Divorce Law Journal

J.G. v. J.C., Ky COA, Defacto Custodian

J.G. v. J. C. , _ S.W.3d _ (Ky. App. 2009), 2008-CA-1023

Parents appeal the judgment holding that the grandparents are the de facto custodians of S.G. The parents have three other children, all of whom had been previously removed. Due to previous issues, social services placed S.G. with the grandparents three days after she was born. A couple of weeks later the parents filed a motion to terminate the temporary custody order and have S.G. returned to their care. The trial court denied the motion. The parents then participated with social services to try to regain custody of S.G. After about eleven months, the grandparents filed a petition for declaration of de facto custodian and permanent custody. After numerous hearings, the DRC recommended that the grandparents be deemed the de facto custodians of the child and be awarded permanent custody. The trial court adopted the DRC recommendations. The parents filed exceptions to the findings, a motion to alter the court’s decision, and a motion for further findings of fact. The trial court denied the motions and this appeal followed.

COA found that the grandparents did not meet the statutory requirements for being declared the child’s de facto custodians. COA reversed and remanded, ordering the trial court to make further findings of fact. First, the trial court must determine whether the grandparents met the one year time requirement pursuant to KRS 403.270, especially in light of the tolling requirement of KRS 403.270(1)(a). The time between when the parents filed their motion to terminate the temporary custody order and when the court ruled on that motion does not count toward the de facto custodian time requirement. Next, the trial court must make the findings requested by the parents in a previous motion. Finally, the COA noted that a married couple is considered a single unit for the purpose of de facto custodianship, and therefore a couple may be deemed de facto custodians as opposed to a single individual.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Herald v. Herald, UCCJEA (Child Custody Jurisdiction)

HERALD V. HERALD CHILD CUSTODY JURISDICTION (UCCJEA) 2008-CA-000601 PUBLISHED: VACATING AND REMANDING PANEL: THOMPSON PRESIDING; STUMBO AND GUIDUGLI CONCUR COUNTY: KENTON DATE RENDERED: 2/13/2009

Dad appealed KY TC’s ruling awarding custody of 3 children to Mom, contending that KY TC lacked jurisdiction to make such an order under UCCJEA.

FACTS: Family lived in NC for several years before parties separated and Wife and children moved to KY in April 2007. Dad, a marine, stayed in NC awaiting deployment. In June 2007, parties entered into a separation agreement giving Dad custody of kids, and kids returned to NC where they stayed until Mom removed them again in October. Mom then filed Petition for Dissolution of Marriage in KY in January 2008. A few weeks later, Dad then removed the kids back to NC, refusing to tell Mom of kids’ location or to allow her to speak with him and informing her that he was soon to be deployed to Iraq.

Mom subsequently filed Motion for custody in KY. TC issued order scheduling status hearing for February 19th. On February 15th, Mom filed and was granted an ex parte motion for emergency custody. Dad’s NC counsel corresponded with KY court on February 18, advising that Dad was deployed, kids had lived in KY only 2 ½ months, and providing copy of his motion for custody filed in NC court on February 15. KY TC nonetheless conducted hearing on February 19. Mom testified, but Dad did not appear. KY TC indicated at end of hearing that it would communicate with NC court re proper jurisdiction under UCCJEA, but this never occurred. KY TC gave Mom custody a week later. Dad entered special appearance a month later to move to dismiss case due to KY TC’s lack of subject matter jurisdiction and in personam jurisdiction over him. KY TC declined to dismiss Mom’s custody petition but did stay action under Soldiers’ and Sailors’ Civil Relief Act.

ANALYSIS: Parties conceded that KY was not home state of children for six months, nor that NC had declined to exercise jurisdiction; therefore, KRS 403.822 did not apply. Mom alleged that KY had jurisdiction under KRS 403.828, the temporary emergency jurisdiction provision of the UCCJEA. This statute allows KY jurisdiction where a child in KY has been abandoned or needs emergency protection to prevent or escape from mistreatment or abuse. CA found no allegations of mistreatment or abuse by Mom in refusal to inform her of location of children. Although Dad was due to be deployed to Iraq, TC cannot use this fact against Dad because those serving in military should not be automatically deprived custody of their kids. Furthermore, to allow such justification for exercise of “emergency” jurisdiction would allow a parent seeking custody to file such a petition in any state moment before deployment.
KY TC’s order vacated and remanded for order dismissing petition for custody.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Ky UCCJEA COA Decision February 13, 2009

A digest of Hearld v. Hearld, custody jurisdiction under UCCJEA, will be posted soon

Kentucky Supreme Court January 2009 Family Law

No to be published family law decisions were released by the Kentucky Supreme Court yesterday. Discretionary review was granted in Mullins v. Picklesimer, (child custody, lesbian partner of biological mother). The Court of Appeals opinion is here and our digest is here. Discretionary review was also granted in Mauldin v. Bearden,(child custody, grandparents, UCCJEA) online here and digested here.

