Divorce Law Journal

Williams v. Bittel, Ky COA, Custody Modification and Stay of Foreign Judgment

Williams v. Bittel

PUBLISHED: AFFIRMING
HARRIS, SENIOR JUDGE, PRESIDING; ACREE AND CLAYTON CONCUR
COUNTY: DAVIESS

 

Child’s Aunt and Uncle (“the Williamses”) appealed from TC’s order denying their petition to modify custody of Child and cross-appealed from TC’s order denying their motion to reconsider the petition. Fiance of Child’s deceased mother (“Bittel”) appealed from TC’s order denying his petition to modify custody and to stay a foreign judgment.

 

These appeals presented CA with three issues of first impression:

(1) Whether an out-of-state adoption preempts KY custody orders;

(2) Whether a de facto custodian who is granted joint custody rights must continuously meet the de facto custodial requirements in order to maintain standing in custody proceedings; and

(3) Whether TC could properly condition its deference to the GA courts on Child’s custody and visitation by providing that its prior orders regarding Bittel’s joint custodianship and visitation with Child are not affected. 

 

FACTS:

Child’s biological father never had contact with her.  Mother began living with Bittel while pregnant with child, and after Child was born, they functioned as a family unit.  When Child was 18 mos., Mother died. 

The Williamses assumed the responsibilities of caring for Child, but Bittel remained extremely involved in her life and even moved in with the Williamses.  The Williamses later asked Bittel to leave their home.

When Child was 2, Bittel petitioned for custody of Child.  First, TC found that the Williamses and Bittel were de facto custodians of Child.  Then, both parties were granted joint custody. The Williamses were designated primary residential custodians with liberal visitation given to Bittel. Neither the Williamses nor Bittel appealed. 

When Child was 8, the Williamses notified Bittel that they intended to move to Georgia. Bittel ultimately moved for specific visitation.  The Williamses then filed a motion to modify custody.  The motion was denied based upon the Williamses’ failure to support their motion with an affidavit, as required by KRS 403.350.  TC granted Bittel’s motion for specific visitation and carefully outlined a visitation schedule. TC denied the Williamses motion to reconsider their petition for custody modification.  The Williamses appealed this ruling. 

During the pendency of the custody action in KY, the Williamses adopted Child in Georgia. Bittel attempted to intervene in the adoption, but GA law only allows blood relatives standing to intervene in adoption cases, and he failed.  The Williamses filed the GA adoption decree as a foreign judgment in KY. Bittel moved to stay the foreign judgment. TC upheld Bittel’s rights as joint custodian of Child, despite the adoption, but deferred to GA as the more convenient forum.  Bittel appealed and the Williamses cross-appealed this order.

 

I. Interstate Custody Dispute: Does the GA adoption divest KY of custody jurisdiction? No.

 

The Williamses argued that because KRS 403.802 specifically exempts adoptions from the UCCJEA’s concept of “exclusive, continuing jurisdiction,” jurisdiction of all custody proceedings in this action was relinquished to the GA courts because of the adoption.  CA noted that while the UCCJEA does not apply to adoptions, Bittel never claimed that KY should have jurisdiction over the adoption. CA held that exclusive, continuing jurisdiction of the custody matters remains in KY as long as Bittel resides in KY and maintains a significant relationship with Child, so that the GA adoption did not invalidate or alter TC’s custody orders.  CA noted that the Williamses “successfully circumvented the spirit of the law. Their actions create the precise problems that the UCCJEA and the PKPA attempted to avoid; viz., interstate custody disputes and competition. This loophole cannot be closed by our Court, only by legislative action.”

 

II. De Facto Custodianship: Must Bittel continuously meet the de facto custodian requirements in order to maintain standing in custody proceedings? No.

 

The Williamses argued that Bittel never met the standard for de facto custodians.  CA held that while Bittel’s de facto custodian status was the basis for the TC’s award of joint custody, his standing to participate in the custody proceedings was derived from his joint custodian status. He need not maintain the de facto custodian status in order to maintain standing as a joint custodian as such would place an unfair burden upon non-residential joint custodian.

 

III. The Inconvenient Forum Issue: Could TC properly condition its deference to GA courts on custody and visitation issues by providing that its prior orders regarding Bittel’s joint custodianship and visitation are not affected? “Yes.”

 

CA concluded that TC’s imposition of this condition was allowed by statute, but noted that GA courts may not fully enforce the “previous orders” of the TC. 

 

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

Temple v. Temple, Child Custody, Ky COA

Temple v. Temple, ____S.W.3d____(Ky. App. 2009)

Karen is the adopted daughter of Cheryl and Phillip.  At the time of the adoption, Karen was classified as severely emotionally disturbed.  When the parties divorced, Karen remained with Cheryl.  In 2003, at seventeen years old, Karen had a child, N.T.  Karen and N.T. lived with Cheryl for the first twenty months of the child’s life and Karen relied heavily on Cheryl for the support and care of N.T.  Karen later moved into an apartment with N.T., but still relied heavily on Cheryl.  Karen was investigated for neglect on two occasions, but the allegations were not substantiated.  However, social workers testified that N.T. thrived better with Cheryl than with Karen.  In 2007 Karen gave Cheryl written permission to seek medical treatment for N.T. when necessary.  She also agreed that N.T. should live with Cheryl.  In November 2007 Phillip took N.T. for a visit and did not return him.  Cheryl petitioned the court to declare her a de facto custodian and grant her permanent custody, or in the alternative grant her joint custody.  Karen filed a written response, but did not seek custody for herself.  Instead, she argued that her father should have custody. 

    After a hearing, the DRC rendered findings and conclusions of law that were adopted by the trial court.  The court found that Cheryl was not a de facto custodian, since she failed to meet the one year time requirement.  However, the court found that Karen waived her superior right to custody and therefore granted Cheryl sole custody of N.T.  Phillip and Karen were granted shared visitation with N.T. one weekend a month.  Karen was ordered to pay Cheryl $60 per month child support.  Karen appealed. 

    COA affirmed, finding that Karen had waived her superior right to custody by failing to seek custody for herself.  Karen admitted that she did not want custody of her son.  She stated that if she were awarded custody she would give N.T. to her father.  Her testimony was equivalent to an express waiver.    

    Digested bySarah Jost Nielsen, Diana L. Skaggs + Associates

Mauldin v. Bearden, Ky. S. Ct., Child Custody, CR 60, Continuing Jurisdiction

Mauldin v. Bearden, ___S.W. 3d___ (Ky. 2009)

PUBLISHED: REVERSING
OPINION BY JUSTICE NOBLE; ABRAMSON, CUNNINGHAM, SCHRODER, AND VENTERS, JJ., CONCUR; MINTON, C.J., CONCURS IN RESULT ONLY
COUNTY:

JEFFERSON

Paternal Grandparents appealed from CA decision reversing Jefferson Family Court’s (FC’s) order denying Mom’s motion to set aside FC's judgment awarding permanent custody of Daughter to Paternal Grandparents and her motion for visitation, where FC found that it lacked jurisdiction to consider visitation. 

FACTS: 

At time of Daughter’s birth, Mom and Dad were alcoholics and physically abusive to each other.  Mom had been drunk more than once during her pregnancy and while breastfeeding.  She had also been arrested for PI and DUI during her pregnancy.  Paternal Grandparents filed a petition for temporary and permanent custody and an ex parte emergency motion for temporary custody of Daughter four days after birth of Daughter.  Maternal Grandparents supported the motion, providing an Affidavit regarding both Mom’s and Dad’s unfitness to parent.  FC entered temporary custody order that day and referred the matter to CFC for investigation.    Daughter was immediately taken to Alabama to live with Paternal Grandparents.  CFC subsequently filed DNA action a few days later, which was transferred to same division as custody action consistent with principle of “one family, one judge,” which underlies Family Court, though the actions had and continued to have separate case names and numbers.  The following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. FC reaffirmed its award of temporary custody to Paternal Grandparents.  At a subsequent hearing, Mom and Dad were ordered to participate in a course of rehabilitative treatment and testing and were allowed supervised visitation, though neither ever exercised that right.  Neither Mom nor Dad filed a responsive pleading during this time.

Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed   a response. FC entered a default judgment granting Paternal Grandparents permanent custody.  The supervised visitation order from the DNA proceeding remained in effect, but as CFC was taking no further action, there was no termination of parental rights that would have prevented the ordered visitation.  Mom and Dad were still living together.  Paternal Grandparents then initiated proceedings in Alabama, then the home state of Daughter, to formally adopt Daughter. Daughter had then been living there for nearly a year. Alabama entered temporary decree granting custody to Paternal Grandparents and set a dispositional hearing.  Mom participated in the Alabama proceeding through counsel.  She then filed a motion with Jefferson Family Court (FC) under case numbers for both custody and DNA actions, but noticed only for DNA docket, asking for custody of Daughter.  FC denied her motion as improper on DNA docket.

Mom then filed a motion to set aside the default judgment entered against her and to set a custody hearing, pursuant to CR 60.02(d) and (f). In support of her motion, Mom did not provide a Memorandum but filed affidavits signed by herself, Dad and Maternal Grandparents. Mom's affidavit stated that she believed Dad and Paternal Grandparents had conspired with Dad to prevent her participation; that Dad’s threats of abuse and her lack of access to vehicle or phone prevented her from participating in the permanent custody hearing; and that she otherwise would have defended herself, though she did not provide the basis for her defense.  Dad corroborated the abuse and conspiracy.  Maternal Grandparents stated that Mom was now capable of having custody of Daughter.   

After reviewing rebuttal affidavits and hearing the arguments of counsel, FC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents or collusion occurring between Dad and Paternal Grandparents and that Paternal Grandparents had done nothing wrong in their pursuit of custody of Daughter. FC noted that Mom and Dad stipulated in DNA proceeding that Daughter was at risk of neglect due to their alcohol abuse.  FC agreed that it had jurisdiction, but that that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents. 

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02.  FC denied Mom's motion to alter, amend or vacate, declining to exercise jurisdiction and deferring the visitation issue to Alabama as the home state of the child.  Mom appealed.  CA reversed, vacated and remanded, holding that affidavits submitted by Mom alleged facts that, if true, demonstrated fraud justifying vacation of the judgment, and that FC should hold a full evidentiary hearing with testimony.  CA also found that Kentuckyhad continuing jurisdiction under KRS 403.824, but did not address the fact that FC expressly declined jurisdiction. 

Questions:

Did FC properly deny Mom’s CR 60.02 motion without conducting full evidentiary hearing on fraud allegations?

Does FC have continuing exclusive jurisdiction such that it must make decisions regarding visitation? 

Analysis:

CR 60.02:

SC found that given what FC judge had from affidavits, record, and what he knew from case, he had sufficient information to determine facts and judge credibility of parties without taking further testimony.  FC was well within its discretion to take allegations on their face, and determine if further proof was necessary, as specificity of fraud allegations would be fleshed out by further testimony but not fundamentally changed.  FC judge had already had numerous contacts with parties to judge credibility of the affidavits.  Also, as a policy matter, FC’s decision spared family further turmoil from redundant testimony.

SC further found that Mom did not have nor did she allege defense at time of default judgment, as required by CR 60.02, and that although abuse and addiction are factors that are proper for a court to consider, neither standing alone equate to “facts of an extraordinary nature” required to be present under CR 60.02.  

Continuing Jurisdiction:

SC found that FC did have jurisdiction over actions concerning Daughter because she was born in Kentucky

and had resided here the entire eight days of her life when action was filed. 

SC nonetheless noted several procedural errors.  Paternal Grandparents filed Petition for custody under KRS 403.828, 403.270, and 405.020.  However, none of those statutes were applicable to Paternal Grandparents at that time. KRS 403.270 and KRS 405.020 applied to parents and/or de facto custodians and, since Paternal Grandparents had not had physical custody of nor provided financial support for Daughter for previous 6 months, they were not de facto custodians.  KRS 403.828 grants emergency jurisdiction to Kentucky when a child is brought in from another state that has jurisdiction over the child but is not exercising it.  As Daughter was resident of Kentucky at the time, this statute did not apply. 

