ALLIE ERDMAN APPELLANT v. TABATHA MCCLEARN AND MICHAEL MCCLEARN APPELLEES (2026)

OPINION AFFIRMING

Allie Erdman (now Bischoff) (“Allie”) appeals from the Nelson Circuit Court's October 9, 2024, order granting grandparent visitation rights to Tabatha and Michael McClearn (“the McClearns”). Finding no error, we affirm.

BACKGROUND

Allie and Jacob McClearn (“Jake”) had one child in common, R.M., born in 2019. Tragically, Jake died by suicide in 2021. Prior to his death, Allie and Jake shared joint custody of R.M., and equal parenting time on a five-day on, five-day off rotating schedule. During Jake's parenting time, the McClearns (Jake's parents) would often watch the child while Jake worked. Even after his death, the McClearns were very involved in R.M.’s life. From August 2021 through April 2024, the McClearns babysat R.M. five days a week, twelve hours a day, while Allie worked. Allie and the child also participated in weekly family dinners at the McClearns’ house and spent some holidays with their family.

In February 2024, Allie notified the McClearns that she would be moving to Indiana to live with her soon-to-be husband, Dalton Bischoff. In response, on March 1, 2024, the McClearns filed a petition for grandparent visitation pursuant to KRS ¹ 405.021. The next month, before the petition could be adjudicated, Allie and R.M. moved to Indiana. The McClearns then filed a motion to “establish immediate interim visitation with the minor child, pending mediation and/or a hearing in this matter,” which the court granted, awarding the McClearns one FaceTime call per week with R.M.

The circuit court heard evidence concerning the visitation petition on September 12, 2024,² and on October 9, 2024, entered an order granting the McClearns’ request. Allie filed a motion to dismiss for lack of subject matter jurisdiction, or in the alternative, a motion to alter, amend, or vacate. The court denied the motion to dismiss and partially granted the motion to alter, amend, or vacate, based upon Allie's contention that the visitation schedule was unreasonable. The court subsequently held another hearing and entered an order on August 12, 2025, modifying the visitation schedule to make it less burdensome on Allie and R.M. This appeal followed.

STANDARD OF REVIEW

On appeal, Allie argues that (1) the circuit court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in KRS 403.822 et seq, to enter its October 9, 2024, visitation order,³ or (2) alternatively, the circuit court erred in granting the McClearns grandparent visitation. “Whether a Kentucky court has jurisdiction under the UCCJEA is a question of law that we review de novo.” Officer v. Blankenship, 555 S.W.3d 449, 453 (Ky. App. 2018) (citation omitted). As to our review of a trial court's grant of a petition for grandparent visitation, we review the trial court's findings of fact for clear error, giving due regard “to the opportunity of the trial court to judge the credibility of the witnesses.” CR ⁴ 52.01. “But the interpretation of KRS 405.021(1) in accordance with federal constitutional law and the application of the appropriate standard to the facts are issues of law that we review de novo.” Walker v. Blair, 382 S.W.3d 862, 867 (Ky. 2012) (citation omitted).

ANALYSIS

Allie first argues that the circuit court lacked subject matter jurisdiction under the UCCJEA to enter the October 9, 2024, visitation order. To better address her argument, we will briefly discuss the UCCJEA and its relevant provisions. “The UCCJEA was enacted with the intent to discourage jurisdictional controversies between the states[ ] and promote uniformity in state jurisdictional laws.” Aldava v. Johnson, 686 S.W.3d 205, 210 (Ky. 2024) (internal quotation marks and citation omitted). Forty-nine states, including Kentucky and Indiana, have adopted the UCCJEA. Adams–Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 772 (Ky.2015); Indiana Code Chapter 31–21–5–1 et seq. (2007).

“Under our enactment of the UCCJEA, KRS 403.822 controls a court's jurisdiction to initially make a custody determination, and KRS 403.824 controls such court's exclusive, continuing jurisdiction to modify that determination.” Wahlke v. Pierce, 392 S.W.3d 426, 429 (Ky. App. 2013). A “[c]hild custody determination” includes “a judgment, decree, or other order of a court providing for ․ visitation with respect to a child.” KRS 403.800(3). A court has jurisdiction to make an initial child custody determination if Kentucky “is the home state of the child on the date of the commencement of the proceeding[.]” KRS 403.822(1)(a). “ ‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding.” KRS 403.800(7). “Commencement” means “the filing of the first pleading in a proceeding[.]” KRS 403.800(5).