Comment On Murphy v.Murphy

A thoughtful comment was posted to Murphy v.Murphy, digested here. As comments can be almost lost below the fold, I thought this one From Donald W. Aaron in Florence deserved posting in its entirety. I was in the courtroom for this case when the wife appeared pro se and requested that the judge vacate his custody order. I agree with the CA's statement of the importance of adequate notice of such a life-altering hearing. Earlier in my career, I had a judge ask me to serve an opposing party directly when no one showed for a post-decree hearing after I only served the prior attorney of record. Now we have an opinion affirming this as good practice. This opinion is also important in providing protection for attorneys, because "as a matter of law, conclusion of a divorce action terminated the attorney-client relationship." In the instant case the wife should not have filed an appeal while a "valid" motion to alter, amend or vacate was pending. If the CA found the motion tolled the time for appeal, and her appeal was vacated as premature, then any appeal filed after the first dismissal could have again been dismissed as untimely, the clock having run. Appeals have tricky trap doors, even for experienced trial counsel. Wife was pro se on appeal, as she was credited with an appellate brief.

L.J.P. v. Cabinet for Health and Family Services, Ky COA, Grandparent Rights In Termination Action

L.J.P. v. Cabinet for Health and Family Services, _ S.W.3d _ (Ky. App. 2008) 2008 WL 4998635

Paternal grandparents appealed trial court order denying their motion to intervene and request for custody of their grandchild in an involuntary termination of parental rights action. The issue on appeal was whether the grandparents have a right under CR 24.01 to intervene in a termination of parental rights action. COA found that grandparents have a “legally cognizable interest” in their grandchildren under Kentucky law. KRS 625.100 recognizes that the child’s relatives have an elevated status when the court awards custody of the child post-termination. It is difficult to understand how grandparents will assert their interest as potential custodians if intervention is not allowed. In addition, grandparent visitation survives termination proceedings if established prior to termination and in the best interests of the child. Pursuant to Baker v. Webb, grandparents have a right to intervene in adoption proceedings. COA held that “[t]he right of grandparents to intervene in an adoption proceeding, recognized in Baker, would be impaired or impeded if the grandparents were denied the right to intervene in the custody determination subsequent to a termination proceeding because the stability of the child as well as the child-grandparent relationship, factors to be considered in a subsequent adoption proceeding, may likely be adversely affected by the custody order that follows termination but precedes adoption.” Therefore, grandparents have a right to intervene in the custody determination under KRS 625.100. REVERSED AND REMANDED
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Heartbroken Holidays: Help for a Child Divided

The first holidays after a divorce or separation can be a heartbreaking nightmare as estranged parents negotiate access to their children. There are ten things parents can do to help their children enjoy the holidays and to serve their best interests in the future.

“Divorce is never an easy experience,” said Gaetano “Guy” Ferro, immediate past president of the American Academy of Matrimonial Lawyers (AAML). “Children can make it more difficult for the parties to reach reasonable agreements. Disagreements about financial issues may cause the parents to act emotionally or irrationally when it comes to the children. The primary goal of both parents and their attorneys should be to avoid conduct which would be detrimental to the children’s best interest.”

• Give your children permission to love the other parent. Help your child make a card for Dad or buy a gift for Mom. Encourage them to call the other parent.
• Set realistic expectations. To divide or share a holiday, each parent will have only half as much time with the child. While children may enjoy multiple celebrations, most do not care that the festivities are actually on “the” day. Holidays can be alternated by year and if Mom does not have Thanksgiving with the child this year, bake a turkey the preceding weekend.
• Coordinate gift giving. If a child has a wish list, split it with the other parent. Resist the temptation to over-indulge the child with gifts. Do not give the child a gift you know the other parent is planning to give. If the other parent will not cooperate, do not complain to the child.
• Do not use your children as messengers. The decision of where to go and when should be decided by the parents. Permitting the child to choose time with one parent is a burden and vests the child with inappropriate power.
• Do what you say you are going to do. Pick up and drop off the children on time. Do not request last minute changes.