SC noted that Paternal Grandparents could have filed a DNA petition under KRS 620.070 and FC could have issued emergency custody order to Paternal Grandparents under KRS 620.060, but that this order would only have been effective for 72 hours and that temporary removal hearing with full notice to both parents would have had to be held during that time.  That did not occur in this case.  Only when FC “renewed” its temporary custody order and ordered supervised visitation for Mom and Dad in the DNA docket did Paternal Grandparents have full legal custody.  FC should not have refused to hear Mom’s motion to modify custody orders just because Mom filed in the DNA action rather than the KRS 403 action.  SC opined that “it makes little sense… to continue to treat this subject matter as separate actions, if the purpose of the family court system is ‘one family, one judge,’” and that, “one a legitimate party properly invokes the court’s jurisdiction…continued compartmentalization of the proceedings—before the same judge—works only to disadvantage some litigants without a sound reason for doing so.”  SC nonetheless found that these problems did not affect the ultimate outcome, for when Kentucky declined to exercise jurisdiction and deferred to Alabama, proper UCCJEA provisions were followed regarding custody and visitation.  Moreover, UCCJEA does not apply to adoption proceedings and FC could make no ruling affecting Alabama

adoption proceeding.

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

Young v. Holmes, Joint Custody, Ky COA Affirmed Order Of Religious School

Young v. Holmes, __ S.W.3d __ (Ky. App. 2009)

           The parties share joint custody of their minor child and could not agree as to where the child should attend kindergarten.  The trial court held a hearing and found that it was in the best interests of the child to attend St. Athanasius School.  Young appealed.  Young argued that the order violates her First Amendment right to religious freedom and that the court could only appropriately order the child to attend St.Athanasius if it found that he had special needs that would require him to attend a private school. 

COA affirmed.  The trial court used the correct standard of best interests of the child and did not base its decision on religious interests.  Young had the burden to prove that “the decision of the trial court was based upon religious interests and such impropriety would not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.”  Therefore, the order did not violate the First Amendment.  Further, the trial court was not required to find that the child had special needs prior to ordering that he attend a private school, since Holmes voluntarily undertook the additional cost of the child’s private education.  Miller v. Miller and Smith v. Smith, cited by Young for that proposition, addressed situations where the trial court had imposed upon a party the additional cost of private education, and thus were not controlling authority in the instant case.    

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

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

Ding Dong Fenwick Is Dead (Almost)

Frances v. Frances involves relocation issues arising prior to the entry of a final custody decree. These were also the facts in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003). The Kentucky Supreme Court now recognizes that the effect of relocation must be viewed in light of whether it occurs pre- or post-decree. In making a final custody decree, the trial court must apply a best interest standard and there is no rule giving a preference on relocation to a primary residential parent.

Pennington v. Marcum concerns post-decree relocation of a child. Justice Noble gives us an excellent primer on modification of custody as opposed to modification of parenting time. Fenwick required a parent opposing relocation to move for a change of custody when the father in Fenwick really only wanted to become the primary residential parent, which is merely a modification of timesharing under joint custody. Pennington v. Marcum holds that a motion for change of custody is not required and a motion to modify visitation/timesharing under KRS 402.320 is sufficient. From the Opinion:

The party seeking modification of custody or visitation/timesharing is the party who has the burden of bringing the motion before the court. A residential parent who wishes only to change the visitation/timesharing due to his relocating with the child may bring the motion to modify visitation/timesharing under KRS 403.320. If that parent believes that 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.
Likewise, when one parent indicates an interest in relocating with the child, the parent opposed need not wait, but could file his own motion. A parent who has equal or nearly equal visitation/timesharing and who wants to prevent a child’s relocation with the other parent, but does not want to change custody from joint to sole, could bring a motion for a change of visitation/timesharing under KRS 403.320. This could result in a designation of that parent as primary residential parent if the child is not allowed to relocate because it is not in his best interest to do so. If that same parent wants to change custody from joint to sole custody to him, he must being the motion for a change of custody and proceed under KRS 403.340.
Both parents may need to bring motions if their wishes differ. For example, if the residential mother makes a motion to modify visitation/timesharing to allow her to relocate with the child, the father may need to make a motion for modification of visitation/timesharing to name him as the residential parent, which would prevent relocation of the child. Or, the father could make a motion to be named sole custodian, and if he could meet his statutory burden, there would be a change of custody which would also defeat the relocation. If neither party wishes to change the nature of the custody, and the court determines that it is in the best interest of the child to relocate with the mother, the father’s visitation/timesharing would be modified to an accommodation as reasonable as possible given the distance of the relocation and the means of the parties.
To the extent this Court’s prior decision in Fenwick and its progeny is inconsistent with this Opinion, it is overruled.

It appears we could sing “Ding Dong Fenwick’s Dead!” but both Opinions talk about overruling Fenwick to the extent it is inconsistent. It will take some digging to determine what part of Fenwick is still alive. Nonetheless, it is a case we no longer have to worry about.

Justice Noble was joined by Justices Abramson, Schroder, and Scott. Justices Cunningham and Venters agree with most of the majority Opinion, but dissent because the trial court gave insufficient analysis to the effect of relocation on the child, a deficiency in large part due to the Court’s failure to provide guidance to trial judges. Factors a trial court should consider include: (1) the age of the child; (2) the purpose of the move; (3) the distance of the move; (4) the worthiness of the move for the child when balanced with any negative effects; (5) the improvement of the child’s standard of living; (6) the physical hardship of travel for the child on visitation with the non-custodial parent; (7) the presence or absence of extended family for the child at the new location versus the existing location; (8) the motivation of the non-custodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?); (9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child; (10) the possibility and plausibility of the non-custodial parent following the child; and (11) the number of times the custodial parent has moved.
Justice Venters' separate dissent espoused the belief that the court should have adopted or promoted a requirement that joint custodians discuss a proposed relocation in advance.

It's a rare day when one can agree with both majority opinions and both dissenting opinions. Our high court tackled the thorny issue of relocation very well.

Full digests of both cases to follow.

Murphy v. Murphy, Ky COA, Modification Of Custody, Notice

Murphy v. Murphy, --S.W.3d – (Ky. App. 2008), 2007-CA-002298-ME

The parties shared joint custody and equal parenting time of their three children. More than a year after the parties’ last interaction with the court, the father moved to modify custody. He mailed the motion/notice to the mother’s attorney of record. The mother’s attorney of record then filed a Notice of Nonrepresentation, stating that she no longer represented the mother, but had mailed a copy of the motion to her last known address.

The court held the modification hearing without the mother, or any legal representative, present, since the mother had an attorney of record. The father even told the court that the mother’s current address was different than the one her attorney of record had mailed the motion to. The court saw no need to take any proof regarding the change of custody in the mother’s absence, and sustained the motion to grant the father sole custody of the children. The mother only learned of the hearing and order afterwards, when the father contacted her to pick up the children.

About a week after the hearing, the mother finally received the motion/notice that her attorney of record had sent. The next day, the mother filed a pro se motion to alter, amend or vacate the judgment, which the court denied. The parties subsequently entered an agreed order regarding parenting time, allowing the mother weekend and Wednesday night visitation. The mother then renewed her motion to alter, amend, or vacate and asked the court to appoint her a GAL. The court denied both motions. The mother appealed.

The mother’s first claim of error was the court failed to find that the father’s motion for change of custody warranted a hearing. The COA found that the father alleged sufficient grounds to justify a hearing.

The mother’s second claim of error was the court, knowing that notice was highly questionable, erroneously allowed the hearing to go forward without her presence. The COA reversed for lack of notice. Conclusion of the divorce action terminated the attorney-client relationship, therefore service of notice on the mother’s attorney of record did not effectuate service on the mother. In addition, once the attorney filed the Notice of Nonrepresentation, a new hearing date should have been set and service made directly on the mother.

The mother’s final claim of error was the court modified custody without finding a change in circumstances or best interests of the children as required by KRS 403.340(3). As there were no affidavits, no testimony, and no findings by the court, the COA reversed and remanded for a hearing and the statutorily required findings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A HEARING AND FINDINGS.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

T.A.N. v. M.J., Ky COA, Custody, Parenting Time

T.A.N. v. M.J.
2007-CA-002584
PUBLISHED: AFFIRMING
PANEL: LAMBERT PRESIDING; STUMBO, THOMPSON CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 9/26/2008

Mother appealed TC’s order providing additional parenting time to her ex-boyfriend, Father.

FACTS:
Mother and Father lived together briefly and conceived Child. Mother accused Father of domestic violence and Father accused Mother of drug use during this time. Mother and Father had no further contact until they went to court to determine custody and visitation. Initially, Mother and Father agreed on a temporary visitation schedule allowing Father short but frequent periods of visitation with child. They also agreed on a custodial evaluator, and that either party had the right to request the other to participate in a drug screening and that Father was to pay the costs for such tests. All of these agreements were adopted into TC’s order. While the permanent resolution of the issues was still pending, Mother filed motion to suspend Father’s visitation with Child, due to Father’s alleged alcohol abuse while Child was in his care. TC overruled Mom’s motion and after the hearing issued an Order giving Father frequent, unsupervised parenting time with Child. Mother subsequently filed a motion for TC to clarify its judgment and to provide particularized additional findings of fact, for supervised visitation, and for clarification on the required drug testing established in previous orders. The parties agreed to attend mediation though the custodial evaluation was not complete. Mediation having failed, several months later, TC ordered Father to contact custodial evaluator and to submit to drug screening on a weekly basis or lose his visitation for that week.
On the day of the trial, Father’s attorney fell ill and TC rescheduled trial. Mother indicated to TC that day that Father had not complied with TC’s order to contact Dr. Cebe and had not complied with the drug screens. That day and later at trial, Father testified that he had contacted custodial evaluator but without prepayment she would not begin the custodial evaluation. TC determined that case could proceed without the custodial evaluation, given that a home study had recently been conducted in 2006 and that the case focused largely on factual issues, which were able to be addressed through testimony and argument. TC found that Father wanted more time with Child, that Father’s testimony was that he did not use drugs, and that Father had enrolled in a parenting class to prepare to care for a baby. It found that Father has sole custody of another daughter, whom TC stated was “thriving in his care and is an honor roll student.” Further, TC took judicial notice of parenting concerns regarding Mother due to her previous drug convictions and removal of sibling children through state prosecuted child protective actions. TC then awarded sole custody of Child to Mother due to “the extent of domestic violence in the relationship.” TC gave Father three weekends per month and one overnight per week.
One week after issuance of TC’s order, Mother filed motion to modify visitation requesting reduced parenting time for Father, arguing that only competent evidence TC had to consider was the home study, and that the home study led the parties to agree that a custodial evaluation should be conducted and TC issued such an order. She renewed her previous arguments that Father had not complied with previous orders regarding the custody evaluation or the required drug screenings. She then argued that TC had ignored its own orders and had instead allowed Father to verbally smear her character by asking the court to take judicial notice of dependency actions that were eight years old. Finally, Mother argued that her proposed visitation schedule was the standard visitation schedule when one parent has sole custody and the other visitation. Father responded that he could not afford the allergy testing of the home, the drug tests, or the custodial evaluation. He argued that TC could conduct the trial without the custodial evaluation and drug tests, because TC still allowed both sides to present evidence and testimony. TC overruled Mother’s motion, providing no grounds for the ruling but simply that the motion to alter, amend or vacate is overruled.

ANALYSIS:
On appeal, Mother presented the same arguments as at trial, in addition to an argument that TC erred in not taking into consideration her work and school schedule when ordering the parenting schedule

CA found that though parties agreed to custodial evaluation and TC adopted agreement into its orders, at no time did TC, on its own, determine that a custodial evaluation was necessary. It was also within TC’s discretion to let trial proceed without custodial evaluation given that the case had gone on for two years. CA held that Mother’s claim that TC ignored its previous drug screen orders was without merit, as Father underwent drug screenings for seven months, none of which came back positive for drug use. Father testified that he could no longer afford to have weekly screenings and was not being permitted to see Child, even when the screenings came back negative. Mother’s claims that TC did not take into account her school and work schedule were not preserved on appeal, and therefore we need not address them. Finally, CA found that TC considered home study in its award of visitation to Father and that TC’s award was not an abuse of discretion. TC’s order affirmed.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

One To Be Published COA Family Law Decision September 26, 2008; None September 19

T.A.M. v. M.J., custody and additional visitation in paternity case. Digest to follow.

S.J.L.S. v. T.L.S., Ky COA Stepparent-like Adoption

S.J.L.S. v. T.L.S., Kentucky Court of Appeals Opinion by Judge Acree, Judge Lambert concurring and Judge Keller concurring in result only, affirming in part, reversing in part and remanding.
As part of the life plan of two women, S gave birth to a child named “Z” by artificial insemination from a donor selected by T. Six weeks after the birth of the child in 2001 T filed a petition for permanent joint custody. S was unrepresented, signed a waiver and acknowledgement and an agreed order of permanent custody was entered.

In 2003 S and T split up and 6 months later T filed an adoption petition. On a family court case information sheet T represented she was a stepparent. Although unnecessary in a stepparent’s adoption, a guardian ad litem was requested and appointed and S and T entered into an adoption agreement that recited that it in no way terminated the parental rights of S. Although no pre-petition involvement of the Cabinet for Families and Children was obtained, the court clerk notified the cabinet upon filing the petition. The Cabinet objected by letter and the court and counsel were aware of the objection. The letters were removed by someone from the court record although a copy of one had been scanned by a court clerk and was part of the record in the court of appeals. Neither party nor the Cabinet took an appeal from the judgment of adoption.

In July 2005 S filed a CR 60.02 motion to vacate the custody and adoption judgment. The court acknowledged it lacked subject matter jurisdiction when both judgments were entered but believed that KRS 199.540(2) is an absolute bar to an attack on a judgment of adoption more than one year after its entry. Because the adoption could not be set aside, custodial arrangements were necessary and thus the trial court denied the CR 60.02 motion.

All of the following issues were addressed by the Court of Appeals in the 61 page opinion and each question was answered in the negative. Quotes from the opinion are in italics.

• Is T the stepparent of Z as indicated in the judgment of adoption?
In Procrustean fashion, the lawyers and family court in this case
tortured the facts of the relationships among T, S and Z to make them fit the
requirements of KRS 199.470(4)(a) and KRS 199.520(2), and then proceeded to
cut off the legs upon which such cases stand – the approval of the Cabinet, the very
agency delegated by our Legislature with authority to carry out its statutes and
underlying public policy regarding adoption....What occurred here amounted to “reinstituting by judicial fiat
common law marriage which by expressed public policy is not recognized....We cannot ignore – and the family court should not have
ignored – the fact that the parties' relationship “simply does not exist as a
‘marriage’ of any kind.”
• Does T’s relationship with S and Z present circumstances sufficiently extraordinary as to justify application of the legal fiction that T was Z’s stepparent?
“Legal fictions” have been frowned upon generally in Kentucky,
particularly when they are misused. They have been called “charades,”....Only where a statute is clearly ambiguous or where its operation leads to an absurd result, may a court use such legal devices as “legal fictions,” and then only for the purpose of carrying out the intent of the Legislature.
• Did the family court properly order the retention of S’s parental rights vis-à-vis Z contrary to the parental rights termination provision of KRS 199.520(2)?
More distressing to this Court than either the recognition of the
parties' relationship as a de facto common law marriage, or the legal
fictionalization of a stepparent-like status, is the universal failure in this case to
properly consider the effect that carrying through with such a ruse could have on
the relationship between Z and his biological mother, S. By pretending during the
adoption proceeding that T was S's spouse and therefore Z's stepparent, the family
court and the parties' original lawyers, including Z's guardian ad litem, put at risk
Z's only familial relationship legally recognizable in this record – the relationship
between himself and the woman who gave birth to him.
Was it proper or lawful for the family court to order the retention of
S's parental rights in direct contravention of KRS 199.520(2)? The question
answers itself, and the answer, clearly, is no....
Since enunciation of public policy is the domain of the Legislature,
any desired change in a legislatively expressed public policy must originate there
and not with the Judiciary....
By what artifice then, and to what end, may this Court sanction grants
of adoption by non-spouses and also avoid the operation of KRS 199.520(2)?...
Despite our agreeing with the notion “that the more familial bonds a
child has is generally better for the child, this court is not in a position to add
words and meaning to a statute that is clear on its face. We can only enforce the
statute as it is written.”...
Therefore, affirming the Judgment of Adoption will mean
that if S is to retain her parental rights with regard to Z, that retention must have a
legal basis other than the words contained in KRS 199.520(2).
• May a party waive the parental rights termination provision contained in KRS 199.520(2)?
The adoption and its effect on S's retention of parental rights are
inextricably related. Even if we held that S waived her right to object to the
adoption, we cannot treat S's reservation of parental rights as a waiver. The subject
statute, KRS 199.520(2), does not create a right personal to either party so as to
allow its waiver by either of them....
We find, as a matter of law, that S cannot waive the public policybased
requirement of KRS 199.520(2) that “[u]pon granting an adoption, all legal
relationship between the adopted child and the biological parents shall be
terminated[.]”
• Does estoppel apply here to maintain S’s parental rights contrary to the parental rights termination provision of KRS 199.520(2)?
The family court should have dispensed with the estoppel argument
by citation to Nussbaum v. General Acc., Fire & Life Assur. Corp., Ltd., of Perth,
Scotland, 238 Ky. 348, 38 S.W.2d 1 (Ky. 1931). Nussbaum holds that “[a]n
estoppel too is only available to a person who is h[er]self innocent and mislead
[sic] by the other party.”...
Additionally, where parties enter into an agreement with the intention
of avoiding the operation of “clear, legislative requirements, the legal
consequences of the statute cannot be avoided by estoppel.”
• Does the concept of “stepparent-like adoption” exist in harmony with Kentucky’s adoption laws?
No, no, and no.
The parties have used the term “stepparent-like” adoption in this case
to mean the adoption of a child by the same-sex partner of that child's biological
parent without the termination of the biological parent's parental rights.11
Philosophically speaking, if “stepparent-like” adoption, as a comprehensive and
acceptable extension of Kentucky's adoption laws, could somehow be incorporated
into our jurisprudence, the specific operation of KRS 199.520(2) terminating S's
parental rights could be avoided. In essence, the family court determined precisely that – that stepparent-like adoption can exist in harmony with our adoption laws,
specifically KRS 199.520(2). We disagree.
After discussing and dismissing all the foreign cases raised in support of the propriety of stepparent-like adoptions without termination of S's parental rights, the court concluded: However, we also find,
within the context of these unique facts, that S's parental rights were not terminated
by operation of KRS 199.520(2).
• Could a valid judgment of adoption be entered in this case without Cabinet consent?
While the court said initially that all these issues are answered in the negative, there was no separate discussion of this issue. However at the end of the opinion the Court said, We trust that this opinion has eliminated the possibility of future attempts at stepparent-like adoptions under our current law. However,
should similar circumstances ever present themselves again, it is our hope that the
Cabinet would exercise its right to intervene in the action for the proper purpose of
establishing the proceeding as adversarial and presenting its relevant position on
the law and the facts of the particular adoption case. Had the Cabinet done so in
this case, a timely appeal could have remedied the numerous errors in this case
before they became indelible.
• Is KRS 199.540(2) – the limitations statue relative to adoptions inapplicable where a judgment of adoption is void ab initio because the family court lacked subject matter jurisdiction to enter it?
Again, while the prelude says all that "no" applies to each of these issues, the opinion upheld the adoption only because of the one year limitation to contest it.
• If the adoption stands, are S’s parental rights terminated as required by KRS 199.520(2)?
In the discussion the court frames the issue and resolution as A Balancing of Competing Public Policies Necessitates S's Retention of Parental Rights
An erroneous judgment, once final, is no less binding than one that is correct in every way....Among the errors in this judgment is the family court's determination,
contrary to KRS 199.520(2), that S retained her parental rights as to Z. “The
strong and sensible policy of the law in favor of the finality of judgments has
historically been overcome only in the presence of the most compelling equities.”
Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). That policy was properly
expressed by our judicial branch19 to preclude parties to a judgment, and those in
privity with them, from relitigating the same issues. We believe that, by enacting
KRS 199.540(2), the Legislature intended not only to ratify this judicial expression
of policy, but to expand it in adoption cases, as a matter of public policy, to be
effective as to all persons without regard to their lack of participation in the
adoption proceeding itself.
However, the public policy expressed in KRS 199.540(2), as applied
to S's retention of parental rights in this case, directly conflicts with the public
policy expressed in KRS 199.520(2) that those same rights must terminate.
Resolution of this case, then, necessarily requires a balancing of these competing
public policies. We will do so, however, we also believe that a third public policy,
expressed in KRS 402.040(2) and Section 223A of Kentucky's Constitution
prohibiting same-sex marriage, has no place in our analysis. Our analysis would
result in an identical outcome if T had been S's heterosexual male partner.
While both expressions of public policy are equally significant, we
conclude under the facts of this case that equities weigh in favor of allowing this judgment of adoption, as erroneous as it is, to stand....
This opinion should not be interpreted as an invitation by other
practitioners, nor authorization of the family courts, to intentionally evade any
aspect of the adoption laws by replicating the facts or practice of this case. We
believe we have made it clear that this case should never have proceeded as far as
it has and trust that no others will.
• Did the family court properly deny S’s CR 60.02 motion in the custody case?
We have already held that S's CR 60.02 motion in the adoption case is
untimely because of the operation of KRS 199.540(2). But KRS 199.540(2) does
not apply to custody orders. Our consideration of the family court's denial of CR
60.02 relief in the custody matter remains.
The basis for that denial was “[S's] failure to file her motion in a
reasonable time; [her] full knowledge of all facts at the time the agreed order was
entered; and clean hands doctrine.” As previously noted, we review a lower court's
denial of relief pursuant to CR 60.02 for abuse of discretion.... In the custody
case, we believe the court abused its discretion.
The family court's order acknowledged that it lacked subject matter
jurisdiction when it entered the custody order. For reasons set forth in the family
court's order denying CR 60.02 relief, we agree.
A judgment entered by a court without subject matter jurisdiction is
void ab initio.... It is “a legal nullity, and a court has no
discretion in determining whether it should be set aside.” Foremost Ins. Co. v.
Whitaker, 892 S.W.2d 607, 610 (Ky.App. 1995). In addition, since subject matter
jurisdiction concerns the very nature and origins of a court's power to act at all, it
“cannot be born of waiver, consent or estoppel[,]” Nordike v. Nordike, 231 S.W.3d
733, 738 (Ky. 2007)(internal quotation marks and citation omitted).
Because “the question of subject matter jurisdiction may be raised at
any time and is open for the consideration of the reviewing court whenever it is
raised by any party,” Gullett v. Gullett, 992 S.W.2d 866, 869 (Ky.App. 1999), S
was entitled to challenge it when she did. And, since the family court had no
discretion with regard to setting that order aside, Foremost at 610, the exercise of
any discretion declining to do so was an obvious abuse of the court's discretion.
We therefore reverse the Jefferson Family Court's order denying S's motion to set
aside the custody order.
Upon remand Though
utilization of KRS 403.270 and the rest of Chapter 403 is not mandated, it provides
the family court with the best guidance for determining appropriate custody,
visitation and support, even in this unusual, we pray unique, case. The family
court may entertain a motion to modify the original petition in this case, or one or
both of the parties may initiate a new action in which to seek these determinations.
The courts concluding words were meant to be heard:
Legal Questions versus Political Questions; Justice in the Abstract versus Justice According to Law
We pause at this juncture to highlight the common element that runs
through all of the cases from the various jurisdictions addressing the general issue
of stepparent-like, second-parent, or similar adoptions. It is the same “elephant in
the room” in this case. The function of the Judiciary is to answer the legal
question whether “stepparent-like” adoptions are permitted under Kentucky law.
Courts are constitutionally prohibited from addressing the political question, “Why
not?” Furthermore, judges sitting on those courts are prohibited from allowing
their own abstract view of the political question to affect in any degree the proper
determination of the legal question.
It is not this or any court's role to judge whether the Legislature's
prohibition of same-sex marriage, or common law marriage, or bigamous marriage,
or polygamous marriage, is morally defensible or socially enlightened. Nor is it
this or any court's role, in the absence of constitutional repugnance, to craft any
means by which the legal consequences of such a prohibition may be negated or
avoided. It is simply the law. Nor does the fact that T and S are homosexual have any bearing
whatsoever on the void nature of this joint custody order and this judgment of
adoption.The merits and defects of both order and judgment exist regardless of
the parties' relationships, genetic makeup, pre-dispositions or personal choices.
The lawyers in this case obviously desired to affect the public policies
at play in this case that, in their view, negatively impact their clients. They would
have been perfectly justified in petitioning the Legislature, or encouraging their
clients to do so, for an amendment to the adoption laws that would permit an
unmarried person to adopt a non-spouse's child without terminating the nonspouse's
parental rights. But rather than taking this proper route to change, they
sought to achieve their goal through this branch of government. Their stratagem,
so clearly contrary to statute and public policy, could only succeed in a receptive
environment. The record tells us that Zeller found such an environment.
As the family court acknowledged, “stepparent-like” adoption had
been embraced by three or four divisions of Jefferson Family Court. According to
Zeller, judicial acceptance of her efforts came with a knowing “wink-wink, nodnod,
and look around[.]”Wherever this legal fiction has been used, its supposed benefactors were misled. Its proponents simply applied the fiction to evade, for a
single segment of our society, the public policy of the People of this
Commonwealth. To do so is constitutionally impermissible, regardless of the
identity of the group.
We take issue with any legal professional, and will reverse any court,
for exempting any person or group from the uniform application of our laws
merely because of their membership in a particular subset of society. Ky. Const §
1 (“All men [and women] are equal[.]”); Ky. Const § 3 (“All men are equal and no
grant of . . . privileges shall be made to any man or set of men[.]”). In short,
however, that is exactly what occurred here.
The fact that T and S are homosexual should have had no bearing on
the lawyers' representations of their clients, nor on the family court's application of
the law, at any stage of this proceeding. Unfortunately, the parties' sexuality
preference or some other unidentified factor such as sympathy for their plight,
impaired the way the legal professionals viewed the law.
Zeller, Gatewood and Kellerman unwisely participated in an adoption
by two people who were not even living together, to say nothing of the fact that
they were not married, or even committed, to one another. Would Gatewood have
thought it prudent to permit his client to consent to this adoption if T were actually
S's former husband? Would Kellerman also have failed to question Z's adoption
by a former stepfather who had already divorced her client's mother, thereby
risking the termination of the legal relationship between Z and S? We think not. It is significant that the legal professionals were all on the same page
here. Because these proceedings were carried out in “friendly suit” manner,
without the presentation of a countervailing legal position, and without even the
objective participation of the Cabinet, the parties lost all benefit of an otherwise
adversarial system. The court alone was left to question the legality of what the
parties and their lawyers sought. To the extent the family court did challenge
Zeller's theory, that challenge was inadequate.
However, with crowded dockets and limited resources, and relying to
a large degree on the attorneys to present the law and facts in conformity with CR
11, we tend to understand how the family court let down its guard. It may not have
been until attorney Zeller thanked the “family court judges who have so graciously
given to gay couples these rights” that the judge below realized what had occurred
in her court. When asked what Kentucky adoption law said about stepparent-like
adoption, too many professionals relied on the punchline of an old and bad
attorney joke and responded, “What do you want it to say?”
The Order Overruling Appellant's Motion
to Set Aside the Judgment of Adoption was AFFIRMED, and the Order Overruling
Appellant's Motion to Set Aside Custody Judgment was REVERSED. The order
awarding permanent joint custody of Z to S and T was VACATED as void ab initio.
The case was REMANDED for further orders.
Digested by Diana L. Skaggs, Diana L. Skaggs + Associates

Here Are The Facts Of S.J.L.S.; Full Digest To Follow

As part of the life plan of two women, S gave birth to a child named “Z” by artificial insemination from a donor selected by T. Six weeks after the birth of the child in 2001 T filed a petition for permanent joint custody. S was unrepresented, signed a waiver and acknowledgement and an agreed order of permanent custody was entered.

In 2003 S and T split up and 6 months later T filed an adoption petition. On a family court case information sheet T represented she was a stepparent. Although unnecessary in a stepparent’s adoption, a Guardian ad Litem was requested and appointed and S and T entered into an adoption agreement that recited that it in no way terminated the parental rights of S. This time S was represented by counsel. The GAL and both lawyers convinced the court in this non-adversarial proceeding the "stepparent-like" adoption was permissible, based on law from other jurisdictions. Although no pre-petition involvement of the Cabinet for Families and Children was obtained, the court clerk notified the cabinet upon filing the petition. The Cabinet objected by letter and the court and counsel were aware of the objection. The letters were removed by someone from the court record although a copy of one had been scanned by a court clerk and was part of the record in the court of appeals. Neither party nor the Cabinet took an appeal from the judgment of adoption.

In July 2005 S filed a CR 60.02 motion to vacate the custody and adoption judgment. The court acknowledged it lacked subject matter jurisdiction when both judgments were entered but believed that KRS 199.540(2) is an absolute bar to an attack on a judgment of adoption more than one year after its entry. Because the adoption could not be set aside, custodial arrangements were necessary and thus the trial court denied the CR 60.02 motion.

The end result was that the adoption was not set aside and S's parental rights were not terminated. The custody issue was remanded.

A full digest of the opinion of this case will follow. Meanwhile, the decision is online here.

Pick Your Headline: "Same-Sex Adoption Case Affirmed In Ky" or "Lawyers And Family Courts In Ky Better Not Ever Again Attempt Second Parent Adoption Without Legislative Change" (UPDATED)

Today the Kentucky Court of Appeals affirmed a trial court's refusal to set aside a same-sex adoption in S.J.L.S. v. T.L.S., but it is quite clear that is not the way the court would like the headline to read. In the exceedingly well-written 61 page opinion, like any great legal thriller, you don't learn until toward the end what the real result will be. But the message is loud and clear: do NOT try to do this in another case.

A first reading of the decision has left me with some very strong opinions. Some concern the role of advocates in advancing the law. You'll see a lot about CR11 in the opinion but little to nothing about the permissible "good faith argument for the extension, modification or reversal of existing law." Granted, there were ugly assertions of misconduct by counsel cited by the court, but upon a first reading I am not convinced they really impacted the outcome. It seemed they were highlighted to discourage other lawyers from ever pursuing such a cause of action.

Another angle of interest is the entire second parent adoption dimension. While the court emphasized that the opinion and rationale would have been the same had the parents been heterosexual I am not so sure. I have long believed that the best fact scenario to take to an appellate panel on the issue of second parent adoption would be a heterosexual adoption.

Beyond these words, I really need to reflect on this case. Reading it again will be a pleasure, it is that well crafted. I may even change my mind and not stick with any original notions. My bet is we'll be talking about this case for a long time. I doubt either mom will seek discretionary review; each has too much to lose with further review.

UPDATE:
I guess I was THINKING Rule 11 as I read the opinion, but upon second reading I have to tell you I was wrong about seeing a lot of that in this opinion. Advancing the law was mentioned but summarily dismissed as being without merit on these facts. After rigid adherence to the statutes, is interesting how S's parental rights were retained by a "balancing of public policies." A digest and discussion will follow. This case is not just a same-sex case, it hits home with heterosexual implications as well.

McCary v. Mitchell, Ky COA, Guardianship Custody Between Non-parents

McCary et al. v. Mitchell, et al. –S.W.3d—(Ky.App. 2008), 2007 CA-000322-DG

The Mitchells, maternal aunt and uncle of B.E.M., petitioned the court to be appointed guardians and conservators of the estate of their niece. B.E.M.’s mother was murdered by the child’s father, and the child was currently living with her paternal aunt and uncle, the McCarys. The district court ordered that the Mitchells be appointed the co-guardians and co-conservators of the estate of the child, and that the Mitchells take physical possession of the child after the completion of the 2005-06 school year. The Circuit Court affirmed. The Court of Appeals granted discretionary review.
The Court first found that the KRS 403.270 de facto custodian provision does not apply to guardianship proceedings under KRS 387.032. Therefore, the McCarys did not have a superior right to the child. Both parties were to be given equal consideration. The Court then found that the district court did not abuse its discretion in finding that the child’s best interest was served by appointing the Mitchells as guardians. There was sufficient evidence to support the court’s finding.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Coffman v. Rankin, Ky Child Custody Modification, Standard To Be Applied; Jurisdiction

Coffman v. Rankin, --S.W.3d-- (Ky. 2008), 2007-SC-000348-DGE

The parties divorced in 2001 and were granted joint custody of their two minor children. The mother was named primary residential custodian. In 2004, the father filed a motion to modify the custody decree due to his concerns regarding the mother’s intention to move with the children and her engagement to an individual with past mental and addiction problems. During the pendency of the action, the mother was granted permission to relocate from Hardin County to Jefferson County with the children and her, now, new husband. An evidentiary hearing was held in 2006 and the Family Court named the father the primary residential custodian based on the best interests of the child standard. After the mother’s motion to alter, amend, or vacate was overruled, she appealed. The COA held that the Family Court abused its discretion and proceeded without subject matter jurisdiction, and therefore reversed the Family Court’s ruling.
The SC granted discretionary review. The SC found that the Family Court did have subject matter jurisdiction, since the Family Court determined that the moving papers were sufficient. It also found that the Family Court did not abuse its discretion, as the Family Court issued a thorough findings of fact and conclusions of law in excess of 16 pages.

Dissenting Opinion: It was an abuse of discretion in the trial court’s finding that there was substantial evidence to justify a change of custody. The evidence showed that the children are doing well with their mother. The majority of the fact finding concerned the new husband’s past instability. However, there was no evidence that the new husband had suffered any problems during his relationship with the mother or in the last five years. The trial court based its findings on speculation of what might occur in the future. Also, KRS 403.270(3) was completely ignored, as there was no evidence that the mother’s new relationship has affected her relationship with the children. More proof was needed to justify uprooting the children from their mother’s care.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

BEARDEN V. MAULDIN, CHILD CUSTODY

BEARDEN V. MAULDIN
2007-CA-001888
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: BUCKINGHAM PRESIDING; LAMBERT AND MOORE CONCUR
COUNTY: JEFFERSON

Mom appealed from TC’s order denying her motion to set aside TC's judgment awarding permanent custody of Daughter to Paternal Grandparents. Mom further appealed from TC’s order denying her motion for visitation, where TC found that it lacked jurisdiction to consider visitation.

FACTS:
Paternal Grandparents filed a petition for custody and an emergency motion for temporary custody of Daughter four days after birth of Daughter due to the abuse of alcohol by and mutual domestic violence between Mom and Dad. TC entered temporary custody order that day and referred the matter to CFC for investigation. CFC subsequently filed DNA action a few days later, and the following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. TC awarded temporary custody to Paternal Grandparents in the custody action and reaffirmed that decision in the dependency action. Mom and Dad were allowed supervised visitation and were ordered to participate in a course of rehabilitative treatment and testing.

Paternal Grandparents filed an amended petition for custody seeking permanent custody of Daughter, which was served on Mom and Dad. Neither filed a response, and Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed anything to object to the entry of the order granting permanent custody of Daughter to Paternal Grandparents. TC entered an order granting Paternal Grandparents permanent custody. Paternal Grandparents then initiated proceedings in Alabama, their home state, to formally adopt Daughter. Those proceedings were still pending when this Opinion was rendered.

Almost one year after the default hearing, Mom filed a motion to set aside the default custody decree entered against her pursuant to CR 60.02(d) and (f). In support of her motion, Mom filed affidavits signed by herself and Dad. Dad's affidavit indicated that he told Mom if she intervened in the custody case, she would suffer further bodily harm, including death. Dad also stated that he had access to the only vehicle and telephone and that he prevented Mom from using either during this period. Further, Dad explained that Paternal Grandparents colluded with him to prevent Mom from protecting herself in any way during the custody case. Mom's affidavit listed the same facts but also admitted that she and Dad were alcoholics but that she was presently clean and sober.

TC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents and had not documented collusion occurring between Dad and Paternal Grandparents to prevent her from attending or participating in the custody proceedings. TC further found that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents.

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02. TC denied Mom's motion to alter, amend or vacate, but stated no grounds for the denial, and declined to exercise jurisdiction concerning the visitation issue, finding that Kentucky was no longer the home state of the child. This appeal followed.

Analysis:
Mom argued that TC improperly denied her 60.02 motion without an evidentiary hearing. CA held that a 60.02 movant is entitled to an evidentiary hearing if she affirmatively alleges facts, which if true, justify vacating the judgment and further alleges special circumstances that justify 60.02 relief. CA found that the contents of the affidavits in support of Mom’s motion are clear examples of Mom's allegations of fraud on the proceedings and collusion on the part of Dad and Paternal Grandparents and thus are allegations of facts, which if true, would justify vacating the judgment under CR 60.02(f) and possibly (d). CA recognized that affidavits can be a useful tool in the service of judicial economy, but on such a critical matter as fraud and collusion involving the custody of a child they are simply insufficient to form the basis of a decision. CA found that TC should have held an evidentiary hearing to allow Mom to present her claims through testimony rather than basing its decision on the affidavits presented by Mom.

