A thoughtful comment was posted to Murphy v.Murphy, digested here. As comments can be almost lost below the fold, I thought this one From Donald W. Aaron in Florence deserved posting in its entirety.
I was in the courtroom for this case when the wife appeared pro se and requested that the judge vacate his custody order. I agree with the CA's statement of the importance of adequate notice of such a life-altering hearing.
Earlier in my career, I had a judge ask me to serve an opposing party directly when no one showed for a post-decree hearing after I only served the prior attorney of record. Now we have an opinion affirming this as good practice.
This opinion is also important in providing protection for attorneys, because "as a matter of law, conclusion of a divorce action terminated the attorney-client relationship."
In the instant case the wife should not have filed an appeal while a "valid" motion to alter, amend or vacate was pending. If the CA found the motion tolled the time for appeal, and her appeal was vacated as premature, then any appeal filed after the first dismissal could have again been dismissed as untimely, the clock having run. Appeals have tricky trap doors, even for experienced trial counsel. Wife was pro se on appeal, as she was credited with an appellate brief.
Paternal grandparents appealed trial court order denying their motion to intervene and request for custody of their grandchild in an involuntary termination of parental rights action. The issue on appeal was whether the grandparents have a right under CR 24.01 to intervene in a termination of parental rights action. COA found that grandparents have a “legally cognizable interest” in their grandchildren under Kentucky law. KRS 625.100 recognizes that the child’s relatives have an elevated status when the court awards custody of the child post-termination. It is difficult to understand how grandparents will assert their interest as potential custodians if intervention is not allowed. In addition, grandparent visitation survives termination proceedings if established prior to termination and in the best interests of the child. Pursuant to Baker v. Webb, grandparents have a right to intervene in adoption proceedings.
COA held that “[t]he right of grandparents to intervene in an adoption proceeding, recognized in Baker, would be impaired or impeded if the grandparents were denied the right to intervene in the custody determination subsequent to a termination proceeding because the stability of the child as well as the child-grandparent relationship, factors to be considered in a subsequent adoption proceeding, may likely be adversely affected by the custody order that follows termination but precedes adoption.” Therefore, grandparents have a right to intervene in the custody determination under KRS 625.100.
REVERSED AND REMANDED
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates