NOT TO BE PUBLISHED
OPINION
WINE, JUDGE.
Samantha Yates appeals from an order of the Carter Circuit Court which granted the petition by Barry Webb for grandparent visitation with her two children. She argues that the trial court's decision was not supported by substantial evidence and violates her superior right as a fit parent to decide matters of care, custody and control over her children. We agree with Yates that Webb failed to prove by clear and convincing evidence that visitation would be in the children's best interest. Therefore, we must vacate the visitation order.
Samantha Yates is the mother of two children, A.Y. (born Nov. 2003), and A.W. (born Dec. 2006). The father of the children, Brandon Webb, died June 25, 2010. Both children currently reside with Yates. Brandon lived with Yates prior to his death.
Barry Webb and Paula Sparks were Brandon's parents and are the children's paternal grandparents. Webb and Sparks are divorced and live in separate homes with their current spouses. On July 20, 2010, they filed a joint petition for grandparent visitation with the children.
The trial court conducted an evidentiary hearing on January 18, 2011. Webb testified that he visited with his son Brandon almost daily and had regular contact with the children until August 2008. Webb states that Yates refused to allow him to see the children after that time because she blamed him when she and Brandon were charged with stealing property from a relative.
Sparks testified that she had not spent much time with the children at an early age. However, she has spent Christmas with the children in 2007, 2008, and 2009 with Yates's consent. She testified that she last saw her son and the children in June 2010, just before he died. She stated that she has a good relationship with Yates and was willing to do the pick-up and drop-off with the children for any visitation with Webb.
Yates agrees that the animosity between her and Webb began in 2008 over the criminal charges. She testified that Webb has called Social Services on her, has spoken badly about her in front of the children, and has blamed Yates for Brandon's death. Yates also related that Webb would not allow her and the children to come to Brandon's funeral, except for a one-hour visitation prior to the time that the other family members were visiting them at the funeral. She further testified that the children were doing well in school and that she was concerned that any additional contact with Webb would be disruptive.
In its order entered on January 26, 2011, the trial court acknowledged that there is a great deal of animosity between the Webb and Yates. However, the court believed that this animosity should not affect the relationship between the grandparents and the grandchildren. The court found that Webb had had extensive contact with the children prior to 2008 and that it was not in the best interest of the children to terminate his visitation. But because of the animosity between the parties, the court held that visitation should occur only on a limited basis. The court ordered that Webb be allowed visitation with the grandchildren for two Saturdays per month for a four-hour period. The court did not grant visitation with Sparks, but directed that she would be responsible for the pick-up and delivery of the children.
On February 7, Yates filed a motion to vacate the January 26 order. The trial court denied the motion on February 10. This expedited appeal now follows.
Kentucky Revised Statutes (KRS) 405.021(1) authorizes a circuit court to "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." Yates correctly points out that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 68 USLW 4458 (2000). In Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), this Court determined that KRS 405.021 could be interpreted so as to comply with the constitutional requirements of Troxel. Specifically, this court recognized "that a fit parent has a superior right, constitutionally, to all others in making decisions regarding the raising of his or her children, including who may and may not visit them." Vibbert, 144 S.W.3d at 294.
Given this standard, Yates argues that the trial court must give deference to her decision not to allow her children to visit with their grandparents unless it found that she is an unfit mother. However, the Court in Vibbert did not impose such a high standard. Rather, the Court held that "[t]he grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child." Vibbert, 144 S.W.3d at 295. In making this determination, the trial court must consider a broad array of factors, including but not limited to:
the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child's relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child's living and schooling arrangements; the wishes and preferences of the child.
Id.
Yates contends that the trial court clearly erred by finding that Webb had significant contact with the children prior to 2008. However, the trial court's factual findings may not be disturbed where they are supported by substantial evidence. Kentucky Rules of Civil Procedure (CR) 52.01. Although there was conflicting evidence on this point, the trial court's finding was supported by substantial evidence. CR 52.01. Therefore, we find no reason to disturb the trial court's conclusion.
The more significant question is whether there was substantial evidence to support the trial court's conclusion that visitation with Webb would be in the children's best interest. Given the heightened standard required by Vibbert, "[t]he [trial] court was required to apply KRS 405.021 and determine whether visitation was affirmatively proven by clear and convincing evidence to be in the children's best interest." Grayson v. Grayson, 319 S.W.3d 426, 432 (Ky. App. 2010). But under the elements set out in Vibbert, even a fit parent's opposition, standing alone, is not sufficient to preclude grandparent visitation.
While Webb had frequent contact with the children prior to 2008, the trial court acknowledged that he has had no contact with them since August 2008. In finding that visitation would be in the children's best interest, the trial court noted the general rule that "[a] relationship between a grandparent and a grandchild should be highly favored and should be encouraged." Order entered January 26, 2011, at 2. But the court also recognized that there is much animosity between the parties. The court accepted Yates's testimony that the children were doing well in school and in their current living arrangement. Furthermore, there was no evidence that the children had expressed a desire to see their grandfather.
The circumstances surrounding the estrangement between Webb and his grandchildren are unfortunate. "One of the main purposes of the statute is to prevent a family quarrel of little significance to disrupt a relationship which should be encouraged rather than destroyed." King v. King, 828 S.W.2d 630, 632 (Ky. 1992). But in this case, the quarrel between the parent and the grandparent has grown into full-blown animosity extending over a period of several years. "Requiring a child to have visitation with a grandparent who has extreme animosity toward the child's parent would be inherently unhealthy for the child and would potentially undermine the relationship between the child and its parent." Grayson, 319 S.W.3d at 432.
It appears that both parties are at fault for the estrangement. Nevertheless, Yates has a right to decide who may or may not visit with her children. Given the evidence in this case, we cannot agree with the trial court that visitation was affirmatively proven by clear and convincing evidence to be in the children's best interest. Therefore, we must set aside the trial court's order allowing Webb to have visitation with the children.
Accordingly, the order of the Carter Circuit Court is vacated and remanded with directions to deny Webb's petition for grandparent visitation.
ALL CONCUR.