Mom also argued that TC improperly found that it lacked jurisdiction to modify her visitation rights. Paternal Grandparents argued that TC properly declined to exercise jurisdiction over the issue of modification of Mom’s visitation rights pursuant to KRS 403.824. CA stated that under KRS 403.824, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met, and that since Kentucky’s adoption of the UCCJEA, continuing jurisdiction trumps home state jurisdiction. In the instant case, Kentucky had original jurisdiction over custody. Despite the fact that Daughter had acquired a new home state, Kentucky is still the home state of Daughter’s mother, Mom, who is alleging that Paternal Grandparents obtained custody by fraud and then transported Daughter to their home state, which subsequently asserted jurisdiction. Accordingly, despite the Alabama court’s finding that Kentucky was no longer the home state of Daughter, Mom, a contestant, still resided in Kentucky and Kentucky was the initial state to make the custody determination. CA found that Kentucky therefore has continuing jurisdiction under the UCCJEA to determine visitation.

Vacated and remanded TC’s order denying CR 60.02 motion with instruction that TC conduct an evidentiary hearing, and reversed the portion of TC’s order indicating that it does not have exclusive and continuing jurisdiction and remand for proceedings consistent with Mom’s motion for visitation.
Digested by Michelle Eisenmenger Mapes, DIana L. Skaggs + Associates.

The Relocation Case That Wasn’t

The Kentucky Supreme Court decided Coffman v. Rankin today, a 4 – 3 decision reversing the Court of Appeals and reinstating the trial court change in the primary residence of the parties’ two children, now 13 and 10 years old.
The Opinion of the Court by Chief Justice Lambert, joined by Justices Abramson, Minton and Noble, held that a verified petition to modify custody is sufficient to confer subject matter jurisdiction on the trial court. It ruled that the Court of Appeals, in going on to address the merits of the change in primary residence, inappropriately applied a serious endangerment standard rather than the “best interest” standard. The majority opinion found that the Family Court applied the correct standard and there was no abuse of discretion.
The dissent by Justice Cunningham, joined by Justices Schroeder and Scott, agrees that the trial court had subject matter jurisdiction and agreed that the appropriate standard was “best interest” rather than serious endangerment. They dissented, however, because almost all of the fact finding had to do with mental and emotional instability of the children’s stepfather that had occurred five years in the past and which did not affect the minor children. Little of the testimony involved the children, who clearly wanted their mother to remain their primary custodial parent. The dissent passionately argued “To find that this evidence is sufficient to change custody away from a mother, who has had the children all of their lives, will set a precedent that will create justifiable apprehension for all custodial parents throughout the state and will undermine the much needed stability for children of broken homes.” A digest will follow shortly.

The court chose not to use this case as part of a trio on relocation. We have numerous posts on the other relocation cases under submission at the Kentucky Supreme Court, Pennington v. Marcum and Frances v. Frances here, here, here, etc. No decisions will be released in July so it will be at least two months before we hear where we are headed on relocation and possible revisiting of Fenwick v. Fenwick.

Atheist Father Who Objected To Son Attending Catholic High School Appeals Ruling

We briefly mentioned Andrew Wolfson's article in the Courier-Journal here. As an update here is his follow up piece reporting that Judge Timothy Feeley permitted the teenager's mother to make his school decision. An appeal to the Kentucky Court of Appeals has been filed.

Time Magazine Reports Ky Bio-Dad Decision And Putative Father's Plan To Go To U.S. Supreme Court

The story is online here. Some quotes: Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

The report continues, But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child's life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

What's next? Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California's explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. "Well, obviously I am not going to give up and say, 'Oh well I lost,'" Rhoades says. "I believe I have a fundamental right to be in my son's life." The trouble is: nature's law isn't the law of the land.

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court
and JRG, Real Party in Interest, ___ S.W.3d ___ (Ky. 2008)
2007-SC-000175-MR

JGR (James) filed a custody and support petition, alleging DNA confirmed him to be the biological father of a child who lived with his mother, JNR (Julia), who was married to JFR (Jonathan). After the family court refused to dismiss the petition, Julia and Jonathan were denied a writ of prohibition in the Court of Appeals and appealed to the Kentucky Supreme Court. The Supreme Court ruled 4 to 3 in favor of Julia and Jonathan in five separate opinions.

The opinion of the Court by Justice Minton in which Chief Justice Lambert concurred held that the family court was without subject matter jurisdiction to determine paternity claims brought by a biological father where there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth. Because a showing of irreparable injury and lack of adequate remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction, the Court of Appeals erred in denying the writ of prohibition. Although the parties debated the due process and equal protection rights of the unmarried biological father, the constitutional claim was not perfected by serving a challenge on Kentucky’s Attorney General.

Justices Cunningham and Scott concurred in the result only, and each wrote separate opinions in which the other joined. Justice Scott opined that only the parties to a marriage can challenge the presumption of legitimacy under KRS 406.011 and there is no constitutional right of a “stranger to the marriage” to assert paternity under such circumstances. Justice Cunningham wrote that this case is squarely about the legal status of marriage and about a married couple’s right to be left alone from the allegations of an interloper asserting the claim of fatherhood.

Justice Abramson dissented by an opinion in which Justice Schroder joined and wrote that the Supreme Court erred grievously in its holding. She distinguishes “marital relations,” the sexual aspects of marriage with the “marital relationship,” the broader aspect of emotional, physical, social, and moral dimensions characterized by a monogamous bond. She believed the “marital relationship between the husband and wife” referenced in KRS 406.011 can certainly be said to “cease” when the wife is having sexual intercourse with another man. While the marriage may still exist as a matter of law and sex may still occur between the spouses on occasion, the monogamous “marital relationship” ceases when the third party enters the picture. She focuses on the words actually used by the legislature as the operative concern and notes that it also makes common sense. A child born to a married woman and a lover who is not her husband is indeed born out of wedlock. The evidence which would show a cessation of the marital relations would need to be assessed on a case by case basis but would encompass the situation, as here, where the putative father has had a visitation with the child through the mother’s cooperation and has secured DNA testing establishing biological fatherhood.

Justice Abramson challenges the majority belief that its holding protects the integrity of the family. If a mother alone can harbor the secret of paternity so long as it serves her purposes, there is no societal disincentive to conceiving a child outside the bounds of marriage. Secondly, she notes that there are tens of thousands of blended families in Kentucky who cope with shared parenting. The only variable in this case is that the only child who has a parent outside the home is the younger as opposed to the older child or children. Finally, she notes the medical and psychological consequences to a child who should have a right to know his parentage.

Justice Noble dissented by separate opinion writing that the majority confused a statutory element of proof as a requirement for standing. One does not have to prove an element in order to have the right to plead it. She believes the majority jumped over the hurdles of proper pleading and procedure to the evidentiary merits of the case, noting that even on writ procedures from the Court of Appeals, the Kentucky Supreme Court is not the fact finder. She wrote that this case is one example of evolving legal questions that arise when a new type of court is instituted. Under KRS 406.021, a putative father has standing. Once a party has standing, then certain elements of proof must be established to rebut the presumption that a child born during the marriage is the child of the husband. One does not have to prove an element of a claim to have the right to plead it. She opined that James clearly has a due process right to at least be heard, because he does have standing.

Putative Father Lacks Standing To Assert Paternity Of Child Born During Marriage In Kentucky

The Kentucky Supreme Court decided J.N.R and J.S.R v. Joseph O’Reilly and J.G.R, Real Party in Interest, commonly known as the “Rhoades v. Ricketts” case today, online here), an unprecedented 4-3 decision with two concurring opinions and two dissenting opinions. 47 pages in all. The opinion of the Court by Justice Minton in which Chief Justice Lambert joined held that the paternity court lacked subject-matter jurisdiction to hear the biological father’s claim for custody and visitation because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and that term is defined by statute, when the child is born to a married woman, to paternity claims by a man other than her husband “where evidence shows that the marital relationship between the husband and wife ceased ten months prior to the birth of the child.” Since there was no allegation or proof that the marital relationship had ceased within ten months prior to the child, the Court lacked subject-matter jurisdiction. Interestingly, the Court seemed to invite constitutional challenges to the paternity statute. Although the parties to that case debated an unmarried biological father’s due process and equal protection rights, the constitutionality of the statute was not challenged nor served on Kentucky’s Attorney General. I suspect that we have not seen the end of this case.

Two concurring Justices, Scott and Cunningham, believe that the biological father’s status as a “stranger to the marriage” is the fundamental reason for the legislative language and there is no Constitutional right of a “stranger to the marriage” to assert paternity. Justice Cunningham in his separate opinion went so far as to say the “severely wounded institution of marriage in Kentucky surely protects the parties from unwanted interlopers claiming parenthood of a child conceived and born during their coverture.”

Justice Abramson wrote a brilliant opinion, but unfortunately it was a dissenting one. A full digest of the case will follow.

Picklesimer v. Mullins (Ky)

Picklesimer v. Mullins, __ S.W.3d. __ (Ky. App. 2008)
2007-CA-000086-ME and 2007-CA-000101-ME

Picklesimer and Mullins were engaged in a 5 year lesbian relationship, during which time they lived together and decided to parent a child together. The parties agreed that Picklesimer would be artificially inseminated. Their child was born in 2005, and their relationship ended in 2006. Before the parties broke up, they entered an agreed order and judgment that established Mullins as a de facto custodian of the child and provided that the parties would share joint custody. The order was entered in a neighboring county to avoid publicity in their own community. The TC entered the order without taking any evidence. No summons was issued, but neither party challenged the lack of notice. After the parties separated in February 2006 and until their relationship disintegrated even further in September 2006, the parties shared equal parenting time with the child.

Picklesimer appealed a TC judgment that awarded joint custody of her minor son to Mullins. Picklesimer argued that the TC lacked jurisdiction and venue to enter custody orders, that Mullins lacked standing, and the TC erred in holding Picklesimer waived her superior right to custody. On cross appeal, Mullins argued that the TC erred in invalidating the agreed judgment of joint custody entered by the two parties.

TC’s jurisdiction and venue to enter custody orders: CA held that Picklesimer had notice of the proceedings since she filed an entry of appearance and never challenged the agreed order establishing Mullins as a de facto custodian. CA also held that venue was waived when both parties filed pleadings with no objection to venue.

Mullins’ standing to pursue joint custody/ Picklesimer’s waiver of her superior right to cusody: A nonparent, who does not qualify as a de facto custodian, may seek custody of a child if the nonparent shows that 1) the parent is unfit by clear and convincing evidence, or 2) the parent has waived his/her superior right to custody. A finding of waiver requires a voluntary and intentional surrender or relinquishment of a known right. A court order granting a nonparent visitation does not constitute a waiver of the parent’s superior right to custody. As Picklesimer did not waive her superior right to custody of the child, Mullins had no standing to pursue custody.

TC error in invalidating the agreed judgment of joint custody: The judgment establishing Mullins as a de facto custodian was entered based on incorrect evidence. Mullins was never the primary caregiver and the primary financial provider for the child, as the statute requires. The pleadings were drafted to convince the TC that a hearing was not necessary on the matter. CA held that the pleadings and conduct constituted a fraud upon the court. The CA found that had the TC held a hearing, the TC would not have signed the order. The judgment declaring Mullins a de facto custodian is invalid.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Father Who Claims To Be Atheist Sues To Keep Son Out Of St. Xavier High School

Front page news in the Courier-Journal today, Atheist father sues to keep son out of St. Xavier High School. As Sandra Ragland represents mom, I'll stay mum on this blog.

Skinner v. Skinner, KY, Child Custody Jurisdiction

SKINNER V. SKINNER
CHILD CUSTODY JURISDICTION
2006-CA-002523
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: STUMBO PRESIDING; ACREE, GRAVES CONCUR
COUNTY: WAYNE

Dad appealed from TC’s order sustaining Mom’s motion asking TC to take jurisdiction of child custody matters stemming from a prior dissolution of marriage proceeding in Tennessee. Dad maintained that TC improperly assumed jurisdiction, improperly based its findings on facts not in the record, and erred in failing to maintain a record of its communications with the Tennessee court.

Dad and Mom were divorced in 1998 by TC in the state of Tennessee (“TN TC”). Mom received custody of the parties’ minor child, with Dad being granted visitation. In 1999, Mom and Child moved to KY and established residency. In 2003, Dad filed a motion to for Mom to show cause why she should not be held in contempt for her failure to permit Dad to exercise visitation with Child. In 2004, on the same day that Dad’s TN attorney was granted leave to withdraw in TN case, Mom filed a petition in KY TC to alter visitation schedule. Dad moved to dismiss KY motion for lack of jurisdiction which was subsequently denied for Dad’s failure to prosecute, but TN TC issued order setting a trial date for all pending issues and the order was mailed to Mom’s last known address. DRC conferred with TN TC on the jurisdictional issue. TN TC opined to DRC that jurisdiction should remain with TN TC. KY DRC found that Mom’s KY action, having been filed the same day that Dad’s TN attorney was granted leave to withdraw, represented Mom’s attempt to change jurisdictions, and that as Dad initially sought to enforce the existing TN Order in 2003, Kentucky could not exercise jurisdiction as a TN action was pending. Mom filed exceptions to KY DRC order. KY TC’s order (rendered in 2004) acknowledged that TN retained jurisdiction over a related contempt proceeding, but held that KY had jurisdiction over Child because Child resided in KY since 1999. In 2006, Dad moved KY TC to decline jurisdiction over Child and give full faith and credit to TN TC’s orders. Mom then sought an emergency order from KY TC to suspend visitation based on Child’s allegation that Dad tried to touch her inappropriately. KY TC then rendered an order declining jurisdiction as to the modification of visitation and giving full faith and credit to TN child custody orders, which Mom moved to alter, amend or vacate. KY TC then ruled that the UCCJA and KRS Chapter 403 operated to vest KY with jurisdiction over child custody and visitation matters, finding that KY was Child’s home state and that it was in Child’s best interest for KY to exercise jurisdiction. KY TC also determined that Dad had sexually abused the child, stating that “[t]his court cannot in good conscience place a child in the custody of a person who has been abusive to the same child. Therefore without question this court should assume jurisdiction of the child under this section.”

Dad moved for KY TC to disclose its record of communications with TN TC. KY TC overruled Dad’s motion for disclosures due to the fact that no record of communication between KY TC and TN TC existed. Dad then filed this appeal.

Dad contended that KRS 403.420 (now supplanted by KRS 403.822) allows for jurisdiction to be determined based either upon whether KY is the child’s home state, or whether another state has continued to maintain jurisdiction in the matter, arguing that TN continued to maintain jurisdiction over the action, and that KY TC so acknowledged in 2006, when it stated that TN would have jurisdiction of modification and child custody orders in the case. Dad argued that by reversing this order with the entry of a new order, KY TC placed itself in the position of a review court by attempting to reassert jurisdiction over an issue which it had previously ruled that it did not maintain. CA found no error. Because Mom’s petition to alter visitation was filed before the enactment of KRS 403.822 and KRS 403.826, the law in effect at the time of filing, KRS 403.420 is controlling. KY had jurisdiction to adjudicate Mom’s petition since Child resided with Mom in KY for at least six months prior to the filing of the petition, which is one of the scenarios allowing KY to have jurisdiction per KRS 403.420.

Dad also argued that KY TC erred when it rendered 2006 order based on facts not found in the record, in which KY TC acknowledged relying upon written letters from counselors addressing the child abuse allegation, and that KY TC improperly failed to maintain a record of its communication with TN TC as required by statute, thus preventing him from defending, explaining or rebutting any information contained therein. CA agreed. Given the parties’ right to have the matter adjudicated from the evidence of record, as well as their statutory entitlement to examine a record of KY TC’s communication with TN TC, CA found that KY TC clearly erred by impairing or eliminating Dad’s ability to examine and rebut the evidence relied upon. CA affirmed KY TC’s order as to that portion reflecting KY TC assuming jurisdiction based on its finding that KY is Child’s home state, but reversed and remanded as to that portion of the Order addressing matters not contained in the circuit court record.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Hoppe v. Tallent, KY, Child Visitation, Allegations of Child Sexual Abuse

Hoppe v. Tallent, __ S.W.3d __ (Ky. App. 2008), 2007-CA-000104-MR

Father appealed the TC’s denial of his motion for immediate reinstatement of visitation with his daughter, K.H.
During the parties’ divorce settlement negotiations in 1997, the mother alleged that the father sexually abused K.H. The record is silent as to the nature of the allegations and whether the allegations were substantiated. The separation agreement granted joint custody to the parties, with the mother being appointed primary residential custodian. The father then had visitation with K.H. every other weekend and two hours on every other Wednesday until 2004.
Without the father’s knowledge, the mother had K.H. see therapists, the Sensings, in 1998. The Sensings noted that K.H. may have been traumatized by a male. They did not observe any obvious signs of sexual abuse, but could not rule out the possibility. Their recommendation was for K.H. to continue visitation with her father, but suggested that a female relative be present and that the visits increase as K.H. grew more comfortable with her father.
In 2003 the mother alleged that K.H. became anxious before visits with her father. Her pediatrician found no physical explanation for the anxiety. In 2004, Sally Sensing met with K.H. again. K.H., eight years old at this time, told the therapist that her father made her uncomfortable and she became physically ill before each visit. K.H. also alleged that her father embarrassed her, slept in bed with her, and took pictures of her naked in the shower (court noted that child was standing in the shower behind the curtain, modeling a shower cap, with a wide smile on her face), washed her inappropriately during baths, would drink and drive with her in the car, and left her in the car alone for 25 minutes while he shopped for a television. Sensing recommended that the visitation continue, but with professional supervision until the causes of K.H.’s anxiety could be fully assessed. Sensing did not report any abuse to authorities.
That same month, the mother motioned for the court to suspend or alter the father’s visitation. The father objected, and the mother stopped the visitation on her own. As a result, the father asked that the mother he held in contempt of court.
The DRC held a hearing in February 2004. After hearing testimony from the Sensings, Dr. Fane, a clinical psychologist who evaluated the father, both parties, maternal and paternal grandmothers, K.H.’s teacher, and the father’s ex-wife, the DRC recommended that visitation be suspended until the mother, father, and K.H. could be evaluated by one professional.
The evaluation by Feinberg & Associates revealed assets and deficits in the parenting of both parties. No allegations of sexual abuse were revealed, and Feinberg recommended that the visitation resume. As a result the TC ordered both parents and K.H. to begin counseling with Ruth Sutton, another therapist. When K.H. learned that she was to see Sutton to facilitate visitation with her father she became upset and claimed that her father had sexually abused her. Sutton reported the allegations of abuse to authorities.
K.H. told the CPS worker, Guffy, of the incidents of sexual abuse. The mother confirmed to Guffy that K.H. had told her of the incidents. The maternal grandparents also confirmed that K.H. had told them of incidents of abuse by her father. Since the father was living in Tennessee and that is where the abuse allegedly took place, Guffy filed a report with the police in TN.
In December of 2004, K.H. underwent a medical exam, however during the exam neither K.H. or her mother alleged that any inappropriate physical contact had occurred. The results of the exam revealed no abnormalities, but could not rule out the possibility of abuse.
Sutton continued to see K.H. until January 2006. The father had not heard from Sutton by December 2004, so he moved the court to reinstate visitation. The court set a hearing for January 2005, and planned on interviewing the child. In January 2005, the TN authorities wrote the TC a letter informing the judge of their open investigation and stated that if the father was granted access to the child, the authorities would take the child into state custody. The TC cancelled the interview of the child as to not become a witness in the TN criminal investigation. The record is silent as to whether criminal charges were ever filed or pursued against the father in KY or TN.
In December 2006, a hearing was held at which the father testified and denied the abuse allegations. Sutton also testified. She stated that she believed K.H. and adamantly opposed any contact between K.H. and her father. The TC concluded that it was not in K.H.’s best interests to see her father, since it would endanger her physical, mental, and emotional health.
COA affirmed. TC’s findings were supported by substantial evidence and did not abuse its discretion. However, COA noted that six mental health professionals reviewed the case, and only one of them, Sutton, testified at the hearing. Sutton, who stumbled on cross-examination regarding her own qualifications, was the only one of the six that thought visitation should be stopped. COA also noted that its opinion does not prohibit the father from pursuing future visitation with his daughter.

Graves, Senior Judge, Concurring Opinion: Judge Graves would have preferred if the TC had interviewed the child.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Untangling the Knots of Child Custody Relocation Litigation

By Michelle Eisenmenger Mapes, Published in Louisville Bar Briefs, March 2008, Volume 08, No. 3

Your client asks you, “What does it mean to be a primary residential custodian? What effect does it have? After our divorce is final, can my spouse move and take my children away?”

Good questions. Unfortunately, the family law attorney has been unable, in recent years, to give a satisfactory answer, as the law on parental relocation in Kentucky seems to be forever in a state of flux. However, the odds of having concrete answers to those questions by the end of the year have improved on both the legislative and judiciary front, for legislation has been introduced to Kentucky’s House of Representatives that would provide family courts with much-needed guidance to resolve parental relocation disputes; and the Kentucky Supreme Court recently accepted discretionary review of three parental relocation cases: Pennington v. Marcum, 2006 WL 2194903 (Ky. App. 2006); Frances v. Frances, 2006 WL 3759659 (Ky. App. 2006); and Rankin v. Coffman, 2007 WL 1229022 (Ky. App. 2007).

Within four years of separation and divorce, about one fourth of mothers with custody move to a new location. Whether caused by a high divorce rate, remarriages, shifting job market, an increase of joint custody arrangements or simply the mobility of our society, more and more cases are presented to courts regarding relocation of children. It is probable that the number of cases litigated on this issue would decrease if there was clear statutory or case law on the subject, so that the family law attorney can properly advise her client. Relocation disputes pose great dilemmas for family courts. In a case where both parties are acting in good faith, the court must balance the relocating parent’s understandable desire of seeking a better life by moving away with her child against the non-relocating parent’s understandable desire to maintain frequent and continuing contact with his minor child.

Most state legislatures have addressed the issue, but ours has not. In the absence of legislation requiring notice and determining the factors to be considered when a parent desires to relocate a child, courts are struggling. In 2006, in Robinson v. Robinson, the Kentucky Court of Appeals noted that the arrival of the 21st century brought “an accelerated evolution” in child custody relocation litigation. The court then went on to lament the absence of legislation addressing the issue: “Unfortunately, despite Kentucky’s recent legislative efforts, Chapter 403 of the Kentucky Revised Statutes fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce… [U]ntil our legislature aligns with the majority of states [with relocation statutes], we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.”

In 1998, in recognition of the issue and dilemmas faced by the courts, the General Assembly passed a bill establishing a task force to study custody and visitation in Kentucky and to submit findings to the Legislative Research Commission. That report was submitted January 6, 2000 and included recommendations regarding the relocation of children as well as a bill draft. Sadly, no legislation regarding child relocation was passed.
In 2008, the relocation issue may finally be addressed by our statutes. House Bill 383 has been introduced this session in the Kentucky Legislature and was referred to the House Judiciary Committee. House Bill 383 would add a new section to KRS Chapter 403 that would provide a framework to family courts for proper adjudication of parental relocation disputes. A parent who provides the principal residence for a child will be required to provide notice of his or her proposed relocation and a proposed revised parenting time schedule to any other person with custody or visitation rights. Furthermore, if the parent who does not provide the child’s principal residence intends to move, he or she will also be required to notify the parent who provides the child’s principal residence of his or her intent to relocate as well as a proposed revised parenting time schedule. In both instances, notice must be provided no less than sixty days prior to the planned relocation, unless the parent does not become aware of the need for the move during that time frame, in which case he or she will have ten days from the date the information was received. The non-relocating parent will have thirty days after receiving the notice to object to the move, or the move will be permitted. Failure to provide notice can be considered by the court in its determinations regarding relocation or change of custody or visitation, as well as a basis for ordering the return of the child, an award of attorney’s fees to the non-relocating parent, or a finding of contempt against the relocating parent. The court may grant temporary orders allowing or disallowing the relocation. The court is to determine whether the relocation of the child should take place in accordance with the best interests of the child. The court would be prohibited from considering the relocating parent’s intention that he or she will not relocate if the relocation is denied. Lastly, the relocating parent will have the burden of proof that the proposed relocation is made in good faith and in the best interests of the child. The court may sanction either party if it finds that the party’s proposal or objection was made to harass the other party or delay the proceedings or was unsupported by the law or the evidence.

