Caskey v. Caskey, 2010-CA-000667-ME
Issue: Modification of Primary Residential Parent
Published: Reversing and Remanding
After Child was attacked by a third party while in Mom’s care, Dad filed a motion for an Order modifying primary residential parent from Mom to him and changing fifty-fifty timesharing to standard visitation schedule. TC denied the Order and Dad appealed pro se.
Per divorce settlement agreement, Mom and Dad shared joint custody of 6 year-old Child. Parents equally divided parenting time but Mom was designated as primary residential parent. Two and a half years later, Mom’s best friend was driving with Mom in the front seat of the car and Child and best friend’s boyfriend in the back seat. Best friend’s boyfriend struck Child in the throat and attempted to choke her. Mom did not take Child for medical treatment until almost midnight the following day. When Dad picked up Child the next day, Child still had bruising on her chest and throat and hemorrhaging around her eyelids and mouth. Best Friend’s Boyfriend was criminally charged for the assault, and Mom was charged criminally for failure to report the assault. Dad filed a Motion for an Order modifying primary residential parent from Mom to him and changing fifty-fifty timesharing to standard visitation schedule (every other weekend plus one time during the week.) At the hearing on the Motion, Mom pled the Fifth but testified that she did not learn of the attack until the day after it occurred.
TC noted that while Child “may not have been exemplarily monitored” by Mom, Child was not in danger in Mom’s care; TC therefore denied Dad’s motion.
CA noted that the modification of designation of primary residential parent should be decided based on the best interests of the child. CA held that the undisputed facts were more than sufficient to show that it was in Child’s best interests for Dad to be designated primary residential parent, with whom Child should live. CA noted that a trial court’s determinations as to visitation and designation of primary residential parent will not be reversed unless they constitute a manifest abuse of discretion or were clearly erroneous in light of the facts and circumstances of the case, but that this case is one of those rare exceptions. CA noted that TC’s referral of the case to the Cabinet for investigation and monitoring contradicted TC’s finding that Child was not endangered in Mom’s care.