Kentucky Bankruptcy Law

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Bad Blood and Grandparent Adoption

Tragic circumstances underlay the Court of Appeals opinion in Zoeller v. Gutterman, 2006-CA-002141-ME (October, 26, 2007)(to be published), where grandparents fought over visitation rights. Mrs. Gutterman and Mr. Gutterman had been married and conceived two children during their twelve year marriage. One of those children was Ashley.

Ashley, at age 15, gave birth to a son in 2000, about eight years after her parents divorced. She subsequently agreed for her mom, now Mrs. Zoeller, and step-father to be the court appointed guardian for the child in 2002. Sadly, Ashley died in 2004. Mr. Gutterman, Ashley’s dad, filed a petition for grandparent visitation under KRS 405.021. Unbeknownst to Gutterman, The Zoellers had filed a petition to adopt Ashley’s son. The adoption was granted prior to the visitation and so the Zoeller’s argued that he now had no standing to seek visitation since, legally, the child was no longer his grandson. The Court does not provide the whole background story, but I suspect there was such bad blood between the former Mrs. Gutterman and her ex-husband, that when Ashley passed away, they refused to continue the weekly visits she had with her father where her baby went along and visited too.

A Guardian ad Litem was appointed for the young lad and the G.A.L. recommended visitation begin immediately for Gutterman. This was granted, but the Zoellers, obviously not fond of the ex-husband, filed a Writ of Prohibition to stop the visits from commencing. This was granted and aspects of the case went on up to the Supreme Court of Kentucky. The Supremes said that the Family Court did have subject matter jurisdiction, despite the Zoeller’s argument to the contrary, but that the Family Court must have an opportunity to determine if Gutterman had standing due to the intervening adoption.

After holding an evidentiary hearing, the Family Court found Gutterman had standing and that it was in the child’s best interest to have visitation. This really ticked off the Zoellers and they “zealously pursued their contention” that Gutterman had no right to pursue visitation. Id. at 4.

The Court reviewed the Kentucky jurisprudence and history of KRS 405.021 noting that it has been found to be constitutional and designed to address the concerns of increasing divorce rates, increasing pregnancy among unmarried persons, and the increasing mobility in modern society. Furthermore, as long as the grandparent is not deranged or otherwise unfit, they tend to have a special bond with their grandchildren that is mutually beneficial. One later case, Hicks v. Enlow, 764 S.W.2d 68, 71 (Ky. 1989), distinguished stepparent adoption from non-stepparent adoption in that termination of parental rights in non-stepparent scenarios severed all family connections so that grandparents could not have visitation rights.

Kentucky’s General Assembly considered the Hick’s result too harsh and modified the statute to preserve any pre-existing visitation rights granted by a court of competent jurisdiction. In this case, though, no such court order had been entered giving Gutterman those rights. Also, though, in this case there was no involuntary termination of parental rights. Essentially, the Court slapped the Zoeller’s wrists (and their lawyer’s) for failing to make the Family Court for the adoption aware of the pending visitation litigation. They quoted the Family Court in saying:

    Had the Court been aware that there was an adoption proceeding pending in one courtroom and a grandparent visitation action pending in another, the adoption would have been postponed pending the outcome of the grandparent visitation hearing or the visitation issue would have immediately been scheduled for hearing. As an adoption proceeding is usually unopposed, it would almost always be concluded before a contested visitation hearing. This Court does not believe the intent of the General Assembly was to allow one party to deprive another of such a substantive right as continuation of a familial relationship by knowingly manipulating the justice system in this way.

Goodness, Mrs. Zoeller sure must have harbored intense feelings towards her ex-husband. Turns out that they both had abused either alcohol or drugs during the marriage and there was domestic violence perpetrated by Gutterman. Fortunately for Ashley’s child, Gutterman had apparently reserved his hostilities for his wife during their marriage and he managed to form a decent relationship with both Ashley and her child. Ultimately, preserving this bond, especially in the face of Ashley’s death, was seen as in the best interest of the child.

Lessons learned: 1) Say no to drugs and alcohol – their effects can be lasting, 2) Be forthright with the court, even if it appears to hinder your goals in the short-run, 3) Marriage often does not last forever, but divorce sure can, 4) Bitterness is expensive.

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October 28, 2007 - Posted by | Adoption, Civil Procedure, Family Law, Life & Law

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