Once a court has made an initial custody determination, it retains continuing, exclusive jurisdiction to modify that determination until:

(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or

(b) A court of this state or a court of another state determines that the child, the child's parents, and any other person acting as a parent do not presently reside in this state.

KRS 403.824(1). “If either (a) or (b) of KRS 403.824(1) is determined to exist, the court loses exclusive, continuing jurisdiction and may not further adjudicate the child custody matter.” Wahlke, 392 S.W.3d at 430. In such a case, a court may only modify its prior child custody order if it meets the qualifications for making an initial determination under KRS 403.822. KRS 403.824(2). While “initial jurisdiction under the UCCJEA is generally in the nature of subject matter jurisdiction[,]” Day v. Day, 673 S.W.3d 454, 457–58 (Ky. App. 2023), the question of a court's exclusive, continuing jurisdiction to modify its prior orders “is manifestly one of particular-case jurisdiction.” Lawson v. Woeste, 603 S.W.3d 266, 274 (Ky. 2020).

Returning to Allie's jurisdictional challenge, she concedes the circuit court had jurisdiction to make an initial child custody determination because she and R.M. resided in Kentucky on March 1, 2024, when the McClearns filed their petition for grandparent visitation. However, she argues that this initial determination was made on June 6, 2024, when the court ruled that the McClearns could have one weekly FaceTime call with R.M., pending a hearing on their petition. The court's October 9, 2024, order, therefore, would not be the initial custody determination, but a modification. Because she and R.M. had relocated to Indiana by that time, she contends the court no longer had exclusive, continuing jurisdiction, and its October 9, 2024, order is void.

We disagree with Allie's characterization of the June 6, 2024, order. That order was a docket order granting the McClearns a weekly FaceTime call with R.M. until a hearing could be held and a determination made concerning visitation. Importantly, KRS 405.021 permits a court to grant grandparent visitation only if it finds that it is in the child's best interests. The court's June 6, 2024, order contained no such finding and therefore cannot be the initial custody (visitation) determination because it was not a valid visitation order. The initial visitation determination was the October 9, 2024, order, which properly considered the modified best-interest standard and the Walker v. Blair factors.⁵ Because Kentucky was R.M.’s home state on the date of the commencement of the proceeding, the court had jurisdiction to make this initial visitation determination.

However, we pause to note that the Nelson Circuit Court may no longer have exclusive, continuing jurisdiction to modify the visitation order.⁶ Under KRS 403.824(1)(b), a court loses exclusive, continuing jurisdiction if a “court of this state or a court of another state determines that the child, the child's parents, and any other person acting as a parent do not presently reside in this state.” In its October 9, 2024, visitation order, the circuit court found that Allie and R.M. had moved to Indiana. At that time, however, it was not tasked with considering its exclusive, continuing jurisdiction, as it had not yet made the initial visitation determination.

Going forward, the court must decide whether it still has jurisdiction to adjudicate the visitation matter. As recognized by our Supreme Court, “when the parties’ circumstances change, as when one or more parties move out of Kentucky, the court must ․ decide whether it should continue to exercise jurisdiction over that particular case, a determination that it alone can make under KRS 403.824.” Lawson, 603 S.W.3d at 275. “Indeed, the plain language of KRS 403.824 tasks the Kentucky court that made the custody determination with assessing its continuing authority given the criteria outlined.” Id. With that brief aside, we now turn to whether the circuit court erred in granting the visitation petition.

Allie primarily argues that the McClearns failed to overcome the presumption that she is acting in the best interests of the child in limiting visitation. KRS 405.021 allows a court to grant reasonable visitation rights to grandparents if it determines that it is in the child's best interests. “When considering a petition for grandparent visitation, the court must presume that a fit parent is making decisions that are in the child's best interest.” Walker, 382 S.W.3d at 870. “The grandparent petitioning for visitation must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child's best interest.” Id. “In other words, the grandparent must show that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child's best interest.”

