Child, through GAL, appealed FC ruling
that her Great-Grandmother had standing to intervene in suit as de facto
custodian, arguing that she did not meet the requirements for de facto custodian
status under KRS 403.270.
At age 2, Child was removed from
Mother and placed in temporary custody of Great-Grandmother pursuant to
dependency petition. Two years and five
months later, Child was returned to Mother’s care; but eight months after that,
Child was removed from Mother’s care again and placed in concurrent planning
foster home. Great-Grandmother filed
motion to intervene in order to be considered for Child’s placement or to have
visitation with Child. After hearing, FC
granted Great-Grandmother de facto custodian status and granted her
visitation. GAL filed motion to
reconsider, arguing that Great-Grandmother had relied upon an unpublished case
to establish that the lapse in time of her care of Child did not disqualify her
as de facto custodian and further arguing that Great-Grandmother could not rely
on her husband’s salary as her own income for purposes of meeting the
statute. FC disagreed on both fronts and
denied the motion to reconsider. On
appeal, Child through GAL argues that Great-Grandmother cannot qualify as de
facto custodian because she is not Child’s primary financial supporter; Child
also argues that termination proceedings are scheduled and the standing order
of visitation will inhibit Child’s potential for adoption.
There is no authority holding that a
de facto custodian cannot be credited with financial support which is provided
by the government through government benefits, such as Great-Grandmother’s
receipt of social security and social security insurance, or from their
spouse’s income, merely because such monies were not earned directly through
employment. Such a result would
disqualify stay-at-home spouses, retirees, elderly social security recipients,
and poor and disabled recipients of government benefits. CA held this was not the intent of the
legislature. CA acknowledged and
sympathized with the fact that Great-Grandmother’s visitation order, which
would continue on past an adoption, might inhibit Child’s prospects for
adoption; but without a legal precedent warranting reversal, it has no bearing
on Great-Grandmother’s status as de facto custodian.
Father appeals order granting Mother
leave to relocate with Child to Washington State, contending such an Order is
not in Child’s best interests.
After marrying in Texas in May 2009,
Couple moved to Kentucky and had their only Child there. Both Mother and Father have substance abuse
issues and bipolar disorder. Multiple
EPO’s were taken out, 2 with Dad as Petitioner and 1 with Mom as
Petitioner. In May 2011, Father’s
time-sharing with Child was terminated due to positive drug test, but it was
re-established in September 2011. In
November 2011, they divorced and Mother was granted sole custody of Child. FC ordered a time-sharing evaluation from
social worker and the report was incorporated with FC’s order allowing Mother
to relocate with Child.
Father argued that social worker’s
opinions must be limited because they cannot be related to psychological
analysis or credibility of the witnesses and that she acted only as a conduit
for the introduction of hearsay testimony.
CA held first that the social worker was qualified to give the testimony
she did, but that, more importantly, her opinion was only a fraction of the
evidence relied upon by FC in granting the relocation request. FC relied upon the testimony of family and
friends that, among other things, Mother has no connections to Fayette County;
that during their time together, Mother and Father moved repeatedly and there
was no real connection to Fayette County for Father either; that neither party
has an income; and that both parties have ongoing mental and emotional health
issues. CA also held that these facts
demonstrated it was in Child’s best interests to relocate with Mother.
On remand from Kentucky Supreme Court,
Father challenges sufficiency of evidence supporting FC’s entry of Domestic
Mother and Father have a son born in
1997. An incident occurred in 2009 when
Mother attempted to pick up Son from football practice. Mother subsequently filed an EPO, alleging
that at that practice she and Father got into a dispute as to when Mother was
to retrieve Son; that as Mother was standing at passenger side door of Father’s
van telling Son to come with her, Father grabbed her by wrist and yanked her,
then shoved her out of the way; that she then called for help; that Father had
been sentenced to jail time for violating multiple court orders in custody case;
and that all three of her children witnessed the incident. EPO was granted. At the DVO hearing, Mother testified to all
these facts and that although she had not been injured, she was afraid. Father testified that he never grabbed or
shoved Mother, but that she grabbed his hand from the door of the van; he also stated
that he only wanted to take his Son to his home to retrieve a change of clothes
and his summer reading assignment for the first day of school the following
day; and that he never had any intent to harm or scare Mother. The GAL testified that Son stated nothing had
happened that day.
the conclusion of the hearing, FC determined only that “something happened” and
recognized Father’s failure to follow FC orders and to read FC orders in his
favor. Upon Father’s request for
specific findings, FC found that Father had touched and pushed Mother and that
such behavior would continue in the future.
FC entered DVO, effective for three years, requiring Father to stay 500
feet away from Mother and her family other than for child exchanges or for
Child’s events related to sports and school.
On remand from Supreme Court, Father
argues that there were insufficient facts to support entry of DVO. CA agreed, in light of previous precedents
establishing that “unwanted touching,” standing alone, is insufficient evidence
for entry of a DVO. CA also found FC
erred by basing its decision on Father’s actions in domestic case, holding that
this bad behavior was not connected to the incident of domestic violence and
therefore cannot form the basis for entry of the DVO.