Other tips for divorcing parents include never letting a child hear you disparage the other parent. Resist the temptation to permit your child to act as your caretaker. Do not uproot your children if at all possible. Reassure your children that the divorce or separation is not their fault and encourage and permit your child to see and love grandparents, aunts, uncles, and cousins on the other parent’s side of the family.

Over the coming holidays, please let your children be children. They shouldn’t have to worry
about adult problems. For more helpful tips you can access the “Children’s Bill of Rights” and “Stepping Back From Anger” on the AAML website, www.aaml.org.

Many parents contemplate divorce as holidays and New Year approach. Holiday filings can increase the trauma; your children will always associate their parents’ divorce with the holidays. Please resist the urge. Divorce lasts a long time. There’s rarely a reason to rush. At a time of year that resonates family and joy, please put your children’s well-being ahead of your own.

Young v. Carran, Ky COA, Release Of Medical Records In Child Custody Litigation, HIPPA

YOUNG V. CARRAN 2008-CA-000082 PUBLISHED: AFFIRMING PANEL: LAMBERT PRESIDING; KELLER AND WINE CONCUR COUNTY: KENTON DATE RENDERED: 10/24/2008

Mom sought to maintain a private cause of action against Dad’s law firm for violation of HIPAA for the inadvertent disclosure of her medical and psychiatric records to Dad in child custody litigation. TC granted summary judgment. Mom appealed.

Mom signed release as to her medical records, but expressly did not agree to release of records to Dad. After Dad’s firm received the records, Dad ultimately chose to seek other counsel and picked up his file from the firm. He left the package, containing the unreviewed medical records, in his vehicle. Mom removed the package before he reviewed them.
Mom subsequently filed suit against Dad’s former law firm, claiming violation of HIPAA amongst other claims. Dad’s former law firm moved for summary judgment. TC granted the motion, holding that HIPAA does not create a private cause of action for violations such as those alleged by Mom; and furthermore, that KRS 446.070 is limited in applicability to state statutes and does not apply to federal laws such as HIPAA or the laws of other states. Mom appealed.

CA held that HIPAA does not create a state-based private cause of action for violations of its provisions. KRS 446.070 provides an avenue by which a damaged party may sue for a violation of a statutory standard of care if the statute in question provides no inclusive civil remedy and if the party is within the class of persons the statute is intended to protect. However, Mom could not avail herself of this statute because it does not apply to any statutes but Kentucky state statutes. TC affirmed. Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Pennington V. Marcum, Ky S. Ct., Modification Of Custody, Timesharing/Visitation, Primary Residence

PENNINGTON V. MARCUM
2006-SC-000642-DG
PUBLISHED: AFFIRMING
NOBLE PRESIDING
COUNTY: BOYD
DATE RENDERED: 10/23/2008

In this relocation case, SC addressed the nature of child custody, the effects of relocations, and when and how motions relating to relocation after a custody award should be brought.

Custody Defined
SC recognized that, as a consequence of Kentucky’s no fault divorce scheme, joint custody has emerged as Kentucky’s most prevalent custodial arrangement. Joint custody gives both parents full responsibility for and authority over the children at all times, and the parents have a flexible division of physical custody. Shared custody is a subset of joint custody in which the parents’ legal custody might be delineated by court order, parenting time may be scheduled with specificity, and one parent may be designated the “primary residential parent,” or the parent who provides the child’s primary home. Split custody refers to an arrangement in which each parent has sole custody of the child while the child is in his/her care.

