest finding before grandparent visitation may be granted, and the interim order contained no such finding, it was not a valid visitation order. The October 9, 2024 order—which did apply the required best-interest standard—was the initial determination, and Kentucky’s jurisdiction to enter it was proper because R.M. was a Kentucky resident when the petition was filed on March 1, 2024. The court did note, however, that the Nelson Circuit Court should assess going forward whether it retains exclusive continuing jurisdiction to modify the order now that Allie and R.M. reside in Indiana.
On the merits, the court held that the circuit court properly applied the Walker v. Blair framework. The circuit court began with the presumption that Allie, as a fit parent, was acting in R.M.’s best interests, and placed the burden on the McClearns to rebut that presumption by clear and convincing evidence. The appellate court found no clear error in the factual findings and agreed that two Walker factors were particularly compelling: the extraordinarily close caretaking bond—twelve hours a day, nearly five days a week for three years—that would cause R.M. distress if severed, and evidence that Allie’s post-petition conduct limiting contact was motivated at least in part by spite rather than genuine concern for R.M.’s welfare. The court also found no error in the admission of the friend-of-the-court report, since the circuit court expressly declined to rely on the FOC’s legal conclusions.
Key Takeaways
- An interim pendente lite order granting phone contact does not qualify as the “initial custody determination” under the UCCJEA when it lacks the best-interest finding required for a valid grandparent visitation order under KRS 405.021; the first legally operative order is the initial determination for jurisdictional purposes.
- Under Walker v. Blair, intensive regular caretaking—such as babysitting a grandchild twelve hours a day, five days a week for years—can constitute the kind of close bond whose severance would cause the child distress, sufficient to rebut the fit-parent presumption by clear and convincing evidence.
- Evidence that a fit parent is motivated by spite or vindictiveness in withholding grandparent contact—as opposed to genuine concern for the child—can independently support a finding that the parent is not acting in the child’s best interest.
- Once both the child and the parent have relocated out of Kentucky, the issuing court must separately assess whether it retains exclusive continuing jurisdiction to modify its visitation order under KRS 403.824(1)(b).
Why It Matters
This decision reinforces that Kentucky’s high bar for grandparent visitation—requiring clear and convincing evidence to overcome the fit-parent presumption—is not insurmountable when grandparents have served as near-primary caretakers for an extended period. For practitioners, the case illustrates that the Walker factors are highly fact-specific: years of intensive daily childcare create a categorically stronger case than occasional holiday visits or a general “loving relationship,” and courts may treat post-petition conduct as evidence of parental motivation rather than genuine child-welfare decision-making.
The opinion also surfaces an unresolved question in Kentucky law—whether the UCCJEA’s jurisdictional framework applies to grandparent visitation proceedings at all—while flagging that even where initial jurisdiction was proper, a Kentucky court must affirmatively evaluate its continuing jurisdiction to modify a grandparent visitation order once the child and parent establish residency in another state. Attorneys handling interstate grandparent visitation matters should advise clients to raise continuing-jurisdiction challenges promptly, as the court noted such challenges can be waived.