Opinion

Davis v. Collinsworth

  • 771 S.W.2d 329
  • 1989 Ky. LEXIS 42
  • 1989 WL 60204
Court
Kentucky Supreme Court
Filed
Jun 8, 1989
Status
Published
Author
Vance
On the bench
Gant, Stephens, Lambert, Leibson, Combs, Vance, Wintersheimer
Cited by
31 cases
Authority
More cited than 7.3%

noting that '‘[t]he United States Supreme court has recognized that parents have fundamental, basic and constitutionally protected rights to raise their own children and that any attack by third persons (and we would include grandparents in that category) seeking to abrogate that right must show unfitness by ‘clear and convincing evidence.’ ”

How later courts described this case

  • noting that '‘[t]he United States Supreme court has recognized that parents have fundamental, basic and constitutionally protected rights to raise their own children and that any attack by third persons (and we would include grandparents in that category) seeking to abrogate that right must show unfitness by ‘clear and convincing evidence.’ ”
  • requiring unfitness or abandonment and noting that failure to provide essential care only qualifies when based on reasons other than poverty alone
  • requiring unfitness,or abandonment ánd noting that failure to provide essential care only qualifies when based on reasons other than poverty alone
  • parental unfitness as shown by abuse, moral delinquency, abandonment, emotional or mental illness, or failure, for reasons other than poverty alone, to provide essential care of child

Written by the judges who cited it.

The opinion

VANCE, Justice

dissenting.

I respectfully dissent because the trial judge in his findings of fact and conclusions of law determined that the respondent, the natural mother, was not a fit or proper person to have the custody of her minor children. He recited the facts upon which he based his determination.

The Court of Appeals reversed his decision because, in its view, the trial judge was required to find such a degree of unfitness as would justify a termination of the mother’s parental rights before he could grant custody to the grandmother. There is dicta to that effect in Boatwright v. Walker, Ky.App., 715 S.W.2d 237, 244 (1986). The majority opinion does not discuss the propriety of the Boatwright standard for determination of unfitness, but seemingly establishes a lesser standard, *331 and holds that the evidence of unfitness of the natural mother was insufficient to deprive her of custody.

In my opinion, the findings of the trial judge were not clearly erroneous, nor did his judgment constitute an abuse of discretion. For that reason I would reinstate the judgment of the trial court.

WINTERSHEIMER, J., joins in this dissenting opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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