Linda Williams has appealed from judgment of Calloway Family Court
modifying custody of the parties’ minor daughter, Jessica Frymire, from sole to
joint and naming Linda’s former husband and Jessica’s father, David Frymire, as
the primary residential parent. Linda
contends the court did not have jurisdiction to consider David’s motion to
modify, and if the forum was appropriate, abused its discretion in modifying
the primary residential parent.
The parties were married twice; first from 1992 to 1996 and a second
marriage which occurred in 2000. Jessica
was born in 2005. In 2006 Linda filed a
petition in Fayette County to dissolve the marriage. David failed to appear at the final hearing
regarding custody of Jessica and Linda was awarded sole custody and child
support. The final decree was entered in
January, 2007. When Linda moved to
Woodford County in November, 2007, she moved to transfer the matter to Woodford
County. In July, 2010, she moved to
change the venue again, this time to Calloway County. Linda and Jessica moved to Missouri, but
David remained in Calloway County.
In January, 2011, David filed a motion in Calloway Family Court
requesting modification of custody or timesharing, for modification of child
support, and restricted visitation. The
basis for David’s motion was an email from Linda announcing that five-year-old
Jessica was transgender and would from that time on be considered a boy, wear
boy’s clothing, and be called Bridge.
Linda would not listen to any challenge regarding this decision. David’s motion notified the court that Linda
had previously raised unfounded concerns about Jessica’s vision, hearing, and
speech and her suspicions that Jessica had Asperger’s Syndrome. David requested appointment of a child
psychologist and a custodial evaluation, which the court granted.
The trial court concluded that Kentucky retained exclusive and continuing
jurisdiction pursuant to statute because David was a Kentucky resident and that
Kentucky was not an inconvenient forum.
A modification hearing was held on August 3 and 4, 2011.
David testified that Linda has bipolar disorder and her belief that
Jessica is transgender developed after she viewed a television special on the
topic. David’s sister, Betsy Porter, and
his mother, Phyllis Frymire, both testified that Jessica played like a girl,
but conceded that she was not a “frilly” girl.
David’s father and his girlfriend both testified that they did not
believe there was a gender issue.
Dr. Sarah Shelton, a clinical psychologist appointed by the court to
perform a forensic custodial evaluation of parents and child, found no support
for the diagnosis of gender identity disorder, and that Jessica should be
treated with gender neutrality. She
recommended a change in custody. Dr.
Dale Owens, a child clinical psychologist, performed an independent evaluation
of Jessica’s medical records and found that only Dr. Shelton’s reports were
objective and thorough.
Dr. Patricia Berne, Jessica’s treating psychologist, recommended
affirming Jessica’s gender choice. She
admitted she did not perform any psychological tests and was confident in
diagnosing gender identity disorder, because in her opinion, gender is
innate. Dr. Robin Park, a psychologist,
testified at the request of the court.
After meeting with Linda, Dr. Park was concerned about possible sexual
abuse and referred Linda to Holly Carson to evaluate possible abuse. Linda began cancelling appointments with Dr.
Park who then made a hotline call to report suspected sexual abuse and neglect.
Trina Jansen, a licensed counselor and Jessica’s art therapist,
testified that she diagnosed Jessica with gender identity disorder after the
first visit. Lacking experience with
this disorder, she referred Linda to Dr. Berne.
After internet research and reading books, she felt qualified to write
an opinion letter recommending affirmation of Jessica’s gender identity as a boy.
Linda testified about her difficulty dealing with the diagnosis of
gender identity disorder and trying to follow the recommendations of the
Linda asked Dr. Dean Rosen, a licensed clinical psychologist, for a
second opinion. He concurred in the
finding of gender identity disorder, but admitted he did not contact David or
any of his family members for input.
Clay Williams, Linda’s father, testified that Linda was following the
providers’ recommendations. Rhonda Diaz,
who works at a childcare center in Calloway County that Jessica once attended,
was called by David on rebuttal.
At the closing of the hearing, David requested sole custody, with visitation
for Linda. Linda requested joint custody
with her being named as primary residential custodian. The GAL also recommended joint custody with
Linda remaining as the primary residential custodian.
In August, 2011 the court issued its findings of fact, conclusion, and
judgment, holding that it was in Jessica’s best interest to modify custody from
sole to joint with David designated as the residential parent and visitation to
Linda. The court did not dismiss the
possibility that Jessica has or may have gender identity disorder but noted
that girls can prefer male sports, toys, and clothes without being pathologized,
requiring intervention. Linda was also
ordered to pay child support. Linda then
filed this appeal.
The Court of Appeals ruled that there were significant connections to
Kentucky and substantial evidence in Kentucky for Kentucky to retain exclusive
jurisdiction, after reviewing the factors in KRS 403.834(2), the Court of
Appeals held that the trial court did not abuse its discretion in retaining
The Court of Appeals also agreed that the family court’s decision to
name David as the residential parent was not an abuse of discretion based on
the evidence presented. The Court made
no judgment about the diagnosis of gender identity disorder, but noted that
medical witnesses Linda presented did nothing to establish that Jessica was
properly diagnosed or that Linda was receiving or following competent medical
advice. The Court stated that Linda’s
behavior provided sufficient support for the decision that it would be in
Jessica’s best interest to name David as the residential parent and no abuse of
discretion was perceived.