Modification of Custody or Visitation on Parental Relocation
The effect of relocation must be viewed either pre- or post-decree. Any orders prior to entry of a decree are temporary orders and may be entered pursuant to KRS 403.280 for custody and KRS 403.320 for time-sharing, and may be modified at any time it is in the child’s best interests to do so. Any decisions made in the decree as to custody are made pursuant to KRS 403.270.
If a decree has been entered, and a relocation motion is filed, the motion is for modification of either custody or timesharing/visitation. If the parent is seeking a change of custody, then KRS 403.340 governs. If the motion requests modification of the timesharing schedule, then KRS 403.320 either applies directly or may be construed to do so. The distinction between modifications for custody versus modifications of timesharing is important, because the court must apply a stricter standard (endangerment to the child) for modifications of custody sought within two years of a prior custody determination. Thus, an important question to be resolved is whether a custodian’s relocation with the child changes the inherent nature of the custody the parties have or merely affects timesharing/visitation. SC held that “Custody is either sole or joint (or the subsets of each) and to modify it is to change it from one to the other. On the other hand, changing how much time a child spends with each parent does not change the legal nature of the custody ordered in the decree. This is true whether the parent has sole or joint custody: decision-making is either vested in one parent or both, and how often the child’s physical residence changes or the amount of time spent with each parent does not change this.” SC recognized that this concept may be too legalistic in a reality-based world, as many parents incorrectly designate “primary residential parent” in their agreements to address the physical possession of the child.
In looking at the most recent SC relocation case, Fenwick v. Fenwick, SC found that much of that opinion must be disregarded as the wrong statute was applied—as the issue was pre-decree, KRS 403.270 (best interests of child) should have been the standard applied, but SC instead focused on who was primary residential parent. Even if the case had been post-decree, the focus should not have been on who provided the primary residence, but on whether an actual change in custody was sought. A parent opposed to relocation but not seeking a change of joint custody should be making a motion for modification of timesharing. “While there is no statute that specifically addresses modification of time-sharing in a joint custody setting, it is reasonable to infer that modifying it does not alter the nature of joint custody. Also, since the nature of the custody does not change, TC is not bound by the statutory requirements that must be met for a change of custody, but can modify timesharing based on best interests of the child as is done in modifying visitation. Looking at Fenwick, SC noted that a modification motion due to relocation by a parent opposed to relocation that does not want a change of custody should probably be a motion for change of primary residential parent, which is a component of timesharing, not custody. This motion would be sought under the standard of KRS 403.320.
The parent seeking modification has the burden of bringing the motion before the court. “A residential parent who wishes only to change the timesharing due to his relocating with the child may bring the motion to modify timesharing under KRS 403.320. If that parent believes the relocation will make a joint custody arrangement unworkable, then the motion should be made for a change of custody from joint to sole under KRS 403.340. The other parent could also file a motion upon learning of the intent to relocate for modification of timesharing, including a requested change of designation of primary residential parent, or he could file a motion for a change of custody. Both parents could file motions requesting modification if their wishes differ.

Application to Parties
Though TC may not have used the correct terminology, TC appropriately modified timesharing schedule by allowing relocation. No abuse of discretion. CA affirmed.

Dissent by Cunningham
Majority opinion failed to provide guidance to lower courts as to standards to apply when one parent relocates. Advocated lower courts to evaluate (11) factors proposed by the American Academy of Matrimonial Lawyers’ Model Relocation Act when considering the best interests of child in relocation matters. “When a custodial parent decides to move a great distance, the non-custodial parent may no longer be deeply involved in the child’s life. The custodial parent has a choice—the choice not to move. The non-custodial parent has no choice and is not only helpless, but essentially stripped of his or her child. The child is also at the mercy of the custodial parent’s choice."

Dissent by Venters
“[TC] took the unilateral relocation of the child as a fait accompli without adequate consideration of impact of the relocation on the child and on the child’s other family relationships. Doing so… encourages such unannounced relocations when [SC] should adopt, or at least promote, a policy that requires the joint custodians to discuss the relocation before it occurs.”
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Frances v. Frances, Ky S.Ct., Modification Of Custody, Timesharing, Primary Residence

FRANCES V. FRANCES
2007-SC-000076-DGE
PUBLISHED: AFFIRMING
NOBLE PRESIDING
COUNTY: TRIGG
DATE RENDERED: 10/23/2008

TC awarded primary physical custody of Child to Dad. Mom claimed that TC's findings of fact were clearly erroneous and that TC improperly considered her relocations as a factor in its decision.
1. Background
The parties were married thirteen years when Mom filed for divorce in May 2004 and Dad moved to the next town a month later. A dissolution decree was entered on June 8, 2005 but custody, visitation, and child support were reserved. A few months after the parties filed for divorce but before entry of the decree parties entered an agreed order on child support Custody and parenting time was never formalized, but the parties shared almost equal time but Mom functioned as the primary residential parent. Both parties adhered to the informal custody agreement until April 2005, when Mom removed Child from school and relocated to Iowa without notifying Dad or TC. Dad filed an emergency motion for temporary custody shortly thereafter, at which time the parties were awarded temporary joint custody. The order provided for nearly equal time sharing and reasonable telephonic communication between the parties and Child. On June 28, 2005, TC awarded joint custody with primary physical custody to Dad, concluding that Mom's unilateral decision to remove Child from school and relocate to Iowa without notifying Dad disregarded the child's best interests. CA affirmed TC, holding that TC was in the best position to make a custody determination and the decision was neither clearly erroneous nor an abuse of discretion.

II. Analysis
Mom argued that it was unreasonable and unfair in light of the evidence for TC to name Dad primary residential custodian when she functioned as Child's primary caregiver throughout her life. Additionally, she argued that it was erroneous for TC to conclude the relocation to Iowa was not motivated by a desire to improve living conditions. Though Mom attempts to characterize TC’s determinations as two distinct errors, CA found that the bottom line is that the finding regarding her relocation to Iowa was simply part of the consideration in determining that it was in Child’s best interest for Dad to be her primary residential custodian.
As TC in this case properly noted, its custody ruling was not entered in response to a motion to modify a permanent order of custody; rather, it was actually the custody determination. As such, TC properly considered the standard required by KRS 403.270, the custody determination statute, which states that custody shall be determined in accordance with the best interests of the child giving each parent equal consideration . The statutory guidelines of KRS 403.270 do not include a definition of the best interests of the child standard; however, KRS 403.270(2) requires TC to consider all relevant factors and provides a list of non-exclusive, demonstrative factors to be considered in custodial determinations. Citing Fenwick as authority, Mom argued that as the primary caregiver in Child's life up until the final custody decree, she was entitled to relocate with her child and that Dad was required to show that the move seriously endangered the child, and that the harm from change of custody to him would be outweighed by the good. However, SC in Fenwick did not consider that relocation had been raised prior to entry of the final custody decree, and thus applied KRS 403.340, the modification of custody statute. In so doing, SC erred because it did not distinguish between a temporary custody order and a custody decree. The effect of relocation by a parent with the child on custody and visitation must be viewed in light of whether relocation occurs pre- or post-decree.
KRS 403.340, the modification of custody statute, speaks to modification of a custody decree. Though Kentucky's child custody statutes include no express definition of custody decree, the statutes distinguish between interlocutory child custody orders and decrees, with the latter meaning a final decision that ends the custody proceeding, is immediately appealable, and is subject to modification at a later date. The decree is the "judgment" (as defined in CR 54.01) in a custody case. Any order entered pursuant to KRS 403.208 is a temporary custody
order; such decisions are "pendente lite," "interlocutory," or "non-final." The trial judge's "final" decision about custody is the custody decree. Finality in this context is different than in most others, however, as the decision, while immediately appealable, is subject to modification at a later time under KRS 403.340.
I n making the final custody decree, TC must apply KRS 403.270, which has a best interests standard. Consequently, most of the discussion in Fenwick about the standard to be applied to modification of custody must be disregarded in this case, as must any rule that appears to give a preference on relocation to a primary residential parent. Here, TC correctly applied the best interests standard, and while Mom obviously disagrees with its findings, this Court cannot depart from them unless the factual findings are clearly erroneous or TC abused its discretion in applying the law.
Though TC stated the relocation of Mom was a substantial factor in the custodial determination, the record also indicates that TC placed significant weight on Child's strong relationship with her father, frequent interaction with the father's extended family, and adjustment within the community. Mom's unilateral decision to disregard these substantial components of Child's life supports the conclusion that it is in Child's best interests that the Dad function as primary residential custodian.
Although Mom did relocate with the child, this case is not about the typical relocation questions of whether the relocation warrants a change of custody or of timesharing. Since this was the actual custody determination, TC had a clear directive to make its decision based on the best interests standard set forth in KRS 403.270. After reviewing the record, it is clear TC's decision was supported by substantial evidence. While some of the evidence conflicted with TC's conclusions, and a different trial court or a reviewing appellate court might disagree with TC, the standard on appellate review requires a great deal of deference both to its findings of fact and discretionary decisions. CA affirmed .
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates