Crews v. Shofner Child custody may be established only after conducting a hearing even when party is otherwise entitled to a default judgment.
Crews v. Shofner Child custody may be established only after conducting a hearing even when party is otherwise entitled to a default judgment.
Bell v. Bell Unreimbursed business expenses may not be deducted from the gross income of an employed parent in calculating child support. However if trial court finds the amount of unreimbursed expenses an extraordinary factor, it may deviate from the guideline award to reach an equitable result.
Cabinet for Health and Family Services v. K.H., Sr. Family court made particularized finding of abuse by each parent which was supported by substantial evidence and properly considered each of the six statutory factors in determining that termination of parental rights was in the child’s best interest. Court of Appeals opinion was therefore reversed and the family court’s order terminating parental rights was affirmed.
Coffey, et al v. Wethington A person acting as a parent has standing to bring a custody action. If the person acting as a parent has physical custody of the child at the time the action is commenced, standing exists and it need not have been for six consecutive months. The six month requirement applies only to persons who had physical custody in the past but who do not have physical custody at the commencement of the action.
Where Ky did not issue original custody decree, neither child currently resides in issuing state and that state declines to exercise exclusive continuing jurisdiction, and one child lives with father in Ky and other child resides with mother in AZ, Ky is clearly the home state of one child and AZ is clearly the home state of the other child. The only issue is whether Ky should decline to exercise jurisdiction to modify because AZ is a more appropriate forum. While splitting jurisdictions should generally be avoided, in this case trial court was reversed because AZ has no connection to the son, no relevant information about the child is located in Az, and none of the factors of KRS 403.834(2) would favor AZ’s exercise of jurisdiciton over KY.
Failure to file two affidavits in support of motion to modify child custody inside two years from final decree does not divest the court of subject matter jurisdiction, overruling Petrey v. Cain. While motion may have lacked requisite number of affidavits, because party did not raise the issue before trial court she cannot raise deficiency on appeal.
Wahlke v. Pierce, No. 2012-000022-ME
Published: Reversing and Remanding
Mother and Father were married in 2000 and filed for dissolution of the marriage in 2008. When the petition was filed, Mother, Father and Child born of the marriage lived in Campbell County, Kentucky. After the dissolution was filed, Mother, with Child, and Father moved separately to Ohio. Neither the child nor the parents lived in Kentucky when the divorce decree was entered in 2009. Mother was awarded sole custody of Child, and Father was awarded visitation and ordered to pay child support. The parties’ continued to litigate post-decree issues related to child support, visitation and attorneys’ fees in the Family Court. In June 2010, Mother filed a motion to relocate and notified the family court that she wanted to move with Child to Abilene, Texas. Mother also filed a motion to modify Father’s visitation schedule to reflect the distance between the parties. The Family Court entered an order granting the motion to relocate and amending the visitation schedule.
Father filed a motion to reconsider the court’s ruling based on a lack of jurisdiction, arguing that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family Court denied the motion, stating that there was substantial information available in Kentucky regarding the child’s care, protection, training and personal relationships, and Father waived the issue by not raising it until the motion to reconsider.
Father appealed, arguing that the Family Court lacked subject matter jurisdiction to modify the original child custody determination under the UCCJEA because there was no exclusive, continuing jurisdiction because neither the parents nor the child lived in Kentucky.
The UCCJEA, codified in Kentucky law, governs disputes concerning the state’s jurisdiction to decide child custody and visitation matters. The Family Court’s jurisdiction to modify a custody arrangement is determined at the time the motion to modify is filed. The Family Court misinterpreted KRS 403.824(1) because the court no longer had exclusive, continuing jurisdiction over the custody matter. A family court’s jurisdiction is exclusive and continuing until one of two circumstances has occurred: neither the child nor a parent of the child has a significant connection with the state and substantial evidence regarding the child is lacking or neither the child nor the parents of the child reside in that state. Therefore, unless a modification of custody has been filed, the state loses exclusive, continuing jurisdiction when the parents, persons acting as parents (if applicable), and child have all physically left the state to live elsewhere. Even if a significant connection existed and if certain evidence was available about the child in Kentucky, the relocation of both parents and the child outside of Kentucky before the filing of the modification divested the Family Court of exclusive, continuing jurisdiction.
Reversed and remanded.
Morgan v. Getter, 2012-CA-000655-ME
Ex-Wife appealed Family Court’s order granting Ex-Husband’s motion requesting that minor child relocate to reside with him in Florida.
Husband and Wife with two children from the marriage divorced in 2003. Ex-Wife had sole custody of the children, and Ex-Husband visited the children periodically with supervised visitation. When the oldest child reached the age of majority, she moved to Florida to attend college near Ex-Husband. Ex-Husband filed a motion for the younger daughter to reside with him in Florida. The Family Court appointed a guardian ad litem (GAL) to represent the child. The GAL filed a report with the court, and the court held a hearing, later ordering that the child could relocate to Florida and live with Ex-Husband. Ex-Wife appealed.
Ex-Wife argued that the court erred when it did not allow her to call the GAL as a witness and denied her request to strike the GAL’s report. Ex-Wife also argued that the court did not follow the law governing a change of custody and improperly determined that the relocation was in the child’s best interest.
The Kentucky Family Rule[s] of Practice and Procedure provide that a GAL may be appointed by the court, but the rules specifically differentiates between GALs and other professionals who may be used in a custody proceeding. The GAL in this case was appointed to represent the child. The GAL was a licensed attorney, and would have violated the ethical rules governing confidential communications and acting as an advocate when the lawyer is likely to be a witness. Although Kentucky law does not specifically define the role of a GAL in custody proceedings, the Family Court properly denied the GAL’s testimony due to the ethical concerns presented.
The court also properly denied Ex-Wife’s motion to strike the GAL report. The court appointed the GAL to counsel the court in formulating a decision. The court has considerable discretion in this area, and it would have been a waste of resources to disregard the report. Because of the inherent conflict and potential for prejudice created by the ambiguity in the statute, the proper role for a GAL in child custody issues should be scrutinized by the General Assembly or Supreme Court. A review of the law in other jurisdictions regarding the role of GALs in custody proceedings did not yield consistent results. Some states prohibit a GAL from testifying, while other states have statutes explicitly stating the role of the GAL and the GAL report and under what circumstances a GAL can be called as a witness and cross-examined. Nevertheless, in this case, the testimony of the witnesses at the custody hearing was thorough and was relied upon more than the GAL report in the court’s decision. Any error from allowing the GAL report to be considered was harmless.
KRS 403.340(3) provides that a court must not change a prior custody determination, unless there is a change in the circumstances of the child or the custodian, and the modification is in the best interests of the child. The Family Court found that Ex-Husband had increased his visitation, that the older sister had moved away from the home to live with Ex-Husband, and the relationship between Ex-Wife and the child had deteriorated. The relocation was in the child’s best interest because Ex-Wife, Ex-Husband, the older sister, and the child all testified at the hearing, and each of Ex-Wife’s concerns about the relocation were addressed in the court’s order. Overall, the court accepted the child’s explanation of the toxic relationship that had developed between her and her mother.
Judge Denise Clayton wrote separately, concurring with the result. Judge Clayton stated that it was improper to admit the GAL’s report because the GAL was the child’s legal representative. The court reached the correct result, but the parties should have never been in the position where the child’s legal representative was also serving as an expert to the court.
Shafizadeh v. Shafizadeh, 2010-CA-000758-MR
Issue: jurisdiction, findings of fact, imputation of income, attorney fees, modification of child custody and timesharing, garnishments, CR 60.02
Published: Affirming in Part, Reversing in Part, and Remanding
In three separate appeals, Ex-Husband appealed numerous orders of FC.
Parties were married for twenty-six years, and at time that Wife filed for dissolution, they had two minor children and two adult children. Wife worked as a bank manager during the marriage but left that employment in 2005 to provide full-time care for the parties’ children. Husband is a businessman and a licensed attorney. During the marriage, Husband incorporated three different businesses, including his law firm. In 2007, his income from the businesses was $40,000. The parties entered a Marital Settlement Agreement dividing these assets, and Husband was required to make a cash equalization payment to Wife as a result. They also entered a custody agreement in which they shared joint custody and a parenting schedule. A trial was held on child support, maintenance, and division of the remaining marital property. FC divided the value of the remaining marital assets equally between the parties, restored two nonmarital assets to Wife, and allocated debt. FC also awarded Wife $750 “open-ended” monthly maintenance and attorney’s fees of $6,412. Lastly, FC concluded Husband was voluntarily under-employed, imputed earnings to him of $60,000 per year, and set child support at $859 per month.
ISSUES AND ANALYSIS:
Before FC issued its opinion, Husband filed petition to disqualify judge. FC subsequently entered its opinion, and SC later denied Husband’s petition. Husband claimed because petition for disqualification was pending when FC issued its opinion, FC had no jurisdiction at that time. CA held that while petition was pending, FC lacked jurisdiction over the particular case (but not subject matter jurisdiction), rendering FC’s opinion premature, and voidable, depending on the outcome of SC’s opinion. As SC denied the petition, the opinion and order was given full force and effect.
Dissipation and Request for Findings of Fact:
Husband claimed FC failed to consider and issue findings regarding funds Wife spent on Christmas gifts, in loans to relatives, and for household expenses and maintenance. Wife contended FC adequately addressed all issues in its order, and even if not, Husband failed to address this complaint in his Motion to Alter, Amend or Vacate. CA agreed with Wife that because Husband failed to raise the issue in his CR 59 motion, he could not raise it on appeal.
Husband claimed that because Wife received $529,301 in marital assets plus her nonmarital assets, she did not lack sufficient property to provide for her reasonable needs; furthermore, he claimed that she is able to support herself through reasonable employment; therefore, she should not be awarded maintenance. CA found FC’s findings were supported by substantial evidence regarding the entitlement to and the amount of maintenance, but agreed with Husband that FC erred in awarding “open-ended” maintenance, holding that such an award thwarts the goal of severing all ties between the parties. This issue was remanded to FC.
Child Support and Imputation of Income:
FC found that Husband operated businesses that do not appear to make a profit and that he earned more than was reflected on his tax returns, and also took note of his earning capacity as an attorney. Husband claimed that FC erred by basing its opinion on the business’ profitability in the past. Wife countered that Husband chose not to use his skills and education and concentrated his efforts on non-profitable businesses and chose not to accept legal clients. CA held that although Husband’s businesses may not be currently profitable due to the economy, he was not fully using his entrepreneurial and business skills and could earn more in the legal industry.
Husband claimed no imbalance of financial resources existed to support attorney fee award. CA disagreed, noting difference in incomes and distribution of debt.
Modification of Child Custody and Timesharing:
1. Wife sought to relocate to Louisiana with minor children and filed Motion to modify parenting time schedule. FC granted Wife’s motion. Husband filed writ petition with SC claiming Wife’s motion was actually motion for change of custody that lacked requisite affidavits, relying on Brockman v. Craig, though SC overruled Brockman to the extent it was inconsistent with Pennington. SC rejected Husband’s writ and CA did as well.
2. Husband filed motion to modify joint custody or, alternatively, modify time-sharing, while Wife’s motion regarding relocation was pending. Attached to Husband’s motion were 4 affidavits and 2 declarations. FC denied his motion, finding that it was filed in less than 2 years from the original order and was missing the requisite 2 affidavits. CA held that declarations could not meet the affidavit requirement because they were not sworn testimony. CA held that FC erred in dismissing the motion for lack of jurisdiction, however, as at least 2 affidavits were submitted. CA directed FC, on remand, to determine whether affidavits state sufficient facts to justify a hearing on the motion.
Wife sought garnishments for attorney fee award. Husband claimed his bank account could not be garnished because it held only his wages. CA disagreed, holding there is no statutory protection for wages placed in the debtor’s control/possession. Husband also requested and was denied sanctions and attorney fees because his social security number was included on the garnishment orders. CA held this decision was within FC’s wide discretion, and FC did not abuse such discretion. Lastly, as Husband filed his motion pro se, there were no attorney fees to recoup.
