Published: Opinion Reversing and Remanding
Angela Maxwell appeals the decision of the Hardin Family Court to award sole custody of her three children to their father, Robert Maxwell.
The parties were married in October, 1994 and three children were born to the marriage. The parties separated in September, 2010 and Robert filed the petition for dissolution and moved for sole custody of the children. Angela responded to the petition and asked for joint and shared custody.
In October, 2010, the parties entered into a “pre-temporary” agreed order providing for joint custody and alternating physical custody on a week-to-week basis. The order also prohibited a non-family guest to stay overnight when the parent had physical custody of the children.
In March, 2011, a mutual restraining order was issued after motions were filed by both parties. A settlement agreement was entered in January, 2011, reserving child-related issues. A hearing on those matters was held in September, 2011. Robert requested joint custody and designation as primary residential custodian. Angela requested joint custody pursuant to the current arrangement and that the prohibition on non-family guests spending the night during parenting time be lifted.
Witnesses included relatives, a teacher, a soccer coach, and the two older children. The children were happy with the parenting time arrangement and both said they liked Angela’s friend, Angel.
The trial court’s order was entered January 5, 2012 awarding Robert sole custody with Angela’s visitation schedule set by the court. The allotted parenting time was less than the minimum guidelines in the local rules. Both parties were prohibited from cohabitating with another adult during the time they had physical possession of the children, unless they were married to that person.
The standard of review is whether the trial court’s factual findings are clearly erroneous. The reviewing court determines whether the trial court applied the current law and whether the trial court abused its discretion.
Angela argued the family court erred by 1) considering factors unrelated to the best interests of the children, 2) the award of sole custody to Robert was erroneous and an abuse of discretion, 3) the court based its decision on inadmissible evidence, and 4) it was error to restrict the parties from cohabitating during parenting time. Robert countered that the court’s ruling was not made on Angela’s sexual orientation, was not an abuse of discretion, and was based on the best interests of the children in accordance with statutory factors.
The Court of Appeals applied the facts of the case to the statutory factors listed in KRS 403.270(2). The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children. The Court of Appeals held that being a member of a same-sex partnership alone does not meet the criterion of sexual misconduct and to use her sexual orientation as a determinative factor violates Angela’s right to due process, equal protection and fundamental right to parent her children. The trial court found that Angela’s relationship was not in the best interests of the children, but provided no factual findings in support. Harm must have an evidentiary basis and cannot be assumed.
The issue of restricting the parties from cohabitating with a person to whom they are not married was to be retried on remand with the understanding that cohabitation of any party is a factor, but not dispositive on its own. The family court’s decision should be based on the best interests of the children.
The order of the Hardin Circuit Court is reversed and remanded for proceedings consistent with the opinion.