2024-CA-0860-MR
Grayson Circuit Court
Kentucky Court of Appeals
Opinion by Judge Cetrulo
Date Rendered: May 16, 2025
In late 2022, Mother was killed in a car accident. Her daughter, Child, survived the crash, which occurred while Father was driving. Just days after the accident, Father signed an agreement waiving his superior custodial rights and supporting a petition by his mother and stepfather, the Whitleys, for sole custody of Child. The agreed order was entered without notice to any of the maternal grandparents.
Soon after, Mother’s mother, Angela Sowell, intervened and received visitation rights through another agreed order. However, that order, drafted by the Whitleys’ attorney, barred any contact between Child and Mother’s father, Michael Shelton, or his wife, Donna Shelton. Sowell’s visitation could be revoked if this condition was violated.
After learning they had been excluded, the Sheltons petitioned for grandparent visitation under KRS 405.021. The case was consolidated and heard before a Domestic Relations Commissioner (“DRC”) in early 2024. The DRC concluded that Child had formed bonds with all five grandparents and recommended granting visitation to the Sheltons. The Whitleys objected, arguing that Donna Shelton, as a step-grandparent, lacked standing and that the DRC had misapplied Walker v. Blair, 382 S.W.3d 862 (Ky. 2012). The trial court overruled the objections and entered judgment in favor of the Sheltons.
On appeal, the Whitleys raise two legal issues: (1) that the trial court erred in granting visitation to a step-grandparent under KRS 405.021, which does not expressly include step-grandparents; and (2) that the trial court erred in concluding that the Whitleys had waived the issue of Donna Shelton’s standing by failing to raise it earlier in the proceedings.
Because the sufficiency of the evidence was not challenged, the Court of Appeals reviewed the legal issues de novo. KRS 405.021 permits visitation by “paternal or maternal grandparents” when in the best interest of the child but does not define “grandparent.” In Cole v. Thomas, 735 S.W.2d 333, 334 (Ky. App. 1987), the Court of Appeals narrowly construed the statute to exclude great-grandparents, reasoning that the legislature intended to restrict standing to the child’s four biological grandparents. Similarly, in Palmer v. Burnett, 384 S.W.3d 204 (Ky. App. 2012), the Court held that a biological grandmother who had previously terminated her parental rights lacked standing under the statute.
While the Court of Appeals acknowledged the evolving recognition of complex family structures in statutes involving fictive kin and de facto custodians, it declined to expand the scope of KRS 405.021 beyond its express terms. Step-grandparents are not included within the statutory language.
Nevertheless, the Court affirmed the judgment on the basis that the Whitleys waived the standing argument. Standing is an affirmative defense that can be waived if not timely raised. See Harrison v. Leach, 323 S.W.3d 702, 705–07 (Ky. 2010) (“Standing is a defense that may be waived.”); Cubar v. Town & Country Bank and Trust Co., 473 S.W.3d 91, 92 (Ky. App. 2015); Corner v. Popplewell, 701 S.W.3d 519, 522 (Ky. 2024). The Whitleys failed to plead standing in their response, did not move to dismiss on that ground, and failed to raise it at the hearing. The issue first appeared as a single line in post-hearing objections, well after the merits had been litigated.
The Court agreed with the trial court that this untimely defense appeared to be a tactical maneuver and upheld the finding that the Whitleys had waived the issue.
Digested by Nathan R. Hardymon