Husband filed CR 60.02 motion to correct attorney fee award, claiming $945 of the award was incurred by Wife’s attorney in responding to Husband’s EPO appeal, in which CA did not grant Wife’s request for sanctions; therefore, Husband claimed, FC could not award attorney fees to Wife related to that appeal. CA noted that a chief factor guiding the grant of CR 60.02 relief is the moving party’s inability to present his claim prior to the entry of the order sought to be set aside. CA held that Husband could have and should have raised this issue in his direct appeal of the order awarding attorney fees.
Affirmed in Part, Reversed in Part, and Remanded.
Published: Opinion Affirming
Sandra Spreacker appeals from an order of Greenup Family Court which determined that Denise Vaughn, the paternal Great-Aunt of the minor child (B.C.), to be the de facto custodian of that child.
In July, 2010 while baby-sitting B.C., Vaughn noticed severe diaper rash. She contacted Spreacker who requested that B.C. be returned home the next day. The next day, however, Spreacker was arrested. The child’s father was already incarcerated. Although Vaughn had physical custody, she did not have legal custody, so she filed a petition for juvenile dependency, neglect, and abuse in Boyd County.
On July 7, 2010, Boyd District Court granted emergency custody to Vaughn and granted her custody after a temporary removal hearing on July 12. On July 27, Vaughn amended her petition to allege B.C. was medically neglected. After an adjudication hearing on September 14 during which B.C.’s parents admitted to neglect, the court ordered B.C. to remain in Vaughn’s custody.
On January 3, 2011, Vaughn filed a petition for custody in Greenup, her home county. At a hearing on May 3, 2011, the Greenup Family Court found that Vaughn was a de facto custodian and awarded her custody of B.C. This appeal followed.
The Greenup Family Court found that B.C. continuously resided with Vaughn who made sure the child received all necessary medical procedures and Vaughn was the primary financial supporter. B.C. had a Kentucky medical card before custody was awarded to Vaughn and received money from Kinship Care which merely covered daycare expenses. Spreacker argues that Vaughn was not the primary financial support because of these benefits. The Court of Appeals disagreed and said the government benefits only supplemented what Vaughn provided and the benefits did not supplant the primary support of the child.
The Court of Appeals distinguished this case from those involving foster parents, who receive support from the Cabinet. B.C. was never in the custody of the Cabinet and Vaughn is not a foster parent. KRS 403.270 requires a de facto custodian to serve as the “primary” – not the “sole” caregiver and financial supporter.
The Court of Appeals found that because the child is under the age of three and was never “placed” by the Cabinet, the statutory criteria was satisfied. Moreover, the CA held that because Spreacker did not commence a separate action to regain custody, she did not toll the calculation of the statutory time for establishing a de facto custodian.
Truman v. Lillard, 2012-CA-000160-ME
Former life-partner of Child’s adoptive mother appealed from FC’s denial of her motion for joint custody, visitation and to set child support due to lack of standing.
Truman and Lillard were in a marriage-like relationship for four years prior to Lillard obtaining temporary guardianship of her six-month-old nephew, Thomas. Truman and Lillard had discussed plans to start a family, but at that time were waiting to do so as they were both full-time students. However, because Thomas was her nephew and needed a healthy home, Lillard began the adoption process, which was finalized in 2008. The couple was aware that they could not legally jointly adopt Thomas in Kentucky. Although Truman assisted in raising Thomas as one of his “Mommies”, no steps were taken to establish parenting rights for her. In February 2010, the couple broke up and Truman left the Mississippi home she shared with Lillard and Thomas. After a domestic dispute in which Truman attempted to take Thomas, Lillard moved to Lexington with Thomas, obtained a restraining order against Truman, refused further communications from her, and refused to allow her to spend any time with Thomas. Truman filed a petition for joint custody and visitation and volunteered to pay child support. In October 2010, the parties agreed to a visitation order. Lillard subsequently relocated again, to Bowling Green, and sought a transfer of the case to Warren FC based on her new address, which was denied. In November 2010, Fayette FC held a hearing based on whether Lillard had waived her superior right to custody pursuant to Mullins v. Picklesimer. FC orally found she had not, though no written orders were entered. In August 2011, Truman petitioned the court for a status hearing and for written orders on the waiver issue. FC did so, finding Lillard had not waived her superior right and that Truman had no custodial rights, and denied Truman’s request for visitation and for a new trial. Truman appealed, arguing that FC erred by: 1. Failing to transfer the matter to Warren FC; 2. Failing to make sufficient findings of fact on visitation; 3. Incorrectly relying on Picklesimer regarding visitation; and 4. Entering findings of fact not supported by the evidence.
CA disagreed with all of Truman’s contentions. First, Truman’s argument regarding transfer to Warren FC was completely inconsistent with her actions in Fayette FC, and CA held she was judicially estopped from challenging FC’s action which was consistent with her requested relief.
Regarding the sufficiency of findings on visitation, CA held that FC did make findings in this regard and that FC is not required to address every piece of evidence or argument by counsel for findings to be sufficient. So long as FC’s findings reflect a good faith effort at fact-finding and complies with CR 52.01, the findings will be sufficient. CA found that FC’s findings did so and were sufficient.
Next, CA addressed whether FC should have relied on Picklesimer on the visitation issue or if it should have applied the in loco parentis doctrine. CA noted that this reliance was appropriate and that the in loco parentis doctrine has been replaced by the de facto custodian statute; thus, non-parents may attain standing to seek custody or visitation of a child only if they qualify as de facto custodians, if the legal parent has waived her superior right to custody, or if the parent is unfit.
Lastly, CA disagreed with Truman’s contention that the findings of fact relative to custody were not supported by the evidence. CA held, “Although we appreciate the substantial and significant relationship Truman had with Thomas, she was not his parent, she could not qualify as a de facto custodian, and he resided with his only parent, Lillard. … This case serves as an illustration of the exception to Mullins, where we distinguish a non-parent truly acting in the capacity as a parent from the many people who may love, care for and support a child . . . . Not every person who genuinely loves and cares for a child gains custodial rights; waiver requires significantly more. There was no error.
Johnson v. Overbee, 2011-CA-002097-MEPublished: Affirming
Biological parents appealed FC’s ruling denying their petition for custody of Child.
Child of Biological Mother and Father tested positive at birth for multiple illicit drugs, and Cabinet filed and was granted a petition for emergency custody. After one and a half month removal, Biological Parents regained custody of Child. Four months later, Biological Mother shot Child in abdomen while attempting to shoot Biological father—Biological Father had held Child in front of his body as a shield and Biological Mother shot anyway. Cabinet was again granted emergency custody, but this time placed Child with Biological Mother’s Cousin and her husband. FC ultimately conducted adjudication hearing and granted permanent custody of Child to Cousin and her husband. Biological Parents were present at the hearing and represented by counsel, and made no objection to the award of custody, nor did they appeal that award. Almost two years later, Biological Parents filed a petition for custody of Child. FC issued an Order on that petition almost four years later, in which it determined that Biological Parents had waived their superior right to custody of Child, and that it was in Child’s best interests to remain in custody of Cousin and Husband. Biological parents filed this appeal.
CA noted that while biological parents have a superior right to custody of their children, a third party may acquire standing to obtain custody of a child if the biological parent is unfit or if the biological parent waived his or her superior right to custody. For the waiver to be effective, the biological parent must have intended to voluntarily and indefinitely relinquish custody of the child. CA found that Biological Parents did just that at the adjudication hearing, and their failure to file an appeal further evidenced that intent, demonstrating by clear and convincing evidence that Biological Parents waived their superior right to custody of Child. CA noted that there also appeared to be substantial evidence of Biological Parents’ unfitness, but such a finding was rendered moot by the finding regarding waiver.
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.
Published: Opinion Reversing and Remanding
Appellants appeal from the Jefferson Circuit Court’s denial of a CR 60.02 motion to set aside an order in an adoption case requiring visitation between adopted children and their biological siblings.
In 2007, A.M., L.M., and L.S.M. were placed in Appellants’ foster care by the Cabinet for Health and Family Services. Parental rights to the children had been terminated by judgments entered earlier that year. The children have three older biological siblings who were not placed with Appellants.
In January, 2009, Appellants filed petitions for adoption of all three children. At a hearing, the GAL and the family court opined that the adoption was in the best interest of the children so long as Appellants agreed to reasonable visitation with their biological siblings. The family court granted the adoption petitions and entered into the record a statement from Appellants agreeing to siblings visitation after the adoption and a notation that violation is punishable by contempt.
In June, 2010, the GAL filed a motion to hold Appellants in contempt for violating the sibling visitation order. When family court scheduled a contempt hearing, Appellants filed a CR 60.02 motion to set aside the visitation order arguing that family court exceeded its jurisdiction in entering and attempting to enforce the order. When family court passed the motion to the contempt hearing, Appellants filed a petition for a writ of prohibition and a motion for emergency relief in the Court of Appeals. Both were denied on the basis that extraordinary relief was not required because the parties had a remedy by appeal from the contempt hearing. No ruling was made concerning the validity of the visitation agreement. When the family court denied Appellants’ CR 60.02 motion, this appeal followed.
KRS 405.021 provides that grandparent visitation, if already established by court order, could be enforced even after the termination of parental rights. Our legislature has not provided for visitation by family members except grandparents following such termination.
In this case, once the judgment of adoptions was entered, there were no legal ties between A.M., L.M., and L.S.M. and their biological siblings. The Appellants, as the adoptive parents, could have allowed sibling visitation but to judicially require such visitation in the absence of any statutory authority contravenes the legislative intent and Kentucky law.
Therefore, Jefferson Family Court lacked authority to order sibling visitation and Appellants were entitled to CR 60.02 relief. The Order was vacated and remanded to family court for any additional action required.
Wethington v. Coffey, 2011-CA-000555-ME
Published: Vacating and Remanding
Father appealed FC’s order awarding joint custody of his children along with the children’s deceased mother’s nephew and wife, contending that deceased mother’s nephew and wife did not have standing to pursue custody.
Father and Mother shared joint custody of twins after divorce, with Mother providing twins’ primary residence and Father receiving standard visitation schedule. Three years’ later, Father’s visitation was suspended following a social services investigation alleging he had abused his minor daughter (the twins’ half-sister). Father later received visitation once again, but for minimal periods of time. However, he consistently failed to exercise the time he was given and had very little involvement in the twins’ lives over the next six years while Mother was still alive. Meanwhile, Mother’s nephew, his wife and their children, who were approximately the same age as the twins, spent substantial amounts of time with them during the same time period.
The day that Mother died, Nephew and Wife filed petition for emergency custody, indicating in the Petition that Father’s whereabouts were not known. FC granted them emergency custody and two days later, they were granted temporary custody after a temporary removal hearing. They filed for permanent custody a few weeks later. After another temporary custody hearing a few months later, the parties agreed that Father would have visitation with children 4 days a week for the next 2 months. Father again neglected to exercise his visitation. FC drastically limited visitation again but Father still did not exercise all time that was allotted to him. After final hearing, FC found Nephew and Wife had standing pursuant to KRS 403.822(1)(b)1 and KRS 403.800(13); that Father should not have custody because he had inflicted emotional harm on the twins, exhibited moral delinquency, and had abandoned the twins; and that Nephew and Wife should share joint custody with Father but Nephew and Wife would provide primary residence for twins with Father receiving the same drastically limited visitation. Father appealed.