In determining whether visitation is in the child's best interest, the court can consider the following factors:

1) the nature and stability of the relationship between the child and the grandparent seeking visitation;

2) the amount of time the grandparent and child spent together;

3) the potential detriments and benefits to the child from granting visitation;

4) the effect granting visitation would have on the child's relationship with the parents;

5) the physical and emotional health of all the adults involved, parents and grandparents alike;

6) the stability of the child's living and schooling arrangements;

7) the wishes and preferences of the child; and

8) the motivation of the adults participating in the grandparent visitation proceedings.

Walker, 382 S.W.3d at 871. Further, “all eight Walker factors need not be considered when determining whether grandparent visitation is clearly in the child's best interest.” Massie v. Navy, 487 S.W.3d 443, 447 (Ky. 2016). “[T]he facts of each case dictate which Walker factors are most relevant and possibly dispositive.” Id. “[D]etermining whether grandparent visitation is in a child's best interest is a very fact-specific inquiry.” Pinto v. Robison, 607 S.W.3d 669, 674 (Ky. 2020) (citing Walker, 382 S.W.3d at 873).

Here, the circuit court found that Allie is a fit parent and began with the presumption that her decision to limit grandparent visitation was in the child's best interest. It also properly considered the Walker factors and ultimately found that the McClearns had rebutted the presumption by clear and convincing evidence that Allie is acting in R.M.’s best interest by denying visitation to the McClearns. Several Walker factors were of particular importance to the court, including the amount of time the McClearns and R.M. spent together. The court noted that for almost three years, the McClearns babysat R.M. twelve hours a day, four to five days a week. It found that “given the close relationship the McClearns have shared with R.M., that to sever contact with R.M. would cause distress to R.M.”

In Walker, the Kentucky Supreme Court discussed several ways a grandparent can show that the parent is mistaken in the belief that visitation is not in the child's best interest. One way is to show “that the grandparent and child shared such a close bond that to sever contact would cause distress to the child.” Walker, 382 S.W.3d at 872. Regular babysitting was specifically given as an example of such a close bond. Id.

Another Walker factor relevant to the circuit court's decision was Allie's motivation since the filing of the visitation petition. The court found that

Allie is spiteful of the McClearns for filing this grandparent visitation action. While Allie indicated she intends to allow R.M. to maintain a relationship with the McClearns, since Allie relocated to Indiana in April 2024, she has only allowed one afternoon visit between R.M. and the McClearns in Nelson County ․ and another recent weekend visit which occurred in Indiana ․ Additionally, the Court had to grant the telephonic communication between the McClearns and R.M., over Allie's objection, to reestablish contact between them.

A second way “[a] grandparent can rebut the presumption that a fit parent acts in the child's best interest [is] by presenting proof that the parent is not actually acting in the child's best interest.” Walker, 382 S.W.3d at 872. “If the parent is motivated purely by spite or vindictiveness, this can be proof that the parent is acting out of self-interest rather than a concern for the child's best interest.” Id. While the court found that “both parties are motivated in trying to do what is best for R.M.,” it also found that the visitation petition “has clearly led to distrust and hurt feelings” for Allie, which has led to her limiting contact between the McClearns and R.M. to R.M.’s detriment.

Importantly, the court also found that granting visitation would not have a negative effect on R.M. and Allie's relationship. In Walker, the Supreme Court observed “[t]he effect that granting visitation would have on the child's relationship with the parents is an important factor of the best interest analysis․ Grandparent visitation should not be granted if it is clearly detrimental to the parent-child relationship.” Walker, 382 S.W.3d at 872. Here, the circuit court found that granting visitation would not impact Allie's strong relationship with R.M.

Allie takes issue with the court's analysis of the Walker factors, specifically the significance of the McClearns and R.M.’s relationship. Relying upon Walker, she contends that “a loving relationship between grandparent and grandchild is not enough to grant visitation[.]” However, her use of Walker is misleading. She offers the following quote in support:

If the only proof that a grandparent can present is that they spent time with the child and attended holidays and special occasions, this alone cannot overcome the presumptions that the parent is acting in the child's best interest. The grandparent must show something more— that the grandparent and child shared such a close bond that to sever contact would cause distress to the child․ To allow visitation on a lesser showing would put fit grandparents on equal footing as fit parents, which violates the Due Process Clause.

