By Bruce Schreiner
The Associated Press

LOUISVILLE - The Kentucky Court of Appeals Friday set a new standard for deciding when grandparents may have visitation rights with their grandchildren over objections of the parents.

The old standard, requiring "clear and convincing evidence" that the child would be harmed by a loss of a grandparent's visitation, is "unnecessarily strict and unworkable," the court said.

Among other things, "it does not adequately take into account a situation where visitation is withheld by the parents out of vindictiveness," the court said in an opinion by Judge Julia Tackett of Lexington.

Henceforth, a grandparent must prove - although still by clear and convincing evidence - that visitation would be in the child's best interest, Tackett's opinion said.

Judges should consider a "broad array of factors" when deciding whether the child's best interest is being served, the opinion said.

The court took the unusual step of having all 13 sitting judges decide the case. Cases are usually decided by three-judge panels.

The case stems from a dispute involving a Metcalfe County family.

Bobby Vibbert Jr., and his wife, Laura, refused to let their son see his grandfather, Bobby Vibbert Sr., and his step-grandmother, Dorothy.

The elder Vibbert won visitation rights from a domestic relations commissioner, who said "common sense dictates" the child would be harmed by lack of contact with his grandfather after they spent so much time together.

That ruling was upheld in Metcalfe County Circuit Court. On appeal, the parents said the grandfather had not met the requirement for "clear and convincing" proof.

The appeals court vacated the decision and returned the case to circuit court.

"We believe that a modified best interest' standard can be used in cases where grandparent visitation is sought," Tackett said.

Factors to be determined include:

• The nature and stability of the relationship between child and grandparent and the amount of time spent together.

• Potential detriments and benefits to the child and effect on the child's relationship with its parents if visitation is granted.

• Stability of the child's living arrangements.

• Wishes of the child.

• Emotional health of the parents and grandparents.

Tackett wrote that "fit parents" still held a "superior right" to make decisions for their children, including who may visit them.

"A fit parent's decision must be given deference by the courts, and courts considering the issue must presume that a fit parent's decision is in the child's best interest," Tackett said.

In other cases, the court:

• Upheld dismissal of a lawsuit by three Winchester residents against the city, its utility commission and Kroger Co. The taxpayer suit challenged a contract under which Kroger, using public revenue bonds, built a wastewater lagoon, with the city footing the bill for its operation.

Clark County Circuit Court ruled that the agreement might have been a "bad bargain" for the city but was lawful. Without proof of fraud, the appeals court said it agreed.

• Upheld dismissal of a wrongful-death suit against Perry County in the suicide of a jail inmate, Herman Holbrook, in 1994. A lower court ruled the county was protected by the constitutional doctrine of sovereign immunity.