CA agreed with Father that Nephew and Wife did not have standing to pursue custody action. While CA agreed that KRS 403.822 was appropriately relied upon by FC in its analysis of standing in this case, FC misinterpreted and misapplied KRS 403.800(13), which defines “a person acting as a parent” who might have standing under KRS 403.822. Such a person must have legal custody or claim a right to legal custody AND have or have had physical custody of the child for six months of the year preceding the custody action. Here, Nephew and Wife had custody for less than a month prior to filing their petition. CA disagreed with Nephew and Wife’s interpretation that the six month limitation should only be imposed on parties who no longer have physical custody, and thus did not apply to them as the custodians at the time of filing. CA, on a matter of first impression, found that the six month requirement applies to any party seeking custody, regardless of the current physical custody status. Thus, Nephew and Wife did not have standing to pursue custody of twins.
Vacated and Remanded.
Hempel v. Hempel, 2011-CA-000763-MR
Published: Affirming in Part, Vacating in Part, and Remanding
Ex-Husband appealed FC’s order, contending that FC erred by imputing income to him for child support purposes, by arbitrarily reducing his parenting time, and by making an unequal division of the marital estate.
CA agreed with Ex-Husband that there was no substantial evidence to support FC’s finding that he had not regularly exercised the parenting time allotted to him before trial, and that evidence clearly showed that he saw children on an almost daily basis. CA held that FC clearly erred on this issue and remanded for further consideration of the issue.
CA agreed with Ex-Husband that as there was no evidence introduced to show the strength or nature of prevailing job opportunities or the expected earnings levels in the community, and as FC gave no explanation as to how it determined that Ex-Husband could be expected to earn at the same level as Ex-Wife, there were inadequate findings for CA to conduct meaningful review of the decision and the issue was remanded to FC for further findings.
Division of Marital Estate:
CA did not agree with Ex-Husband that FC erred by not giving him equal share of marital estate. CA found no evidence that FC considered any factors other than statutory criteria and that FC did not abuse its discretion in the division.
CA did not agree with Ex-Husband that FC erred by failing to permit him to oversee the Uniform Gifts to Minors Act accounts of the children. CA noted that under statutory provisions, Ex-Wife as monitor of the accounts must keep records available for inspection and that Ex-Husband was permitted to inspect the account.
Affirmed in Part, Vacated in Part, and Remanded.
S.S. v. Commonwealth, 2011-CA-001790-ME
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.
Samson v. Samson, 2011-CA-002181-ME
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.
Published: Opinion Affirming
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 medical providers.
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 jurisdiction.
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.
Published: Opinion Affirming
Jennifer Rice appeals from the order of Bracken Circuit Court denying her motion to alter, amend or vacate its order adopting the report of the Domestic Relations Commissioner which designated Willard Rice, her former husband, primary residential custodian of their three minor children during the school year. She argues that the trial court abused its discretion and that naming Willard primary custodian was palpable error and should be reversed.
When the parties were divorced in 2009, they agreed to grant temporary custody to Willard so the children could continue their homeschooling with Willard’s mother. In their separation agreement, the parties specified that beginning in January, 2010 the parties would share joint custody. The children would be homeschooled by the paternal grandmother when in Willard’s custody and by Jennifer when she had custody.
In October, 2010 Jennifer filed a motion for change of custody requesting that she be designated primary residential custodian and an order requiring children to attend public schools, alleging that test results revealed the children were not functioning at grade level.
A Guardian Ad Litem was appointed, who concluded both parents would be suitable as residential parents and recommended that Jennifer be the primary custodian because of the GAL’s belief that public school would be more beneficial. After the GAL’s report, the parties agreed the children would attend public school regardless of which parent was named primary custodian. The Court referred the issue of custody to the Domestic Relations Commissioner.
The DRC determined that the children should live with Willard during the school year and spend 3 out of 4 weekends each month with Jennifer, allowing the children to remain in or near the home where they grew up and near the paternal grandparents who had been regular babysitters. Willard had a long-term job and stable home, while Jennifer was unemployed and had unstable living arrangements.
The Court entered an order confirming the DRC’s report. Jennifer filed a motion to alter, amend or vacate the order alleging that the DRC’s findings and the GAL’s report supported her contention that it was in the best interest of the children for her to be designated primary residential parent. Jennifer’s motion was denied, the order confirming the DRC’s report was reaffirmed and Jennifer filed this appeal.
Jennifer was not precluded from raising a palpable error claim on appeal pursuant to CR 61.02. The Court of Appeals, however, disagreed that granting custody to Willard during the school year was palpable error that should be reversed.
With respect to Jennifer’s allegation of abuse of discretion, the Court of Appeals considered whether the trial judge’s findings were clearly erroneous or an abuse of discretion which “implied arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)(citations omitted).
Jennifer claimed the trial court’s ruling gave the appearance of improperly favoring grandparents over parents. Although the grandparents watched the children while Willard was working, it did not mean the court granted custody to the grandparents. Modification of the custody agreement was not warranted on the basis of a work schedule.
The Court of Appeals considered the applicable factors in KRS 403.270(2) and held that the trial judge did not abuse his discretion by deferring to the DRC’s recommendations, even though Jennifer claimed the grandfather was in poor health and there was an active DVO against him related to corporal punishment of the children.
The Court of Appeals held that without clearly erroneous findings by the DRC, there was no palpable error or abuse of discretion by the trial court. The trial court’s order denying Jennifer’s motion to alter, amend or vacate the DRC report is affirmed.
No. 2009-CA-002260-ME and 2009-CA-002299-ME
Published: Opinion Affirming
Aaron Kidd appealed from the Perry Circuit Court ruling related to the custody of his daughter, Jaiden. The Court awarded joint custody to Kidd and Jaiden’s maternal great-grandparents, James and Irene Combs, designated the Combses as the primary residential custodians and ordered visitation for Kidd and Jaiden’s mother, Shannon Combs. Kidd contests the Court’s designation of the Combses as de facto custodians and the custody ruling.
Aaron Kidd and Shannon Combs, Jaiden’s parents, never married, but began living together in Lexington in October 2001. Jaiden was born in July, 2002. In February, 2003, Aaron sustained a gunshot wound to the face in the line of duty as a police officer, in a confrontation in which Aaron shot and killed his attacker. The ensuing controversy and safety concerns led Shannon to ask her grandparents (who had raised her) to take Jaiden to Hazard until Aaron recovered and the investigations were complete. When Aaron returned to work as a police officer, Shannon was working and attending college, so they decided to leave Jaiden with the Combses until Shannon completed her education. The parents visited the child in Hazard and the child visited them in Lexington. When Aaron and Shannon broke up in 2006, a paternity test established that Aaron was Jaiden’s father.
Jaiden lived with the Combses from 2003 until 2007. In 2006 it was determined that Jaiden needed dental care but Shannon was afraid to allow the required general anesthesia to be administered. In 2007, Aaron took Jaiden to his own dentist, who performed the necessary extractions and fillings.
In July, 2007 Shannon filed a petition against Aaron for custody and child support and he filed a counterclaim seeking custody of Jaiden. After a temporary custody hearing on August 3, 2007, the Court found the Combses to be de facto custodians and granted them temporary custody. The Combses moved to intervene and for de facto custody. The motion to intervene was granted, the petition was filed and a guardian ad litem was appointed for Jaiden.
A Domestic Relations Commissioner conducted a hearing in February, 2009. The GAL recommended joint custody to the Combses and Aaron, and the DRC recommended sole custody to the Combses, with visitation to Aaron and Shannon. The Court awarded joint custody to the Combses and Aaron with reasonable visitation for Shannon. Aaron appealed the custody ruling and the Combses cross-appealed from the joint custody award, seeking sole custody of Jaiden.
During the pendency of the Appeal, Irene Combs died. Aaron moved to remand this case to circuit court for consideration of his motion to modify custody because of the change in circumstances. After an evidentiary hearing, James and Aaron were awarded joint custody, James continuing as primary residential custodian and visitation as previously ordered for Shannon and Aaron. The case returned to the Court of Appeals to determine if the Combses were properly named as de facto custodians and joined as parties after the temporary custody hearing.
The Court of Appeals held that the circuit court had statutory authority to join the Combses as parties to the custody action and allow them to intervene and petition for custody once it found they met the requirements to be de facto custodians. To determine if the Combses were properly named de facto custodians, the Court of Appeals explained that the meet this status, a person must have been the child’s primary caregiver and the primary financial supporter of the child.
The Court found that the Combses had been primary caregivers and financial supporters of Jaiden and provided her only real home in her first five years. Aaron argued that a six-week period when he took Jaiden to his home broke the period of time required to qualify as a de facto custodian. This was rejected by the Court because the Combses never agreed that Aaron was taking the child for more than a week’s visit.
The Court of Appeals held that the Circuit Court did not abuse its discretion in designating the Combses as de facto custodians and affirmed the 2009 custody award.
N.L. v. W.F., 2010-CA-001787-ME and 2011-CA-000091-ME
Published: Reversing and Remanding
Mother appealed FC order awarding custody of children to children’s fathers.
Mother had two children from two separate fathers. After altercation with her boyfriend, Cabinet filed petition dependency, neglect and abuse (DNA) petitions for both children. Children were placed with Father 1’s parents after temporary removal hearing. At disposition hearing, Child 1 was placed with his father and Child 2 was placed with Father 1’s parents but Father 2 was allowed to take Child 2 with him to his home in Florida. FC then scheduled a permanent custody hearing. At permanent custody hearing, Mother asserted that permanent custody hearing could not be held as neither Father had filed a Motion for Permanent Custody. FC disagreed and proceeded with the hearing, and evidence at the hearing reflected that Mother had history of alcohol and substance abuse but was making progress on Cabinet’s case plan. Cabinet offered evidence regarding the Fathers’ criminal history and home environment. At the hearing, each Father orally requested that he be awarded custody of his Child. FC made oral finding, based upon preponderance of the evidence, that it was in Children’s best interests to be in custody of their Fathers with supervised visitation to Mother, citing Mother’s lifestyle involving drugs and alcohol, though recognizing she was currently doing well. FC completed AOC-DNA-9 form for each child, reducing oral order to written form. In Findings of Fact section, FC checked that it had considered several KRS 403.270 factors, but provided no additional specific findings in the provided space on the form. Mother filed a timely CR 59.05 motion to alter, amend or vacate, asserting that FC could not modify custody on its own motion; that Cabinet was under duty to make reasonable efforts to return children; that FC ignored protective needs of Children given Fathers’ admitted criminal or substance abuse histories; and that FC failed to make written findings in support of custody determination. FC issued order denying Mother’s motion but stated in the Order that it would issue subsequent written order with more detailed findings. This order included no finality language. Mother filed notice of appeal from the Order denying her motion to alter, amend or vacate. FC subsequently issued its Order including detailed findings of fact, including another denial of Mother’s motion to alter, amend or vacate. The findings included general statements regarding children’s relationships with their fathers and Father 2’s parents, existence of mother’s drug and alcohol problems, and recognition that Cabinet thought Fathers were appropriate and Guardian Ad Litem recommended placement with Fathers.
Issue 1: Did Mother properly appeal from FC’s initial denial of motion to alter, amend or vacate?
CA noted that, for an Order to be final and appealable, Rules require that an order must either adjudicate all rights of all parties in a proceeding or lower court must issue finding that there is no just reason for delay as to an order resolving only a portion of all the rights of all the parties in a proceeding, and that portion of all of the rights of all of the parties must be finally resolved. As the initial order did not include this language of finality, then it must have adjudicated all the rights of all the parties in order to be final and appealable. CA found that the Order was inherently interlocutory because of its stated intention to make more detailed findings of fact. However, Mother’s notices of appeals should not be dismissed, but should relate forward to FC’s order containing more detailed findings, per CR 73.02.
Issue 2: Did FC err by conducting a permanent custody hearing, as neither Father filed a motion requesting a change of custody?
CA held that KRS Chapter 620 procedural structure does not preclude a permanent custody hearing and award of custody, so long as the proper procedures are followed, but such a determination is not required under this statute.
