Grandparent's Visitiation - new case from Court of Appeals

Just in today, Timothy Ramsey v. Brenda Ramsey and Karl and Cheryl Sodders. (PDF format). The facts have a high quotient of Jerry Springer material - accusations of child molestation, mother absconding with child, accusations of theft and libel, grandparents abetting mother and aiding in the attacks on father, a person denominated "the gatekeeper" - which will make it interesting on a few different levels, but also some good explanations of the law. Uniquely outrageous cases seldom allow for a good explanation of legal principles. Judge Robb's opinion reversed the trial court for not making the findings as required by the Grandparent's Visitation Statute but the opinion gives us a good general outline of what is required for a grandparent's visitation case.

Perhaps more importantly, this case explains the interplay between the requirement that the court presume the parent acts in the bests of the child and that the court is to give the parent's decision special weight.

The trial court in this case issued a finding indicating that it gave Timothy’s decision to restrict visitation special weight. However, nowhere in its findings does the trial court indicate that it afforded Timothy the benefit of the presumption that his decision was in L.R.’s best interest. The requirement that a trial court give special weight to a parent’s decision is distinct from the requirement that a trial court presume that a fit parent’s decision is in the child’s best interest. Although the concepts are related in that they both establish hurdles for grandparents attempting to secure visitation, they differ in important aspects. The weight of certain evidence refers to “[t]he persuasiveness of some evidence in comparison with other evidence.” Black’s Law Dictionary 1588 (7th ed. 1999). A presumption, on the other hand, is “[a] legal inference or assumption that a fact exists.” “A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.” Thus, the requirement that the trial court recognize the presumption ensures that the trial court properly allocates the burden of proof, while the requirement that the trial court afford the parent’s decision special weight deals with the trial court’s process of weighing the evidence.

(footnote and citations omitted). The Court of Appeals politely noted that the trial court seemed to have overlooked the family discord in its findings. "The failure of the trial court to address this evidence in its findings shakes our confidence that it actually afforded Timothy the presumption and found that the Sodderses had overcome it." Yes, very much worth reading all 18 pages.