Allie uses ellipses to remove the language most relevant to this case: the Court's mention of babysitting as an example of such a close bond that could overcome the parental presumption.

Her citations to Goodlett v. Brittain, 544 S.W.3d 656, 663 (Ky. App. 2018), and Waddle v. Waddle, 447 S.W.3d 653, 653 (Ky. App. 2014), in support of the same principle are also unconvincing. Both cases were reversed and remanded for additional findings because the trial court had made only a conclusory finding that the grandparents and grandchild had a close, loving relationship. Here, the circuit court made detailed findings concerning each Walker factor, including the close relationship between R.M. and the McClearns.

Allie also argues that the court did not give sufficient weight to the detriments of granting visitation. She essentially complains that the circuit court's visitation schedule is too demanding. She contends that grandparent visitation limits the time R.M. can spend with her stepsiblings, and the ten-hour round trip from Indiana to Kentucky is exhausting to R.M. Further, frequent visitation disrupts R.M.’s family, extracurricular, and school schedule.

The circuit court acknowledged that, given the distance between the parties, frequent visitation would be detrimental to R.M. Further, most of the issues Allie raises were addressed by the circuit court when it partially granted her motion to alter, amend, or vacate. The court held a hearing on the reasonableness of the visitation schedule and significantly reduced the burden on Allie and R.M. by removing many of the long-weekend visits that had been ordered.

Finally, Allie disputes the circuit court's finding that she is acting out of spite in withholding visitation. She claims she has not withheld visitation, and that her own family has only had one more day of visitation than the McClearns. In making its finding, the circuit court noted that Allie had only allowed the McClearns two visits with R.M. since the filing of the petition. It also found it particularly telling that Allie opposed the McClearns’ request for telephone contact with R.M. while the petition was pending. The circuit court's finding that Allie is acting spitefully toward the McClearns for filing the visitation petition is supported by substantial evidence.

In addition to challenging the court's findings under Walker, Allie has raised several other issues, which we address in turn. First, she argues the court's visitation schedule is not reasonable. However, most of her issues appear to be with the court's initial visitation schedule. As noted, the court granted Allie's motion to alter the visitation schedule and significantly reduced the number of visitation days. She has not specifically challenged the reasonableness of the modified schedule, so we decline to address this argument any further as it appears to be moot. Further, should circumstances change, and the schedule prove too burdensome, Allie can move to modify the visitation order.

We have also considered Allie's claim that the court failed to give proper weight to her rights as a fit parent. Specifically, she points to the court's finding that spending time with R.M. was “important to the McClearns[,]” and argues that what is important to the McClearns is not relevant to deciding whether there is sufficient evidence to rebut the presumption that Allie is acting in R.M.’s best interest. It is true that “the potential benefit of visitation for the grandparent has no place in a trial court's determination of the child's best interest.” Walker, 382 S.W.3d at 873. However, we find that this statement was more of an observation than an actual consideration in the court's best-interest determination.

The statement was made in the context of the court's analysis of the potential benefits and detriments to grandparent visitation. The court noted that it “sees great benefit in R.M. being able to spend time with the McClearns” because they had had such a positive relationship and impact throughout her life. It then observed that “[t]ime spent between R.M. and the McClearns is even more important to the McClearns as Mike has stage four cancer.” The court here seems merely to recognize a sense of urgency behind the petition. Ultimately, it was the close bond that R.M. shared with the McClearns that convinced the court that limiting grandparent visitation was not in the child's best interest.

Allie also contends the court erred in admitting the friend of the court's (“FOC”) report into evidence because it contained impermissible legal conclusions. The circuit court addressed this complaint in its order on Allie's motion to alter, amend, or vacate. The court noted that “[w]hile the factual information in the report was extremely helpful to the Court, the Court did not consider the FOC's opinion as to whether the Petitioners had met their heavy burden to be granted grandparent visitation.” Because the FOC's legal opinions played no role in the court's decision, we find no error.

Finally, Allie argues that several of the court's findings of fact are inaccurate—for instance, its finding that she moved to Bardstown to have the McClearns help with childcare. She says the move had nothing to do with childcare. Another example is the court's finding that R.M. would spend some holidays with the McClearns. Allie claims the testimony was that the visits never actually occurred on the holidays themselves. The court also addressed this argument in its partial denial of Allie's motion to alter, amend, or vacate, clarifying its findings. We find no error.

As the circuit court recognized, these cases are difficult. Clearly, both parties care deeply for R.M. It is also understandable that Allie might not want a structured visitation schedule, given the distance between the parties and the disruption it might cause to the new family life she has built. However, the trial court is in the best position to judge the evidence and weigh the credibility of witnesses. Walker, 382 S.W.3d at 873. After hearing the evidence and applying the Walker factors, the circuit court concluded that “given the relationship the McClearns have with R.M․ the McClearns have rebutted the presumption by clear and convincing evidence that Allie is acting in R.M.’s best interest in denying visitation with the McClearns.” We cannot say the trial court erred in this determination. The McClearns were heavily involved in R.M.’s life for three years, serving as her primary caretakers for 12 hours a day, 5 days a week. This is just the type of close bond that can rebut the parental presumption. Walker, 382 S.W.3d at 872.

CONCLUSION

Accordingly, the Nelson Circuit Court's October 9, 2024, Findings of Fact, Conclusions of Law, and Judgment granting the McClearns’ petition for grandparent visitation is affirmed.

FOOTNOTES

1.   Kentucky Revised Statutes.

2.   This hearing was not included in the record on appeal. Interestingly, neither party has cited to a video record in their briefs, instead citing the court's order. Therefore, it is unclear whether a video record of the hearing was simply omitted from the record on appeal or does not exist at all. Generally, we are to assume that missing parts of a record support the trial court's decision. Commonwealth v. Thompson, 697 S.W.2d 143 (Ky. 1985). Regardless of the state of the record of the hearing, it does not appear that the relevant facts are in dispute, and the available record is sufficient for us to resolve the appeal on the merits.

3.   Both parties have proceeded under the assumption that the UCCJEA applies to petitions for grandparent visitation under KRS 405.021. We have been unable to locate any Kentucky case law directly addressing the question. Compare Stewart v. Evans, 136 P.3d 524, 526 (Mont. 2006) (holding that the UCCJEA's jurisdictional provisions did not apply to grandparent-grandchild contact proceedings) with A.M. v. Superior Court, 63 Cal. App. 5th 343, 350, 277 Cal. Rptr. 3d 594, 599 (Cal. Ct. App. 2021) (finding that the UCCJEA governs grandparent visitation petitions because the UCCJEA's definition of “child custody proceeding” includes a proceeding where “legal custody, physical custody, or visitation with respect to a child is an issue[.]”); see also Josette F. v. Jaret O., No. 23-ICA-164, 2024 WL 1256001, at *4 (W. Va. Ct. App. Mar. 25, 2024) (“While the statute does not expressly specify that grandparent visitation orders are within the scope of the UCCJEA, we find that the broad definition of ‘child custody determination’ encompasses not only parental custodial allocation and parenting plan matters, but also grandparent visitation determinations that affect access to the child.”). Because the issue has not been raised, we assume for purposes of appeal that the UCCJEA applies to grandparent visitation proceedings.

4.   Kentucky Rules of Civil Procedure.

5.   382 S.W.3d 862.

6.   Allie focuses her jurisdictional argument on the circuit court's October 9, 2024, order. To the extent she is also arguing that the court lacked jurisdiction to enter the December 12, 2024, and August 12, 2025, orders, we consider that argument waived. These orders were the result of Allie's motion to alter, amend, or vacate the circuit court's initial visitation determination, which we construe as a motion to modify that determination. In Lawson, 603 S.W.3d at 274, our Supreme Court clarified that a court's exclusive, continuing jurisdiction to modify its child custody or visitation orders under KRS 403.824 is in the nature of particular-case jurisdiction, which can be waived. See Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (citation omitted).

McNEILL, JUDGE:

ALL CONCUR.