Issue 3: Did FC err by granting custody to Fathers?
Mother’s Orders of custody were not in record, so CA could not address the possible procedural deficit in Fathers’ failures to file motion for modification of custody, as CA had no knowledge of validity or content of orders and whether FC had jurisdiction to modify them. However, CA could rule as to propriety of FC’s ultimate decision to award custody. Custody determination in KRS Chapter 620 proceeding must follow standards in KRS 403.270. CA found that FC failed to sufficiently consider and make findings related to KRS 403.270 factors, as FC made no separate finding, apart from pre-printed portion of AOC form, that custody awards were in children’s best interests, nor did ruling take Mother’s progress case plan or Fathers’ past legal issues.
Reversed and remanded to FC.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
Published: Opinion Vacating
Jessica Gossett appealed an order entered by the Hopkins Family Court naming Shannon and Brian Kelley de facto custodians of the minor child of Jessica and Kenneth Gossett and awarding custody to the Kelleys. The appeal was based on matters of venue and adequacy of evidence, but the Court of Appeals was required to vacate the order because the Hopkins Family Court lacked subject matter jurisdiction.
The Gossetts were divorced by a decree entered in Christian Family Court on January 11, 2011. Jessica was awarded sole custody. Ten days later, the Kelleys filed a petition for custody of the minor child claiming standing as de facto custodians and asserting that the Gossetts had waived their superior right to custody. No affidavits were attached to their petition.
On February 21, 2011, there was a venue hearing in Hopkins County, and another hearing in that court on the standing issue on April 27, 2011. Jessica’s venue challenge was rejected and the family court ruled the Kelleys had standing and they were awarded custody.
The Court of Appeals began its analysis by considering subject matter jurisdiction. The Kelleys were aware of the proceedings in Christian Family Court and could have sought standing as de facto custodians, but they did not participate in that action. Sole custody was awarded to Jessica.
Once the Christian Family Court order was entered, any subsequent action affecting custody was a modification. The Kelleys and the Hopkins Family Court relied on KRS 403.270 for subject matter jurisdiction, but only KRS 403.340 provides the court SMJ to modify custody decrees. A motion to modify custody must be accompanied by the requisite affidavit or affidavits. No affidavits were submitted and therefore the Hopkins Family Court never had SMJ. The affidavit(s) must support a change of circumstances of the child or his custodian and modification must serve the best interests of the child. In addition to the failure to file supporting affidavits, the Hopkins Family Court order makes it clear there was no change in circumstances.
Because the Hopkins Family Court lacked subject matter jurisdiction to modify the final custody decree entered in Christian Family Court, the order granting the Kelleys de facto custodian status and awarding them custody is vacated.
No. 2010-CA-000229-MR, No. 2010-CA-000272-MR, No. 2010-CA-000849-MR
Published: Opinion Affirming
Timothy Brosnan appeals and Margaret Brosnan cross-appeals from judgment of Jefferson Family Court dividing marital property and debts and awarding maintenance to Margaret. Margaret also appeals from Jefferson Family Court order denying her motion for attorney fees incurred on appe
Timothy alleges that a social worker was erroneously permitted to offer expert opinion, and that the amount and duration of maintenance awarded to Margaret was an abuse of discretion. Margaret argues the trial court awarded insufficient maintenance, improperly divided parties’ bank accounts, improperly divided credit card debt, failed to require Timothy to keep her on his life insurance policy, and erred when it denied her request to withhold dissolving marriage until January 1, 2010 to permit filing of joint tax returns and denied her request to require Timothy to pay her one half the 2008 tax refund prior to sale of marital residence. She also argues that family court erred when it failed to advance her attorney’s fees on appeal and cross-appeal.
The trial court divided the marital property and ordered Timothy to pay Margaret her share from his half of the proceeds from the sale of the marital residence. The trial court found that Timothy dissipated funds from a joint savings account and ordered him to pay the parties’ entire credit card debt. On the issue of maintenance, the trial court permitted, over Timothy’s objection, the testimony of a social worker who diagnosed Margaret with PTSD and incapable of employment because of a variety of symptoms. Margaret was awarded maintenance for fifteen years and $3000 in attorney’s fees.
Both parties filed motions to alter or amend, both of which were denied. Timothy appealed and Margaret cross-appealed. Margaret also filed a motion in family court for an advance of attorney’s fees for the appeal, which the family court denied.
The Court of Appeals held that family court abused its discretion when it permitted the social worker to opine that Margaret has PTSD. Since the social worker lacks training and education to diagnose psychological disorders, her testimony was inadmissible. The Court concluded, however, that since the trial court did not rely on the social worker’s testimony and based its findings on the factors in KRS 403.200, the error was harmless, not requiring reversal. Margaret’s claims that the maintenance award is inadequate was denied, the Court finding no abuse of discretion. The Court found no abuse of discretion in any of the other issues presented on the appeal or cross-appeal.
On the issue of Margaret’s attorney’s fees on appeal, the Court of Appeals held that family court retains jurisdiction over this matter after an appeal is filed. Prospective fees may be awarded and the trial court retains jurisdiction to alter its award and order reimbursement of any unjustified amounts. Therefore, Margaret shall be permitted to file a motion for attorney’s fees as a result of this appeal.
Published: Opinion Affirming
Rebecca Burton appeals from an order of Lyon Circuit Court modifying parenting time in favor of Nicholas Burton.
The parties are parents of two children, Liam and Megan. When they were divorced in 2006, they agreed to joint custody with Rebecca as the primary physical custodian. After the divorce, Rebecca attended school and worked at Dress Barn, and within a few months, she and the children moved in with her boyfriend, James, to which Nicholas voiced no objection. Immediately after the divorce, Nicholas had limited involvement with the children and Rebecca requested the court to require him to spend more time with the children and assist with childcare while she was in school or working.
In December 2010, Nicholas filed a motion for modification of custody and ex parte relief and alleged the children should be removed from Rebecca’s home because he believed their physical and emotional well-being was at risk. His numerous complaints included allegations that another adult male had moved into Rebecca’s home, that the children were sent to school unclean, inappropriately dressed and without lunch money, that Megan showed no interest in the children’s school work, and Rebecca failed to provide proper medical, dental and vision care for them. An ex parte order granted temporary sole custody to Nicholas who immediately removed the children from Rebecca’s care. On Rebecca’s subsequent ex parte motion, the ex parte order of sole custody was vacated and a hearing was held.
Although James testified that his friend, Jay Harbin, had stayed in their home on several occasions, he had not moved in. Harbin had a 15 year old drug conviction, however, and the trial court found that exposing the children to a convicted felon was not in their best interest. James has three older children who visit on weekends, and the kids enjoy sleeping on couches and sleeping bags. The trial court found this “obviously interrupted” the children’s routine. Rebecca’s failure to sign Megan’s reading log consistently led the trial court to conclude that she did not read with Megan regularly. Teachers did not attribute any improvement in Liam’s behavior to anything Nicholas was doing and further testified that the children were clean and appropriately dressed. Rebecca presented evidence that she provided health and dental care for them.
Rebecca presented evidence that Nicholas was arrested for drunk driving in 2008 while on his way to pick up the children. An officer responding to a complaint about his reckless driving from a passerby found Nicholas and his car on a stranger’s lawn. He was unable to stand up, had urinated on his pants, and failed field sobriety tests. He admitted having taken Ambien but failed to explain the erratic driving. The trial court found this incident of “little probative value.”
After the hearing, the trial court entered findings of fact and conclusions of law and designated Nicholas as the primary residential parent, to which order Rebecca filed this appeal.
At the outset, the Court of Appeals reiterated the holding in Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) that under a request for modification of parenting time, the trial court considers the best interest of the child as set forth in KRS 403.320.
When reviewing a custody decision, the test is whether the trial court’s findings were clearly erroneous or the decision was an abuse of discretion. Findings of fact are only clearly erroneous when they are manifestly against the weight of the evidence. The test is not whether the appellate court would have reached a different ruling, but whether the trial court’s ruling was clearly erroneous, whether it applied the current law, or whether it abused its discretion.
In this case, the CA could not say the TC’s findings of fact were clearly erroneous or that it applied incorrect law. Based on those findings, the trial court decided Nicholas should be the primary residential parent. The CA held that the trial court was in the best position to judge the credibility of the evidence and would not substitute its judgment on appeal. Discerning no reversible error with the trial court’s findings of fact and conclusions of law, the Lyon Circuit Court Order was affirmed.
Published: Vacating and Remanding
Dad appealed CA’s reversal of TC order modifying parenting time without making specific findings, arguing to SC that written findings of fact are not required when TC rules upon a motion to modify visitation provisions of a prior decree, but even if they were required, Mom did not preserve the issue for appeal because she did not move TC for specific findings in accordance with CR 52.04.
FACTUAL AND PROCEDURAL BACKGROUND:
FC awarded Mom and Dad joint custody of children in divorce with no designation of primary residential parent, although effect of parenting time schedule was that Children primarily lived with Mom, a soldier in the Army. A year later, Mom received orders to relocate to Texas and filed a Motion to modify parenting time. After hearing, FC orally indicated that decree would be modified so that Children would live primarily with Dad with Mom having visitation. FC orally provided basis for this decision, specifically discussing factors from KRS 403.270 and several references to “best interests of the children.” Dad’s counsel agreed to submit written order reflecting the court’s decision; however, this Order, which was entered by FC, failed to provide any factual findings or application of KRS 403.270 or best interests of Child standard. Mom appealed FC’s Order to CA. CA reversed FC due to failure to reflect consideration of KRS 403.270 factors, but remanded for further proceedings with no further guidance to FC.
“Compliance with CR 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and [trial courts must] include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions.”
SC also held that a FC’s failure to make the required findings of fact allows CA to remand for findings, even where no motion for specific findings is made. SC provided that, because it was familiar with FC’s oral findings, the case would be remanded to FC for entry of a new order setting forth in writing FC’s findings of fact and conclusions of law, but FC could, for this purpose, rely upon its discussion from the bench at the conclusion of the evidentiary hearing. However, SC noted that it would not expect appellate courts to search video records or transcripts and again emphasized the need for FC/TC to issue written findings.
CA’s order vacated and remanded.
Dad appealed CA’s denial of his writ of prohibition, which sought to prevent Mom’s relocation with Children.
FACTUAL AND PROCEDURAL BACKGROUND:
Mom and Dad divorced, agreeing to joint custody of their two minor children in 2008. In 2009, Mom moved FC for a change in parenting schedule based on her relocation to Louisiana, and FC granted the motion on August 12, 2010. On September 24, 2010, Dad moved CA for a writ of prohibition and for emergency relief under CR 76.36, claiming that FC was acting outside of its jurisdiction, but that even if it did have jurisdiction, there was not adequate remedy by appeal. CA denied writ, summarily dismissing the claim of lack of jurisdiction, but going into much greater detail regarding why Dad had failed to satisfy the adequate remedy by appeal requirement. Dad appealed to SC, arguing only that FC was acting outside it jurisdiction. He contended that Mom’s motion should have been construed as a motion to modify custody, not parenting time. Motions to modify custody require supporting affidavits before FC acquires jurisdiction over them; since there were no affidavits filed in support of Mom’s motion, Dad argued FC lacked jurisdiction to consider it.
Relying on Brockman v. Craig, Dad argued to CA that whenever there is a joint custody arrangement that is silent as to designation of primary residential custodian (“PRC”), any attempt by one parent to relocate would amount to an attempt to acquire, and therefore, change the PRC designation, and this, in turn, is a modification of custody. SC noted that CA in Brockman relied on the holding in Crossfield v. Crossfield that a change in PRC was a modification of custody, but that the Crossfield holding is overruled by Pennington v. Marcum. Per Pennington, a parent seeking to become PRC in a joint custody arrangement is seeking a modification of timesharing, not custody, as a designation of PRC does not alter the decision-making authority of joint custody. As Mom’s motion sought only to change time-sharing, it was not a modification of custody, and she needed not have provided FC with supporting affidavits in order for FC to acquire jurisdiction over the motion.
Cabinet for Health and Family Services, el al v. Ivy, extent of child support and arrearages to be paid by non-custodial parent receiving only SSI benefits.
Keifer v. Keifer, oral findings are insufficient to support order modifying parenting time, written findings of fact are required.
Digests to folow.
For those who have been advocating the absence of discounts in divorce cases using the rationale of Brooks v. Brooks Furniture Mfgrs., Inc, 325 S.W. 3d 904 (Ky. App. 2010), take a look at Shawnee Telecom v. Brown, where the Ky Supreme Court today addresses the method to value dissenting shareholder's stock.
Finally, another non-family law case, University Medical Center, Inc. v. Beglin, et al, adresses the evidentiary issues of spoiliation and adverse inference.
Published: Opinion Reversing and Remanding
S.B. appeals from the Scott Family Court’s dismissal of his action to establish paternity of L.R.C., a minor child born to M.C., for lack of subject matter jurisdiction.
M.C., a married woman, acknowledges she had an affair with S.B. in 2005 and that S.B., and not her husband, is the biological father of L.R.C., born in January, 2006. Since L.R.C.’s birth, M.C. encouraged S.B.’s involvement in L.R.C.’s life and S.B. immediately began providing financial support.
In March, 2006, S.B. wanted a more formal division of time-sharing and filed a petition for paternity. DNA tests confirm that S.B. is L.R.C.’s father by a probability of 99.9%. M.C. filed two answers. The first was dated April 7, 2006 and denied all allegations and requested attorney’s fees. The second answer, dated April 12, 2006 admitted all the allegations in S.B.’s petition and stated that S.B. was L.R.C.’s father.
On April 17, 2006, M.C. filed a petition stating that she and S.B. are L.R.C.’s parents and asked the court to establish custody, award child support, and establish time-sharing. In July, 2006, S.B. petitioned for temporary and permanent custody and support.
For the next two years, the parties returned to court numerous times on matters related to time-sharing, overnight visits, limiting S.B.’s use of alcohol, holidays, insurance and tax credits, and the court entered orders up to August, 2008.
On August 22, 2008 the family court sua sponte entered an order temporarily setting aside all previous orders while it considered the constitutionality of the paternity statutes. S.B. filed a memorandum in support of a custody determination, but M.C. tendered a notice of dismissal and a supporting memorandum. She argued that family court did not have jurisdiction to hear the paternity case and was without jurisdiction to establish custody.
In March, 2009, the family court issued an order denying S.B.’s motion for a custody order and granting M.C.’s motion to dismiss. The court determined that it was without subject matter jurisdiction because KRS 406.180 limits jurisdiction to children born “out of wedlock,” and cited J.N.R. v. O’Reilly, 264 S.W.3d 587 (Ky. 2008). After denial of his motion to alter or amend, S.B. appealed.
The Court of Appeals found that M.C.’s judicial admissions rebut the presumption that her husband was L.R.C.’s father, and in addition, they never challenged the results of diagnostic paternity tests. Not until the family court determined the need to evaluate the constitutionality of the paternity statutes did M.C. change her mind and argued that she had always intended to raise L.R.C. as her husband’s child.
Because the presumption that L.R.C. was born during lawful wedlock has been rebutted, family court had jurisdiction to establish paternity and determine custody. The matter was reversed and remanded to Scott Family Court for a determination of paternity and custody consistent with this Opinion.
Published: Opinion Affirming in Part, Vacating in Part, and Remanding
N.B., (Mother) appealed November 22, 2010 order of Fayette Family Court which addressed issues regarding N.H. (Daughter) the minor child born of Mother’s marriage to C.H. (Father).
The parties were divorced in August, 2002. They agreed to share joint custody with Father the primary residential parent and Mother to have liberal timesharing. Shortly after the divorce, Mother moved to California, but returned to Kentucky in October, 2003. Father and Daughter resisted her efforts to resume regular visitation and Family Court ordered the entire family – Mother and Father and their new spouses – and all the children to counseling.
Mother’s timesharing resumed, but in late 2009, Daughter expressed her desire to stop spending time with Mother. Mother filed for additional counseling and the parties agreed to consult a different counselor, who recommended reconciliation counseling. Mother requested Family Court to enter a counseling order, which Father opposed. Prior to hearing on the motion for counseling, Father filed a notice of intent to relocate Daughter’s residence, but failed to file a motion for permission to relocate or to modify custody or timesharing. After a hearing on Mother’s motion, Mother and Daughter attended one unsuccessful counseling session. Father refused to force Daughter to attend another session, and Mother filed a motion to compliance with the counseling order.
The therapist testified at the hearing on Mother’s motion for compliance and cautioned against forcing the Daughter into unwanted counseling. In two in camera interviews, Daughter expressed distrust of Mother. Mother’s motion was eventually denied and counseling discontinued.
When Mother subsequently learned that Father and Daughter had moved to Texas, she asked Family Court to require return of Daughter to Kentucky and compliance with order to reconciliation counseling. Father responded that he and Daughter had dual residences in Kentucky and Texas and that his contacts with Kentucky were insufficient to trigger requirements of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). After a hearing, the Family Court denied Mother’s motion for return of child to Kentucky, denied her motion for compliance with order of joint custody and denied her request for continued reconciliation counseling. This appeal followed.
First, the Court disposed of Father’s contention that the Order was not final and appealable. Citing several cases supporting continuing jurisdiction in custody matter, the Court concluded there is ample authority to allow review of this order because it relates to Daughter’s care and custody.
Next the Court addressed Mother’s claim that the Family Court abused its discretion in denying her motion to enforce its order for reconciliation counseling. Finding that the court’s decision was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles, termination of counseling was not an abuse of discretion because evidence supported the conclusion that reconciliation counseling would be unsuccessful and possibly counterproductive.
With respect to relocation, custody, and timesharing issues, the Court noted that Family Court equated a jurisdictional question (whether there was sufficient connection with Texas to divest Fayette Court of jurisdiction) with the factual question actually before the court (whether Father and Daughter had relocated to Texas, interfering with Mother’s joint custody and timesharing rights). It was error for the Court to use the UCCJEA to resolve substantive factual questions, and no jurisdictional issue was before the court. The Family Court’s failure to enforce the custody and timesharing order opened the door for Father to engage in the forum shopping the Act seeks to avoid.
The Court of Appeals agreed with Mother’s argument that Family Court should have applied Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). Pennington defines “custody,” “visitation” and “timesharing.” In addition, Pennington clarifies that a relocation is not simply a quantitative, but a qualitative, assessment, and examines whether the facts and circumstances impact the custodial or visitation/timesharing rights of the parent who is not moving. A cross-country relocation such as this must not occur unless it is in the child’s best interest. Such a decision, absent court approval, must be made by both joint custodians. Because the joint custodians failed to agree, the trial court should have conducted a hearing and decided the issue according to the child’s best interest. Family Court failed to do so.
Finally, the Court of Appeals discusses procedural issues at great length, particularly which party bears the burden of proving what is in Daughter’s best interest; In the case at bar, Father filed no motion to modify custody or timesharing, and Mother objected to the relocation and sought enforcement of the existing order. The Family Court did not address Father’s unilateral decision-making, nor did it address the best interest question. Therefore, the case is reversed and remanded for a hearing in accordance with Pennington.
Upon remand, if Father desires a change with sole custody vested in him, he must bear the burden of persuading the Family Court that Daughter’s best interests require such a change. If Family Court agrees, Father may relocate without Mother’s approval. If Father fails to meet his burden that relocation is in child’s best interests, the original custody and timesharing order must be enforced.
After a long discussion of the burden of proof, the Court interpreted Pennington as holding that, between joint custodians, and absent the non-primary residential parent’s motion to modify timesharing, the relocating parent always bears the burden of providing relocation is in the best interests of the child.
Published: Reversing and Remanding
Suzanne Anderson appeals from a Court of Appeals opinion affirming the Franklin Circuit Family Court’s order denying her motion for a change in timesharing of the parties’ minor child to allow her to relocate with the child. She argues that the Family Court’s order cannot stand because no findings of fact were made. The Appellee, Joseph Johnson, asserts that no findings of fact are required on a motion pursuant to CR 52.01 because he only filed a motion, not an action, and that Appellant failed to preserve any issues for appeal.
The parties were joint custodians and shared time with the child equally until April, 2009, when Anderson filed a motion to modify the timesharing schedule so she could relocate to Paducah. After a hearing in May, 2009, the Family Court did not make specific findings of fact with separate conclusions of law, but found that relocation was not in the child’s best interest and denied the motion to modify timesharing. The Court of Appeals affirmed the Family Court, relying on Burnett v. Burnett, 516 S.W.2d 330 (Ky. 1974), and holding that findings of fact were not necessary when the court denied a motion.
The legal standard for a modification decision is whether the relocation is in the best interests of the child. In order to review a judge’s decision, it is necessary to know what facts were relied upon.
Timesharing set by the court on post-decree modification is final and appealable because it is a modification of an existing final order and because KRS 403.320(3) allows modification of a final order whenever it would serve the child’s best interests. A visitation order modifying a final order becomes the new final order and is subject to appeal.
A motion for modification is a vehicle for reopening and rehearing some part of a final order and asks for adjudication on the merits after a hearing. Family Courts must make findings of fact and conclusions of law and enter an appropriate judgment on modification motions.
The Supreme Court declined to follow Hollon v. Hollon, 623 S.W.2d 898 (Ky. 1981). Because it misstates what the statutes require and does not adequately address the effect of CR 52 in its entirety, Hollon is overruled.
When the court omits a finding essential to the judgment, CR 52.04 requires a litigant to make a written request or motion to include a fact completing a judgment. Although CR 52 embodies a burden on the court and the litigant, the court bears the broader burden because it has an express duty to make necessary findings of fact and conclusions of law. CR 52.01 creates a general duty for the Trial Court to find facts and CR 52.04 applies only after the court has complied with its general duty.
In the case at bar, the court’s order included no findings of fact to support the conclusion that the move would not be in the child’s best interests, a violation of CR 52.01. CR 52.04 is not involved here because the court made no findings, rather than good-faith but incomplete findings.
Prior decisions have indicated that Trial Courts do not need to make specific findings of fact and separate conclusions of law on modification motions. When a motion results in a hearing dealing with substantive matters, findings of fact are required before a conclusion of law can be made. These concerns are especially relevant because courts have continuing jurisdiction over children until majority or emancipation. To the extent those cases differ from the holdings in this opinion, they are overruled.
In domestic relations cases, post-divorce motions concerning visitation and timesharing modifications are “actions tried upon the facts without a jury,” which require specific findings of fact and separate conclusions of law, followed by an appropriate judgment. This case is remanded to the Franklin Circuit Family Court to make specific findings of fact and separate conclusions of law consistent with this opinion, followed by an appropriate judgment.
Published: Opinion Dismissing
Appellant, Melissa Ann Druen, appealed from an order denying her motion to dismiss Paula Jean Miller’s petition for custody of Druen’s biological minor child.
Druen and Miller were involved in a romantic relationship and bought a home together in 1998. Druen became pregnant in 2002 after artificial insemination from an unknown donor and later gave birth. The parties separated in 2007. In 2010, Miller filed a petition for custody of the child based on her allegation that she was the defacto custodian since the child had lived with her since the separation and that Druen only exercised visitation rights.
Druen filed a motion to dismiss stating that Miller lacked standing to pursue custody. Before the hearing on that issue, the trial court permitted Miller to amend her petition to include an alternative claim that Druen waived her parental rights. In July, 2010, Druen’s motion to dismiss was denied, finding that Miller had standing to pursue custody under a claim of waiver of parental rights. The Order was designated final and appealable only in regard to standing.
Druen then filed this appeal, seeking reversal of the trial court’s order holding that Miller has standing to pursue custody. The Court of Appeals found the order to be interlocutory and not appealable.
CR 54.01 provides that “a final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02.” CR 54.02 says that if more than one claim for relief is sought, “the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay.” Recital of the finality language will not render appealable an order which is interlocutory by its very nature.
Druen seeks appeal of an order denying her motion to dismiss Miller’s petition on the basis that Miller lacked standing to seek custody. The order, however, does not determine the custody issue and is not final because it did not adjudicate all the rights of the parties. The order granted Miller temporary joint custody and temporary child support but these are also interlocutory and non-appealable.
The Court of Appeals held that this appeal is from an interlocutory order and not properly before the court. The appeal is dismissed.
Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.
Published: Reversing and Remanding
Gary Lee Corns appealed from an Order of Family Court, Lewis Circuit Court modifying an award of joint custody of his minor daughter to a grant of sole custody to his former wife, Taffy Lynn Corns (now Ratliff). The Court of Appeals reversed for lack of subject matter jurisdiction and denial of due process and remanded for further proceedings consistent with this Opinion.
The parties entered into a Separation Agreement on August 30, 2007 and their Divorce Decree was entered that day incorporating the Agreement. They agreed to share joint legal custody of their daughter, Allison, and did not designate a primary residential custodian.
In 2008, the parties could not agree about where to send Allison to school and Taffy asked the court to decide what was in the child’s best interest. The court treated the motion as a request to modify custody and permitted Taffy to file an amended motion and two affidavits. In August, 2008 the court denied Taffy’s request to allow the child to attend school in Carter County rather than in Lewis County where she had attended preschool. The court did not specifically rule on Taffy’s motion to modify custody and designate a primary residential custodian.
In 2009, the parties disagreed about Allison’s need for a tonsillectomy. The court authorized Taffy to schedule the procedure, but allowed Gary to seek a second opinion. If the independent exam produced a contrary medical indication, a hearing could be scheduled. In November, 2009, the second medical examiner concluded the tonsillectomy was unnecessary so in July, 2010 Gary filed a motion requesting a hearing on the tonsillectomy issue and “shared parenting decision making.” Taffy filed a verified response which, in part, agreed that she and Gary could no longer share joint custody. Taffy also filed a motion for the court to hold Gary in contempt for failure to pay his share of medical expenses.
At the hearing on September 9, 2010, Gary appeared without counsel, and requested a continuance because he was not aware that custody was at issue. His request was denied and the hearing was conducted, after which the court sustained Taffy’s motion for a directed verdict on the tonsillectomy issue. On the custody matter, Taffy elicited testimony from Gary regarding his filing a grievance against one of the child’s physicians and contacting the FBI. Witnesses from the Cabinet for Health & Family Services testified about Gary’s claims of fraud against Taffy and eleven reports about Taffy’s family, none of which were substantiated. The child’s teacher testified about Gary’s conduct when the child was mildly disciplined. Taffy told the court that Allison had 14 throat infections between 2008 and 2010
The trial court’s order entered September 14, 2010 granted custody and decision-making authority to Taffy and set out the parenting schedule. Gary’s motion to alter, amend or vacate the order argued that Gary did not receive notice of the hearing for custody modification and objecting to the tonsillectomy procedure. Gary’s motion was denied and the appeal followed.
The Court of Appeals found no abuse of discretion in the trial court going forward and found Gary’s claim of lack of notice “disingenuous.” There were procedural errors, however, which resulted in the trial court’s lack of subject matter jurisdiction. Gary failed to file an affidavit, his motion was not verified, and Taffy’s attempt to join Gary’s motion was ineffectual because Gary’s motion was statutorily inadequate to raise the issue of custody modification. It was error for the court to hear Taffy’s motion to change custody because it had not been scheduled for hearing and Gary had no notice of a hearing.
The orders of Lewis Circuit Court were reversed and remanded for proceedings consistent with this Opinion.
After Child was removed from Mom’s custody by Cabinet because of environmental neglect and the fact that Mom’s husband was registered sex offender, Child was ultimately placed with paternal Grandparents. One year later, Grandparents file motion for designation as de facto custodians and for permanent custody. FC granted permanent custody to Grandparents. Mom appealed.
Mom first argued that Grandparents lacked standing to commence custody action because they did not qualify as de facto custodians. In order to qualify for de facto custodian status, one must provide primary care for a child for a requisite amount of time; but the time after a parent seeks custody of the child is not included. Mom claimed that because she always wished to have Child in her care and because Cabinet’s permanency plan had a goal of returning Child to her care, that qualified as “commencing a legal proceeding,” sufficient to interrupt the one-year primary caregiver requirement of KRS 403.270. CA disagreed that Mom’s wishes or the Cabinet’s permanency goal qualified as “commencing a legal proceeding.” However, CA further found that Grandparents’ standing was conferred by KRS 620.027, which specifically confers to Grandparents the same standing given to parents, provided the child is residing with the Grandparents in a stable relationship. CA held that substantial evidence supported FC’s finding that Grandparents provided a stable environment for Child and therefore had standing.
Mom next argued that because Grandparents agreed to Cabinet’s permanency plan with a stated goal of returning Child to Mom, Grandparents waived their right to seek permanent custody of Child. CA found no precedent or authority for this claim, and further found that to so penalize Grandparents for cooperating with Cabinet would be detrimental to the Cabinet’s purpose.
Next, Mom argued that FC did not give equal consideration to both parties in determining custody, and that FC refused to hear evidence about her fitness to have Child returned to her. CA found that since Mom did not file a motion to regain custody of Child, the proceeding was rightfully limited to Grandparents’ motion for permanent custody, and that FC considered all relevant factors in its determination.
Lastly, Mom argued that FC should have granted her request to speak to Child in chambers. CA found that FC properly quashed subpoena based upon improper service (service upon Child instead of Guardian Ad Litem) as well as the Child’s therapist’s recommendations.
No. 2009-CA-000622-ME on remand from Supreme Court of KY.
Published: Opinion Affirming
Father appealed order of trial court granting permanent sole custody of his three children to their maternal grandparents, the Appellees. He argued that the Trial Court erred in finding him to be an unfit parent and by finding it was in the best interests of the children to be placed with the maternal grandparents.
The only question on appeal is father’s fitness to have sole custody of the children, because the mother stipulated to neglect in Madison Circuit Court and does not appeal.
As a result of more than eight investigations by the Department for Community Based Services related to the mother’s abuse and neglect of the children, the children were removed from the home. The father was implicated for his failure to prevent the mother’s abuse and neglect.
In August, 2006 one child was placed with the maternal grandparents and one child was staying with the paternal grandparents. After gaining temporary custody of these two children, the maternal grandparents filed petitions for permanent sole custody of both. On the recommendation of the Domestic Relations Commissioner, the children were returned to the parents with orders prohibiting corporal punishment. The maternal grandparents were awarded weekly visitation, but the parents failed to produce the children for 23 regularly scheduled visitations.
In August, 2007 the mother violated the court’s order and corporally punished one of the children and father failed to prevent it. The two older children were placed with the maternal grandparents and the infant was placed with them in December. Abuse allegations were substantiated against the mother and both parents were found to have neglected all three children. Mother stipulated to neglect in Madison Family Court, and the court found that father also had neglected them.
After venue was transferred to Estill Circuit Court, the Domestic Relations Commissioner recommended awarding custody to father, visitation rights to maternal grandparents and eventual visitation rights to mother. The grandparents filed exceptions. The trial court subsequently rejected the DRC’s recommendation noting that the court feared “three potential homicides” if the children were returned to Dad because he seemed incapable of protecting them from their mother.
The father appealed and the CA determined that maternal grandparents lacked standing and the TC lacked subject matter jurisdiction due to repeal of KRS 403.420. The Supreme Court accepted the case for discretionary review and held that standing can be waived in Kentucky and circuit courts have SJM over all child custody matters regardless of whether there is a statute specifically allowing such suit. The Supreme Court remanded to Court of Appeals for a determination on the merits.
Father’s only argument on appeal is that TC’s finding that he was an unfit parent was unsupported by substantial evidence. CA noted that since repeal of KRS 403.420, there is no longer a statute directing the standards to be applied by the TC, and consequently the court used the standards previously employed in cases of nonparents seeking custody. Two ways for a nonparent having physical custody of a child to challenge a biological parent’s superior right is 1) a showing of unfitness sufficient to support involuntary termination or 2) parent’s voluntary waiver of their superior right to custody.
If nonparent shows by clear and convincing evidence that parent’s behavior could result in termination of parental rights, the TC may determine custody under a “best interest of the child” standard, with the nonparent on equal footing with parent. The CA held that the TC made a finding that father was unfit and properly used the best interest standard in making its custody determination. The CA found ample evidence presented at the hearing that father either allowed or failed to prevent mother’s abuse, as well as the adjudication of neglect by the Madison Family Court.
2009-CA-000614-MR and 2009-CA-000632-MR
Mom appealed from FC's order in dissolution action, arguing that FC abused its discretion by setting a shared-custody schedule for the children, by imputing income to her, by awarding an inadequate amount of child support and maintenance, and by its division of the parties’ debts. Dad cross-appealed, asserting that the amount and duration of maintenance was excessive.
After seven and a half years of marriage, Mom, a homemaker, filed a Petition for divorce from Dad, a pilot. Subsequently, FC entered temporary orders granting joint custody of their 2 children as well as 50/50 parenting time schedule based around Dad’s work schedule. FC also ordered Dad to pay Children’s expenses and household bills as well as temporary maintenance of $150 per week.
In its final order, FC continued parameters of temporary parenting time order; imputed income to Mom of $2,000 per month in its child support and maintenance calculation; deviated from the child support guidelines based on the shared parenting schedule and determined child support to be $275 per month; awarded Mom maintenance of $2,000 per month for seven years; and ordered Mom to pay the home equity Line of Credit on the marital residence and half of the mortgage payment until the home was sold, as well as be responsible for her personal credit cards.
Due to Dad’s occupation, FC concluded that a rigid parenting schedule would prohibit him from having regular contact with the children. Mom argued that this schedule was unworkable due to Dad’s failure to communicate with her and because Dad’s work schedule changes constantly and with short notice. CA held that FC’s findings that shared parenting schedule was in Children’s best interests was supported by substantial evidence and thus not clearly erroneous.
Imputation of Income
FC imputed income to Mom in child support and maintenance awards based on her work history prior to Children’s births as a graphic designer, in which she earned $28,000 per year, and her current status operating two concierge businesses from her home, in which she was earning $515 per month but hoped to someday earn $4,000 to $8,000 per month.
CA noted that KRS allows a court to base child support on a parent's potential income if it determines that the parent is voluntarily unemployed or underemployed, without finding that the parent intended to avoid or reduce the child support obligation. However, the maintenance statute does not explicitly address imputation of income to a voluntarily underemployed or unemployed spouse. CA held that, as a matter of first impression, maintenance statute implicitly allows FC to impute income to a voluntarily unemployed or underemployed spouse to determine both the spouse’s entitlement to maintenance and the amount and duration of maintenance. Thus, FC committed no error in finding Mom to be capable of earning $2,000 per month and imputing such income to her in its child support and maintenance awards.
Deviation from Child Support Guidelines
CA held that FC justified its deviation from child support guidelines based on the shared-parenting schedule; that the period of time during which children reside with each parent may be considered in determining child support; and a relatively equal division of physical custody may constitute valid grounds for deviating from the guidelines. CA held that FC committed no error.
Amount and duration of a maintenance award are matters within the sound discretion of FC. As noted above, FC was authorized by statute to impute income to Mom. Although CA noted that evidence may have supported Dad’s suggested award of maintenance in declining amounts, such a result was not required. Because of Mom’s long gap in employment history while caring for Children, parties’ comfortable lifestyle during marriage, and Dad’s current earning ability, FC found seven years was reasonable duration for full amount of maintenance, and CA found no error.
Assignment of Debt
FC found that Mom took out the home equity line by forging Dad’s signature on the documents, and that funds were not used for home renovations as Mom testified; FC also found that Mom’s personal credit card debts were non-marital as Mom produced no evidence regarding what items she purchased. CA found no error in finding these debts to be nonmarital. FC also noted Mom’s ability to pay for home equity line with proceeds from sale of marital residence and thus found allocation of this debt to not be manifestly unfair.
Draper v. Commonwealth of Kentucky, et al, 2010-CA-000112-ME
Heacock v. Commonwealth of Kentucky, et al, 2010-CA-000185-ME
Published: Reversing & Remanding
Shannon Heacock was married to Jesse Heacock who was injured in a boxing match in 1999 and lapsed into a coma leaving him with significant mental and physical impairments. Although Shannon cared for Jesse in their home, she dated other men and in 2002, John Draper moved into the home. In 2004, Shannon gave birth to A.N.H.
In a paternity action filed against Shannon by the Barren County Attorney on behalf of Draper and A.N.H., genetic tests revealed a 99.995% probability that Draper was the father of A.N.H. and on September 4, 2007, entered a judgment determining Draper is A.N.H.’s father. On January 4, 2008 the court entered a temporary support order requiring Draper to pay child support of $401.00 per month.
On January 11, 2008 the court entered an agreed order granting temporary joint custody to Draper & Shannon. Disputes about visitation continued and after both parties sought primary custody, a custodial evaluator was appointed. There was an evidentiary hearing on February 25, 2009 and in her post-trial memorandum Shannon argued that, based on J.N.R. v. O’Reilly,264 S.W.3d 587 (Ky. 2008), the trial court lacked subject-matter jurisdiction. The court reopened the evidentiary hearing and in light of O’Reilly, set aside all prior custody, visitation, and support orders as void ab initio, dismissed the paternity action for lack of SMJ and ordered Shannon to reimburse Draper $11,762 for child support paid under the temporary order. These appeals followed.
The CA conducted a lengthy analysis of O’Reilly, noting its limited precedential value due to the fragmented nature of the opinion, and then discussed the more recent case of Harrison v. Leach, 323 S.W. 3d 702 (Ky. 2010) when the Kentucky Supreme Court reviewed the distinction between standing and jurisdiction as applied to de facto custodians.
CA concluded that KRS 406.011 sets forth standing requirements for a third party to assert paternity of a child born during the lawful wedlock of a husband and wife, but objection to standing may be waived if not timely raised. The CA cited Harrison to explain that “subject-matter jurisdiction involves a court’s ability to hear a type of case while standing involves a party’s ability to bring a specific case. Id. at 705.
The CA found that the family court division of Barren Circuit Court has jurisdiction over paternity petitions and that Shannon’s objection to standing was waived because it was not timely raised. Since Shannon’s objection to Draper’s standing was waived, CA concluded TC erred by setting aside the paternity judgment as void and dismissing Draper’s petition. After reinstating the paternity judgment, the issues raised in Shannon’s appeal concerning recoupment of child support are moot.
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.
Harrison v. Leach, 2010-SC-000018-DGE
Published: Vacating and Remanding
Because the issue of standing, which can be waived, is distinct from the issue of subject-matter jurisdiction, the Supreme Court held that an appellate court cannot, sua sponte, resolve an appeal based on a lack of standing before the trial court when no party had raised the issue of standing in the proceedings below.
The Appellee, Christopher Leach, and his wife, Emily, had three children. As a result of allegations of dependency, neglect or abuse, a family court awarded temporary physical custody to the Appellants, the maternal grandparents of the children. When the grandparents petitioned a circuit court for full custody, the issue was referred to a domestic relations commissioner. (The trial court where the custody action arose does not have a family court.)
The parties stipulated that the grandparents did not qualify as de facto custodians. Even though KRS 403.420 had been repealed, the DRC stated that “the right of a non-parent to initiate a custody action in Kentucky is set forth in KRS 403.420(4)(b).” The DRC concluded that Emily abused the children and Christopher failed adequately to protect them, but found the evidence insufficient to establish that Christopher was an unfit parent. The DRC recommended that Christopher be granted sole permanent custody of all three children.
The Harrisons filed exceptions to the DRC report and the trial court ultimately rejected the DRC’s conclusions and awarded permanent sole custody of the children to the Harrisons. Christopher appealed to the Court of Appeals. Acting on its own motion, the Court of Appeals concluded that repeal of KRS 403.420 meant the Harrisons lacked standing to seek custody and the trial court lacked subject matter jurisdiction to determine the Harrisons’ custody action. The Court of Appeals vacated the trial court’s order and remanded the case to the trial court with directions to dismiss the custody proceedings.
The Supreme Court granted the Harrisons’ motion for discretionary review to determine whether an appellate court may act upon its own motion to decide an appeal based upon a purported lack of standing of one of the litigants. SC concluded that standing is distinct from subject matter jurisdiction and a party may waive a right to contest standing. Thus, an appellate court may not, on its own motion, raise the issue of standing of one of the parties to the appeal and adjudicate the appeal on grounds of standing when no party has questioned another party’s standing.
“Standing” is defined as “a party’s right to make a legal claim or seek judicial enforcement of a duty or right.” Although the Harrisons clearly had an interest in the custody of the children, in the CA’s view, the repeal of KRS 403.420 left the Harrisons without a statutory mechanism to seek custody. The CA believed that lack of standing caused the TC to lack subject matter jurisdiction.
In its analysis, the SC explained that standing and lack of subject matter jurisdiction are not synonymous. Subject matter jurisdiction involves a court’s ability to hear a type of case and standing involves a party’s ability to bring a specific case.
The SC further concluded that Christopher had waived any issues related to standing; it was error for the CA to inject standing into the case. SC held that any question regarding a lack of standing is waived if not timely pled. Even if there is a genuine issue about whether a party lacks standing, the appellate court should not do what the parties have not done themselves.
The CA decision was reversed and the matter was remanded to that court for a determination on the merits of Christopher’s appeal.
Harrison v. Leach. Reversed and remanded to Court of Appeals, as it may not sua sponte raise issue of standing, as standing is waived if not timely pled. A determination of the effect, if any, of the repeal of KRS 403.420 upon the ability of a nonparent who is not also a de facto custodian to file for custody must await a case in which that issue is directly presented. Digest to follow.
Carpenter-Moore v. Carpenter, et al, 2010-CA-000164-ME
Mother appealed from FC’s denial of her motion to relocate with the parties’ three minor children.
Divorce proceedings were initiated in June, 2004. In December, 2004 FC entered an order that the parties would share joint legal custody of their children. A bifurcated divorce decree entered in August, 2005 dissolved the marriage but reserved all other issues, including custody, with all temporary orders to remain in effect pending resolution. An agreed order entered March 21, 2007 stated that the parties would have joint legal custody, with mother the primary residential custodian.
On November 1, 2007 mother filed a motion to relocate to
Father filed a motion on January 30, 2008 for review of parenting time which was set to be heard the same date as the hearing on relocation. The GAL filed her report on February 4, 2008 stating that she did not believe the relocation was in the best interest of the children. On February 6, 2008 mother filed a motion for court to summarily grant her relocation because father had not complied with Fenwick v. Fenwick, 114 S.W.3d 767 (
On February 7, 2008, father filed a motion for a change of custody with two affidavits. At the hearing, the judge requested briefs on the legal issues and gave mother an opportunity to file a response to father’s motion for change of custody.
Each party filed a memorandum and on June 2, 2008, the court held an unrecorded hearing in chambers. On August 11, 2008, the judge issued findings of fact and conclusions of law that father had submitted sufficient evidence of emotional harm to the children, requiring a full evidentiary hearing under KRS 403.340(2).
On October 23, 2008, the Kentucky Supreme Court rendered Pennington v. Marcum, 266 S.W.3d 759 (
Before the hearing on October 31, 2008 father filed a motion to plead in the alternative for modification of visitation/timesharing to name him the residential parent, citing Pennington. The FC decided Pennington applied and that the best interests of the child standard applied to motions for relocation. On November 13, 2008, mother filed a motion for sole custody with no affidavits.
On January 6, 2009, the FC heard the remainder of the evidence and granted father’s oral motion to deny mother’s change of custody motion. Both parties filed position statements at the request of the court.
On March 30, 2009, FC issued an order denying mother’s motion to relocate and reserved all issues for future rulings.
Mother filed an appeal of the March 30 decision which was dismissed as premature because of unresolved reserved issues. The FC then entered an amended opinion and order on December 22, 2009, denying all other motions, maintaining the status quo, making no custody changes and stating the order was final and appealable. Mother appealed from the March 30, 2009 and December 22, 2008 orders.
CA did not find the three month period an unreasonable time in which to file father’s motion and cited Fowler v. Sowders, 151 S.W.3d 357 (Ky. App. 2004) which held that allegations of serious physical or emotional endangerment to a child were not required to support a motion for a change of custody.
The CA found no error in failing to follow Fenwick’s procedural mandates because Fenwick is not applicable to this case.
Mother further argued that FC retroactively applied Pennington and erred by the retroactive application of new law to substantive rights. CA disagreed distinguishing between statutes and regulations and Pennington, a judicial decision. In cases involving new judicial precedent, the CA said “a court is to apply the law in effect at the time it renders its decision.” Commonwealth v. Alexander, 5 S.W.3d 104, 106 (
Mother argued that the FC did not find give appropriate weight to GAL’s report. CA did not find that FC clearly erred when it found relocation was not in the best interest of the children.
Coleman v. Coleman, 2010-CA-000277-ME
Published: Vacating and Remanding
Statute allowing judge to interview child regarding child’s wishes in custody proceedings is permissive rather than mandatory; FC therefore did not abuse its discretion in refusing to interview child. However, FC erred in not allowing child to testify without first conducting a hearing regarding child’s competency to testify, as all persons are qualified to testify and presumed competent to do so unless trial court make a specific finding of incompetency. If child is found to be competent, trial court may maintain control over interrogation and protect witnesses from harassment and undue embarrassment under KRE 611(a)(3).
Miller v. Harris, 2009-CA-002330-ME & 2009-CA-002415-ME
Maternal grandmother of two minor children appealed circuit court’s award of custody of the children to great uncle and aunt, and from order denying her motion for a new trial but modifying the custody order to incorporate requested findings of fact.
At the time of her death in an automobile accident in 2006, Phyllis Coffee had two minor children, a daughter, S.R.S. born in 2003, and a son, T.P.S. born in 2001. The father of the children is an
S.R.S. was a “crack baby,” removed from her mother shortly after birth and spent her first year with relatives including Appellees. Miller was not involved in child’s life. S.R.S. was returned to her mother, but was removed again in September, 2005. The Harrises were awarded temporary custody for about 8 months, during which time Miller did not attempt to contact the child.
When the mother was killed, the Harrises petitioned Marion Circuit Court for custody of S.R.S. T.P.S. was in someone else’s care. In February, 2007, however, temporary custody of both children was awarded to the mother’s twin sister, Debra Penick, and 2 months later, she was awarded permanent custody.
Penick, a single mother with two children of her own, was unable to care for the children. Without court approval, she took the children to
In August, 2008 the Harrises moved Marion Circuit Court to modify custody and set a visitation schedule. The
On September 23, 2008, an
In November, 2008 Miller filed an intervening petition in Marion Circuit Court seeking custody. In February, 2009 the
On July 30, 2009 there was a custody hearing in Marion Circuit Court and on October 22, 2009 the court entered findings of fact, conclusions of law and judgment. On Miller’s motion, the judgment was amended to incorporate additional findings of fact, but her motion for a new trial was denied. Her appeal followed.
When the choice of custodian is between non-parents,
Miller was a 60 year old resident of public housing who has not held a job in two decades and relies on SSI, Medicaid and food stamps. She is single, but has been married and divorced four times. When she divorced the father of her four children, he received custody of all four. She has a long history of substance abuse convictions, as well as a trafficking conviction and theft by deception. She is in poor health and suffers from numerous ailments, including hypertension, diabetes and arthritis. She repeatedly violated court orders with respect to the Harrises’ contact with the children and refused to return them to
The Harrises have been married over 50 years and own the home they have lived in 38 years. They are both retired and draw about $2700 Social Security and pension benefits. Neither has any criminal record and no history of illegal drug or alcohol use.
The Court of Appeals found the trial court’s award of custody to the Harrises was fully supported by the record and there was no abuse of discretion. Miller argued on appeal that the trial court should have interviewed the children, but the Court of appeals said such an interview was discretionary and found no abuse of discretion. Miller asserted that the court gave insufficient weight to her testimony about the period the children lived with her in
Anderson v. Johnson, 2009-CA-001261-ME
Mother filed a Motion to Modify Timesharing based on her intended relocation. FC denied Mother’s motion but did not provide Findings of Fact. Mother directly appealed that Order. Father argued on appeal that Findings of Fact were not required on a post-decree motion to modify visitation. CA agreed, but elaborated:
We draw from these cases … these three rules: (1) CR 52.01 does not require a trial court to make findings on post-decree motions whether they are granted or denied; (2) when a post-decree motion is granted, case law rather than CR 52.01 does require findings of fact and conclusions of law sufficient to address the standard contained in the statute pursuant to which the motion was brought; (3) when a post-decree motion is denied, neither CR 52.01 nor case law requires findings of fact or conclusions of law because implicit in the denial is the finding that the movant failed to produce sufficient proof to require an affirmative finding of the facts on which he relied.
We emphasize that [caselaw does] not leave the unsuccessful post-decree movant without recourse.
We note first that [caselaw] does not deprive any party of the remedial provisions of CR 52. That is, even though CR 52.01 does not require findings on motions, nothing prevents a party from eliciting the trial court’s discretion to enter findings by bringing a motion pursuant to CR 52.02. After all,
Next, and more importantly, nothing prohibits an unsuccessful postdecree movant from appealing the denial of the motion … if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case.
In so finding, however, we do not intend to encourage minimalism in the drafting of orders. …Better practice [would be] for the trial court to make findings of fact...
CA also supported previous application to Supreme Court by another panel of CA to review and revise CR 52.01:
Many motions require a court to try the issues upon the facts. To hold that a trial court is not obligated to make findings of fact when ruling on a motion of any kind except as provided in CR 41.02 necessarily deprives litigants of an understanding of the order or judgment, as well as inhibits any type of meaningful appellate review.
Dissent filed by Chief Judge Taylor, maintaining that Findings are mandatory under CR 52.01 and failure to make them is reversible error; no CR 52.04 motion required to preserve the claim of error.
1. that “physical custody” of KRS 403.800 to KRS 403.880 does not require exclusive care and supervision; rather, where one renders care and supervision concurrently with another or on an equal time-sharing basis, that person would have “physical custody” of a child per KRS 403.800-403.880; and
2. that though KRS 403.822 primarily addresses a court’s jurisdiction to make an initial custody determination, the statute also implicitly identifies those parties who may bring an action seeking initial custody of a child and so also addresses standing in initial child custody determinations.
"As used in KRS 403.800 to KRS 403.880, "physical custody" means "physical care and supervision of a child ." KRS 403.800(14) . This statutory definition of "physical custody" does not require exclusive care and exclusive supervision. Thus a person like Mullins, who for the requisite period of time performed all the traditional parental responsibilities, concurrently with another or on an equal time sharing basis, had "physical custody" under the provisions of KRS 403.800 et. seq."
"Although KRS 403.822 directly addresses the issue of the court's jurisdiction to make an initial custody determination, by identifying the adult persons who must be present in the forum state for jurisdiction to arise (parent or person acting as a parent), the statute implicitly identifies those persons as parties who may bring an action seeking initial custody of the child . It would make little sense to confer jurisdiction to this state when only "a person acting as a parent" resides here, and not at the same time confer standing upon that person to assert initial custody of the child . Otherwise, the state would have jurisdiction of the matter without any resident of the state having standing to bring an action to assert initial custody in the forum. That would clearly be an unreasonable interpretation of the statute, and is one which we believe our legislature did not intend. Moreover, it would make little sense for a person acting as a parent to have standing only if there is a jurisdictional dispute about which is the proper forum state, but not to have standing when there is not a jurisdictional dispute. Again, this would produce an unreasonable result."
There are no new published family law opinions. However, the prior opinion in Mullins v. Picklesimer was modified and a new opinion substituted. We'll have to study the new one, compare it to the prior one, and will post a revised digest if there is anything significant. We'll let you know.
Father appealed FC’s order making Mother primary residential parent of Child.
Mother and Father, never married, had Child in 2000. In 2004, FC entered Order awarding joint custody and designating Father as primary residential custodian. In 2008, Mother moved FC to change custody, based on Father’s history of alcohol abuse, including 2 DUI’s in previous 18 months. FC order joint custody to continue, but changed primary residential parent from Father to Mother. Father appealed.
CA noted that under Pennington v. Marcum, Mother was actually seeking change in parenting time, not a change in custody, and therefore falls under the purview of KRS § 403.320. This statute states that visitation/time-sharing may only be modified upon a proper showing that “modification would serve the best interests of the child.” FC properly relied on Mother’s evidence that demonstrated that it was “in the best interest of the child” that Mother become the primary residential parent.
Cabinet for Health and Family Services v. L.J.P., M.J.P., and D.J.P, 2008-SC-000950-DGE
Issue: Grandparents’ Right to Intervene in Termination of Parental Rights and Adoption Proceedings
Cabinet appealed CA’s reversal of FC’s denial of paternal grandparents’ motion to intervene in termination of parental rights action, where CA held that the grandparents could intervene as a matter of right under CR 24.01. SC held that, given that the proceeding before FC was for termination, and not adoption, grandparents' motion to intervene was correctly denied, and they had no statutory standing to proceed with an adoption.
Soon after Grandchild's birth, his birth parents lost custody of him in a dependency, neglect, and abuse action. Grandchild has since resided in foster care. When Grandchild was about one, Cabinet filed a petition for involuntary termination of parental rights. About four months later, parents filed a petition to voluntarily terminate their parental rights, conditioned on Grandchild being placed for adoption with grandparents, and contemporaneously filed moved to intervene, claiming the filing of the Voluntary Termination Petition gave them standing to do so. FC denied their motion to intervene, finding the voluntary termination petition to be invalid because the involuntary petition was filed first. CA found that grandparents could intervene as a matter of right based on the “elevated status” given to grandparents in custody determinations
SC held that FC incorrectly believed that the effect of the Cabinet’s previously filed petition for involuntary termination was to cause the parents to lose the right to be free from state interference in deciding who shall have custody of Grandchild. Thus, FC believed Voluntary Petition was untimely and could not give grandparents standing. SC held that Involuntary Petition was merely pending as the parents’ rights were not affected until an order issued terminating their rights. The fact that they did file their petition before their parental rights were terminated makes their voluntary petition timely. This alone, however, did not give grandparents standing.
B. The Substance of the Parents' Petition
While the parents clearly could voluntarily terminate their parental rights, even in an involuntary termination proceeding, the real question is whether given the status of their case, they could go further and consent to adoption in a voluntary termination proceeding. Obtaining the consent of parents who retain their parental rights is but the first step of a consent adoption. Pursuant to KRS 199 .470(3), grandparents could not petition to adopt Grandchild unless the Grandchild had been placed with them by the Cabinet or until he had resided with them for at least ninety (90) days immediately prior to the filing of the adoption petition. In this case, Grandchild had never resided with Grandparents. The 90 day residence requirement is a jurisdictional prerequisite so they could not adopt him at that time. Further, SC found voluntary termination petition’s conditional language would have required FC to place Grandchild for adoption with Grandparents, which FC found to be an improper attempt to make an endrun around the requirements of the adoption statute. If the petition had been a proper petition for consent adoption, then Grandparents would have had to invoke FC's jurisdiction to proceed, and they could not meet the statutory grounds to do so. Nonparental relatives or potential custodians such as Grandparents are not mentioned or considered in the termination statutes, and thus it cannot be said that a statute confers an unconditional right to intervene. Furthermore, to the extent that Grandparents' interest is in receiving custody post-termination, it would not be a "present substantial interest" but merely "an expectancy or contingent interest," and thus insufficient to warrant their intervention as a matter of right. FC is statutorily obligated, upon issuing an order terminating parental rights, to "vest care and custody of the child in such person, agency, or cabinet as FC believes best qualified." Thus, Grandparents would be entitled to custody only if the court finds they are the "best qualified" among all potential custodians, something which is purely speculative at this point, especially since parental rights have not been terminated.
CA reversed, and FC order reinstated.
Although family mobility has been global for decades, the United States Supreme Court, for the first time, has interpreted a provision of the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which the United States is a contracting state. The treaty’s full text can be found at
The Hague Convention is implemented in the
In general, a parent seeking return of a child must show that the child was abducted or wrongfully retained in violation of that parent’s custody rights, which depend upon the laws of the state from which the child was removed. That country must have been the child’s habitual residence. The parent must act within one year. The Convention applies to children under age sixteen. The Court may refuse to return the child if the parent seeking return agreed to the removal or retention or if there is a grave risk that the child’s return would lead to physical or psychological harm or if the country to which return is sought violates fundamental principles relating to the protection of human rights and fundamental freedoms.
THE ABBOTT FAMILY
Resolving a split among the Circuits, Abbott v. Abbott, 560 U.S. ____ (2010) holds that the right to veto a child’s removal from the country constitutes a custodial right enabling its violation to invoke the return remedy set forth in the Hague Convention. In so doing, the
In Abbott, the father was British and mother American. They married in 1992, and their son was born in 1995. The family moved to Chile in 2002, but separated in 2003.
The father obtained a British passport for the son, and the mother obtained an Order that the father be prohibited from taking the boy out of Chile. In 2005, while the proceedings were pending in the
The father began Hague proceedings in May 2006. The
Justice Kennedy analyzed that the ne exeat right indeed constitutes a right relating to determination of the child’s residence. The father’s rights affected the child’s language, identity, culture, and traditions. The right also enabled the father to control or prevent disruptions in his visitation by hypothetically conditioning his consent to relocation in a country where the father could obtain employment, thus allowing him to have continued contact with the child.
Justice Stevens filed a dissenting Opinion joined by Justices Thomas and Breyer. The dissent disagreed that the ne exeat rights constituted a right of custody invoking the return remedy under the Hague Convention. Justice Stevens analyzed it as being closer to a right of access, which does not require the return remedy, but rather cooperation of the contracting state to allow that access to the extent possible. Veto power based on Chilean law, the dissent reasoned, is not synonymous with the affirmative authority to establish in which country the child lives. Thus, the veto power would not “transform” the father into a custodian.
WHAT HAGUE CONVENTION CAN AND CANNOT ACCOMPLISH
The decision has been criticized by women’s rights advocates for domestic violence survivors who are concerned that it would burden the ability of women to flee abusive situations. That can certainly be a disturbing consequence of the Hague Convention’s focus on forum rather than results. Perhaps this issue could be more fully developed in construing the defenses and exceptions. Yet, on a positive note, this decision could give momentum to the decisions in other countries in which children abducted from this country are found.
The ultimate tragedy is that this dispute began in 2005, when the child was approximately 10 years old. He is now 15 years of age and nearly grown. Successful mediations involving international parental child abduction have been reported. This solution should be considered by any attorney assisting a parent in a Hague Convention case and that case evaluated for its ability to benefit from this alternative process.