Should this legislation not pass, though that would truly be to the detriment of the courts, there is still hope for clarification of relocation law in the guise of the above-mentioned Kentucky Supreme Court cases. Our last Kentucky Supreme Court case on the issue, Fenwick v. Fenwick, left many Kentucky family law attorneys shaking their heads, as the Court declared that “a custodial parent’s decision to relocate with the children is presumptively permissible, and a custodial parent may relocate with the children without prior approval or modification of the joint custody award.” The Court further declared that “a non-primary residential custodian parent who objects to the relocation can only prevent the relocation by being named the sole or primary residential custodian, and to accomplish this designation would require a modification of the prior custody award.” At the time, this meant that he or she must show that “the child’s present environment seriously endangers his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages.” The custodial modification statutes have since been amended, but the Court of Appeals stated in Robinson that “The Supreme Court’s holding in Fenwick remains sound law under KRS 403.340(2) where the modification is sought within two (2) years of the original award of permanent custody.”

In Fenwick, the Court provided that it was following the trend of allowing the residential parent to move away with the child, if the move is made in good faith and a satisfactory revised parenting schedule can be achieved, based on “a prioritizing of the ‘new family unit’ constituted by the post-divorce relationship between the primary care-taker parent and the child.” Since that time, new evidence has been obtained to suggest that this is not the right approach. A new study suggests that, as compared with divorced families in which neither parent moved, students from families in which one parent moved had weaker relationships with their parents, as a whole, and fared worse overall as adults than their counterparts. While this should not suggest that relocation is not in a child’s best interests in every case, it will hopefully influence the Kentucky Supreme Court’s upcoming relocation decisions so that there is no longer a preference for the primary residential parent to be able to move with the child.

1. Sanford L. Braver et al., Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations, 17 J. Family Psychology 206, 206 (2003).
2. 211 S.W.3d 63, 67-68 (Ky. App. 2006).
3. 114 S.W.3d 767, 785 (Ky. 2003).
4. Id. at 786.
5. Id.
6. Robinson, 211 S.W.3d at 71.
7. Fenwick, 114 S.W.3d at 789.
8. Braver, supra at 214.

Michelle Eisenmenger Mapes is Chair of the Louisville Bar Association Family Law Section and is an associate with Diana L. Skaggs + Associates.

Baker v. Combs, Child Custody, De Facto Custodian

BAKER V. COMBS
CUSTODY: DE FACTO CUSTODIAN
2007-CA-001013
PUBLISHED: VACATING AND REMANDING
PANEL: KELLER, PRESIDING; THOMPSON AND WINE CONCUR
COUNTY: KNOX
DATE RENDERED: 02/29/2008

Mother appealed from TC’s order denying her motion for custody of her natural child and awarding continued permanent custody to Paternal Grandmother and Step-Grandfather (“Paternal Grandparents”). Mother and Father were never married, and Father never participated in the action or otherwise sought custody of Child. Mother is now married and has another child.

Child was first removed from Mother and placed in the temporary custody of CFC in January 2004 by Whitley District Court (“Whitley DC”) on the basis of Mother’s drug use and the fact that she left Child with Paternal Grandparents for the preceding two months; CFC placed Child with Paternal Grandparents. After adjudication hearing but before disposition hearing, Whitley DC transferred the case to the Laurel District Court (“Laurel DC”). Laurel DC, after permanency hearing, subsequently ordered that the permanency plan was placement with a permanent custodian pursuant to CFC’s recommendation and named Paternal Grandparents as the permanent custodians. Laurel DC entered a permanent custody order the same day, presumably naming Paternal Grandparents as Child’s permanent custodians, although the order portion of the preprinted AOC-DNA-9 form was not completed.

In the Findings of Fact portion of the form, Laurel DC indicated that it considered factors relating to a prior independent finding that a de facto custodian existed. However, CA found that the record did not contain any document reflecting a prior independent finding that a de facto custodian situation existed in this case.

Eight months later, Maternal Grandparents and Mother filed a Verified Petition for Custody in the Knox Family Court (“Knox FC”), as this was the home county of Paternal Grandparents and Child, requesting custody to Maternal Grandparents or to Mother. Knox FC permitted Mother supervised visitation with Child and ordered that she submit to random drug tests, each of which revealed a negative result. A year and a half later, Mother moved Knox FC for custody of Child, stating that she had complied with the court’s order that she rehabilitate herself, that she was married, and that she was leading a stable life. After hearing in which Mother’s witnesses testified that she had overcome her past problems with drug abuse, that she was currently a different person, and that she was capable of raising Child, and testimony regarding Mother’s past drug use and her past actions in leaving Child with Paternal Grandparents for extended periods of time, Knox FC denied Mother’s motion on the record, noting that Child had been in Paternal Grandparents’ home for more than 3 years and that the benefits of changing custody would not outweigh the harm in doing so. Knox FC entered an order to this effect, finding that it would not be in Child’s best interest to remove him from the Paternal Grandparents’ home and awarding Mother standard, unsupervised visitation.

Mother argued to CA that Knox FC erred in awarding custody to Paternal Grandparents, because they were not de facto custodians and she was not unfit. Paternal Grandparents asserted that Laurel DC decided the issue of de facto custodians, so that any further adjudication on this issue would be barred by res judicata, and that they are de facto custodians.

CA noted that a de facto custodian is defined in KRS 403.270(1)(a) as: :[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services.” CA stated that once it determines that such a person is a de facto custodian, TC shall give the person the same standing in custody matters that is given to each parent under this section, and determine custody in accordance with the best interests of the child.

CA found that there was no prior finding that Paternal Grandparents were de facto custodians, nor were there any findings that Paternal Grandparents were the primary caregivers and financial supporters of Child for the required statutory period, despite the fact that the form AOC-DNA-9 had some boxes checked in this regard. Therefore, before Knox FC may determine custody as between Mother and Paternal Grandparents using a best interests standard, CA held it must first independently decide that Paternal Grandparents are de facto custodians. As such a finding had never been made, CA vacated Knox FC’s order and remanded for a determination of whether Paternal Grandparents meet the requirements to be de facto custodians.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Parents Have Constitutional Right to Cross-Examine Guardian Ad Litem

The Oklahoma Family Law Blog reports Parents Have Constitutional Right to Cross-Examine Guardian Ad Litem and discusses a recent Oklahoma Supreme Court decision. Makes sense. Of course, there is still the unsettled issue in Kentucky of the court's authority to appoint a guardian ad litem in child custody cases.

Relocation Act, Ky (Post Updated)

HB383 was filed today with posting waived. It should be online tomorrow and we'll link to it when available. It will be heard in the house judiciary committee in Frankfort on Wednesday, January 30, 2008. It mirrors with few exceptions the AAML Model Relocation Act, available here.
Update: HB383 is online here.
UPDATE: Still in house judiciary committee 3/24/08

Simcox v. Simcox (6th Circuit) Hague Abduction, Grave Risk Of Harm

Digest from the 6th Circuit Blog: Simcox v. Simcox, Northern District of Ohio at Cleveland
BOGGS, Chief Judge. Claire Simcox appeals from the decision of the district court ordering her to return to Mexico with two of the four children currently residing with her in Ohio, which return the district court found was required under the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Because of evidence of serious abuse to both Mrs. Simcox and the children at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” designed to ameliorate the risk of harm to them upon their return to Mexico. Although we agree with much of the district court’s legal analysis of the Hague Convention, its ordered undertakings are problematic on the facts of this case, particularly its command that Mrs. Simcox herself return to Mexico. We therefore REVERSE and REMAND to allow the court to reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.
Jeffery Morley at International Family Law calls this case a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition.

Lane v. Caudill-Lane (KY) Custody, Supervised Visitation, and Attorney Fees

UPDATE: We were late getting this digest posted. The Kentucky Supreme Court, however, denied discretionary review and ordered that the Court of Appeals decision not be published.
Lane v. Caudill-Lane, 2007 WL 2459269

Dad appealed TC order awarding sole custody to Mom and requiring Dad’s visits to be supervised. Additionally, Dad appealed TC’s order awarding Mom attorney’s fees.
CA upheld the award of custody and attorney’s fees but overturned the supervised visitation.
CA opined, on the issue of custody, that there was sufficient evidence presented for the trial court to award sole custody. CA went on to state that an award of joint custody presumes that the parties can rise above their petty issues and do what is in the best interest of the child. A TC should not assume that because parties are antagonistic during a divorce that they will not be able to rise above it in the future. However, in the instant case, the CA reasoned that it did not appear from the record that the parties possessed the necessary emotional maturity to ensure joint custody would be in the child’s best interest.
Regarding the issue of visitation, CA held that there was not substantial evidence to warrant limiting Dad’s visitation and TC used the wrong standard in making its decision. The appropriate standard for restricting visitation is whether the visitation would “seriously endanger the child”. There was testimony presented that, among other things, Dad had called a phone sex line, that he had visited pornography websites, and that he had watched pornographic movies. However, none of this occurred in the presence of the child. There was no evidence presented that such activity would harm the child. CA stated that there may be situations in which this type of behavior would endanger a child but there was no evidence presented that Dad’s behavior would “seriously endanger the child”.
On the issue of attorney’s fees, CA held that the decision to award attorney’s fees is completely in the discretion of the TC. The only requirement is that the court consider the financial resources of the parties.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Solving Custody Disputes Outside The Legal Arena

From Rachel Levy's report in Expatica, some quotes:

Three years ago, Dutch national Hans's life was one of turmoil as he, his children and ex-wife living in Canada were entangled in a messy child custody wrangle.

Following a tough international legal battle, he had won custody over his children and brought them back to the Netherlands.

There he discovered they resented him for fighting their mother. Bringing them up alone was another factor he found himself unable to cope with.

Communication had all but broken down. But then he found a solution - mediation.

A conference of 50 professionals in Apeldoorn is now discussing this new approach - mediation instead of litigation - as a way of resolving serious cases like that faced by Hans.

"After beating my ex-wife in court in the 1980 Hague Convention procedures that helped me return the children to the Netherlands, I discovered I had won a legal battle but lost my family," Hans told Deutsche Presse-Agentur dpa.

"Communication with my ex-wife had reached an absolute low following the legal proceedings. The children resented me for taking them out of their environment just when they finally felt settled in Canada. They also had a difficult time living without their mother."

Their mother, working part-time, had always been the children's primary caregiver. Now, Hans had to replace her while working full-time. It proved impossible.

Mediation resolved the problem.

"We negotiated a new settlement for more than eight months and drafted a parenting plan for custody and visitation. The two youngest children returned to their mother in Canada. Our eldest son stayed with me," he said.

His story marks a change in the way professionals today deal with the 1980 Hague Convention on Child Abduction.

This agreement helps prevent abductions, but in the process throws parents into new legal proceedings. This does not contribute long- term parental cooperation.

"Particularly common law countries are known for creating maximum adversity between divorcing parents," says Denise Carter, director of Reunite.

Reunite is a British non-governmental organisation that helps parents who deal with international abduction, travel or relocation.

Reunite was also present at the Apeldoorn conference, organised by the independent non-governmental Centre for International Child Abduction (IKO).

Contrary to many countries nowadays, the Dutch do not automatically offer mediation in Hague Convention proceedings.

"This is surprising, considering the strong Dutch mediation tradition," says Eberhard Carl, a German liaison judge who deals with international legal proceedings and mediators.

"I always tell parents any mediated settlement will make them happier than a court ruling. With mediation people regain control over their lives," he added.

International mediation works with two mediators: one for each of the parent's gender and culture.

German attorney and mediator Christoph Paul says: "It is crucial that both parents feel recognised during mediation. And they need recognise their children's binational identity."

Judge Carl notes that in western Germany, "mothers looked after young children themselves. French mothers send their babies to daycare. So you often see a French father claiming his German wife "is isolating" their 2-year-old daughter by keeping her at home.

"Vice-versa, German mothers don't understand why a French father involves his parents so much in family issues," he added.

Paul notes the cultural aspects involved in such cases: "Family members play different roles in different cultures. That is why cross-cultural mediation requires mediators from both cultures."

Whether mediation will be integrated in all 1980 Hague Convention proceedings, remains uncertain.

"Mediation can only be successful if both parties have an open mind and are willing to consider different, original, solutions," Paul asserts.

"A pragmatic mind-set is key to conflict-resolution. It is however important to remember that pragmatism is primarily a feature of north-west European culture," he added.

London v. Collins (KY) Modification Of Child Custody

London v. Collins, ___S.W.3d___(Ky. App. 2007)

Child resided primarily with Mom until she was removed in a dependency action. At the temporary removal hearing Dad agreed that it would be best that the child temporarily reside with a member of Mom’s family. Shortly thereafter Mom died. At what was supposed to be a pre-trial conference a social worker incorrectly informed the TC that Dad had agreed that permanent custody should be awarded to the temporary custodian (custodian). Dad was not represented by counsel, his custodial rights were not explained to him, and the TC did not question him about his wishes regarding custody. Approximately a year later dad filed a petition for custody. The TC held that the custodian was a de facto custodian, that she had equal standing with Dad, and that Dad had failed to meet the statutory requirements to modify custody. The trial court also held that because Dad did not object when the permanency order was entered he waived his custody.

CA held that while Dad was present when custody was awarded to the custodian it was likely he did not understand what was occurring. The CA opined that while a parent can waive his parental rights that waiver should not occur by accident because a party does not understand the proceedings. Dad’s silence at the pre-trial conference did not constitute a waiver of his parental rights. Additionally, the CA held that since no evidence was taken at the hearing on Dad’s petition for custody there could be no finding that the custodian was a de facto custodian. Regarding the permanency order, the CA held that a permanency order in a dependency action may qualify as a custody decree. However, to be considered a valid custody decree it must be based on the standards set forth in KRS 403.279(2). The TC took no evidence upon which it could have found that the custody placement was in the child’s best interest and therefore did not meet the elements of KRS 403.279(2). Because the order in the dependency action was not a custody decree, as envisioned by KRS Chapter 403, it was not necessary that the requirements of KRS 403.340(2) be met in order to modify custody.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Child Custody Evaluation Discussion Continues

An interesting comment was posted by John H. Helmers, Jr. in response to the post Evaluators in Child-Custody Cases Scrutinized:

Thanks for this important link. I think that it is important for us all to rethink the way that custody evaluations are used. While the field of psychology may yield some information regarding a mental health diagnosis, and perhaps parenting ability, it is not a substitute for the Court's decision based on the legal standard of best interests. Additionally, the evaluators are not trained in the rules of evidence or civil procedure which provide necessary and important safeguards in the process.

Pursley v. Pursley (KY) Custody Modification; Exceptions to Commissioner's Report

Pursley v. Pursley, —S.W.3d—, 2007 WL 4126464 (Ky. App. 2007).

Dad appealed Family Court’s order modifying joint custody of Daughter to sole custody with Mom, and restricting Dad’s visitation to weekly supervised visitation. Dad alleged that Circuit Court erred by treating the Exceptions he filed as a Motion to Alter, Amend or Vacate and by transferring the case to Family Court.

When Daughter was ten, Mom and Dad divorced and agreed upon joint custody with equal time sharing of Daughter. Two years later, Mom alleged that Dad had engage in inappropriate sexual relations with Daughter and moved for sole custody. The matter was heard by a Domestic Relations Commissioner (“DRC”), who recommended sole custody to Mom with weekly supervised visitation by Dad. Dad timely filed Exceptions to the DRC’s recommendations. Circuit Court entered an Order that it would treat the Exceptions as a Motion to Alter, Amend or Vacate pursuant to CR 59.05 DRC’s recommendation and transfer the case to Family Court. DRC had been elected as Family Court Judge, and in that capacity, he subsequently denied the Motion to Alter, Amend or Vacate. Dad appealed.

CA agreed with Dad. Regarding the Motion to Alter, Amend or Vacate, CA noted that a CR 59.05 motion may only be utilized to seek reconsideration of a “final judgment.” The recommended order of a DRC is not a final judgment, but, rather, a recommendation utilized by the circuit court in reaching a final decision, thus the Motion to Alter, Amend or Vacate was not available at that stage of the proceedings. Considering the procedural posture of this case, CA believed the circuit court should have simply reviewed the exceptions, conducted a hearing, and entered a final judgment adjudicating the child custody issue.

As to Dad’s contention that the case should not have been transferred to Family Court, CA noted that while the family court was vested with jurisdiction over domestic issues by Ky. Const., § 112(6) and KRS 23A.100, such jurisdiction was not intended to be exclusive. Rather, the circuit court may, in some circumstances, retain jurisdiction to rule on domestic issues already before it, such as child custody. CA found that this case presented a unique circumstance where the circuit court should have retained jurisdiction and not referred it to Family Court since DRC conducted the proceedings, including an evidentiary hearing pursuant to CR 53.

Mom argued that Dad did not preserve issues for appeal, but CA stated that the gravity of errors claimed was one of substantial proportions, and pursuant to CR 61.02 this error may be considered by CA and the appropriate relief may be granted upon a determination that manifest injustice resulted from the error. CA noted that such an injustice had occurred, because “in a child custody proceeding, there can be no greater injustice to a party than a court failing to comply with applicable statutes and civil rules.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Evaluators in Child-Custody Cases Scrutinized

A National Public Radio program by Alix Spiegel, All Things Considered, November 21, 2007 is online. From the NPR site:

Psychologists and other mental health professionals are increasingly playing a role in child custody disputes.

Using a battery of psychological tests and expert judgment, psychologists make recommendations about which parent should have custody.

Those decisions are accepted by judges more than 90 percent of the time, but critics say the tests are flawed and the decisions are often more personal than professional.

One To Be Published Family Law Case Today (KY)

The Kentucky Court of Appeals directed one family law opinion today to be published, Pursley v. Pursley, out of Marshall County. Digest to follow soon, but the commissioner recommended a change of custody to mom based apparently on allegations of sexual abuse. Then the commissioner who heard the case was elected to the newly created family court in that county. The court of appeals held that a hearing under CR53.06(2) should have been held following the commissioner's recommendation in circuit court.

10 Myths About Custody And Domestic Violence And How To Counter Them

From the American Bar Association, Lawyers who represent victims of domestic violence in custody matters often encounter these common myths. This one-page tip sheet provides facts and recent statistics for use in litigation.Download custody_myths.pdf

.

National Center for Missing & Exploited Children Announces Creation of an Attorney Manual for Litigating Hague Convention Cases

The National Center for Missing and Exploited Children announces:

The International Missing Children’s Division of the National Center for Missing & Exploited Children is very pleased to announce the creation of a practitioner’s guide to litigating Hague Convention cases. The manual, “Litigating International Child Abduction Cases Under the Hague Convention,” was prepared by the law firm of Kilpatrick Stockton LLP and is a valuable resource for all attorneys litigating Hague Convention cases in U.S. federal or state courts. The manual provides guidelines and relevant case law relating to litigating a Hague Convention case for the return of or access to a child.

The manual is online.

Discretionary Review Granted By Kentucky Supreme Court In Another Relocation Case; It Makes Three Move Away Cases Pending

When we link to a case (usually by simply highlighting the case in red, although that may change soon to make it more obvious) if the status of the case has changed, the link will be to the newest online version. That's how we discovered discretionary review was granted August !5, 2007 in Rankin v. Coffman, digested here. Unless the parties have the same last name or the case involves initials or the case name rings a bell, it is difficult to quickly note of the grants of discretionary review which involve family law. While the case indicates it is about jurisdiction, it really is about relocation of a child. The child was moved from Hardin County to Louisville when the relocation was granted and then forced by the court to return to Hardin County. We hope this case gets expedited and heard with Frances v. Frances, digested here and Pennington v. Marcum, digested here. Post Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003), a real mistake if there ever was one, relocation law has been a nightmare, evidenced by the large number of appeals on this issue. What could be so difficult about articulating a standard that if a parent wants to move a child, he/she must give a certain amount of notice and that the standard to be applied will be the best interests of the child? Um, well, our statutes have caused havoc.
In Robinson v. Robinson, 211 S.W.3d 63,68 (Ky. App. 2006) the court noted:

Child custody relocation litigation is not a new phenomenon in Kentucky. See, e.g., Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549 (1943)( “[S]ole question presented ... is whether the chancellor erred in modifying the judgment so as to permit [the custodial parent] to move to Pennsylvania and take the children with her.”). The arrival of the 21st century, however, heralded an accelerated evolution in this area of the law. This is true nationally as well as in Kentucky where our courts continue to address increasing numbers of such cases. Unfortunately, despite Kentucky's recent legislative efforts, Chapter 403 of the Kentucky Revised Statutes (Dissolution of Marriage Child Custody) fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce.
The vast majority of state legislatures has passed a wide variety of laws directly addressing the relocation issue; nearly half require a relocating custodial parent to give advance notice of the move to the other parent, the court, or both. Kentucky is among the minority of states that have no specific statute. Therefore, until our legislature aligns with the majority of states, we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.
KRS 403.340(2) states:

No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:

(a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed the child with a de facto custodian.

KRS 403.340(2). The companion statute, KRS 403.350, states, in pertinent part:
A party seeking ... modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested ... modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits.... The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.

[1] Taken together, these statutes establish certain clear prerequisites to the modification of a prior custody decree where the modification is sought earlier than two years after its entry. Specifically, the motion to modify “must be accompanied by at least two affidavits. [Citation omitted]. If the applicable requirement is not met, the circuit court is without authority to entertain the motion.” Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999). The filing of affidavits, therefore, is a jurisdictional requirement. Crouch v. Crouch, 201 S.W.3d 463, 465 (Ky.2006)(“[T]rial court had no jurisdiction to modify the [permanent custody] order unless a motion to modify, along with a supporting affidavit, was filed in the case.”).

The court also foot-noted the following:

FN4. Linda D. Elrod, Feature, States Differ on Relocation, 28 Fam. Advoc. 8, 8 (Spring 2006)(“Lawyers and judges have noticed the increase in the number of custody disputes in which relocation is an issue. The reasons are many: the steady high-divorce rate; the number of joint-custody and shared-residency arrangements; the shifting job market; remarriages; and the mobility of today's society.”).

FN5. Despite the Supreme Court's comment in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003) that “the relocation issue, at least in the context of sole custody, has been addressed and settled in Kentucky for more than a decade,” Id. at 784, Kentucky law in this area continues to evolve at a fast pace. Since 2000, the Kentucky appellate courts have addressed relocation/custody issues in some form in the following cases: Crouch v. Crouch, 201 S.W.3d 463 (Ky.2006); Brockman v. Craig, 205 S.W.3d 2444 (Ky.App.2006), mot. for disc. rev. filed, (Ky. Aug. 15, 2006) (No. 2006-SC-587-D); Bowman v. Bowman, --- S.W.3d ----, 2006 WL 658938 (Ky.App.2006)(Opinion Final, May 5, 2006); Allen v. Devine, 178 S.W.3d 517 (Ky.App.2005); Cox v. Cox, 170 S.W.3d 389 (Ky.2005); Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004); Fenwick v. Fenwick, 114 S.W.3d 767, 779 (Ky.2003); Scheer v. Zeigler, 21 S.W.3d 807 (Ky.App.2000). We could add to that list a fair number of unpublished opinions.

FN6. In 2001, child custody litigation in Kentucky was significantly affected when the state legislature amended KRS 403.340. The effect of the amendment was to soften custody modification requirements when a motion for modification is filed more than two years after the decree is entered. Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004). For modification within two (2) years of the award of permanent custody, the standard remains as strict now as prior to the amendment.

FN7. The following states require 30 days' notice prior to relocation: Florida (Fla. Stat. § 61.13001(3)(2006)), Georgia (Ga.Code Ann. § 19-9-1 (2006)), Kansas (Kan. Stat. Ann. § 60-1620 (2006)), Maine (Me.Rev.Stat.Ann. tit.19-A, §§ 1653(14) & 1657 (2006)), Montana (Mont.Code Ann. § 40-4-217 (2006)), New Mexico (N.M. Stat. § 40-4-9.1 (2006)), and Virginia (Va.Code Ann. § 20-124.5 (2006)). These states require 45 days' notice: Alabama (Ala.Code § 30-3-163 to 167 (2006)), California (Cal. Fam.Code § 3024 (2006)) and Maryland (Md.Code Ann., Fam. Law § 9-106 (2006)). States requiring 60 days' notice are: Arizona (Ariz.Rev.Stat. § 25-408 (2006)), Louisiana (La.Rev.Stat. Ann. § 9:355.4 (2006)), Missouri (Mo.Rev.Stat. § 452.377 (2006)), New Hampshire (N.H.Rev.Stat. Ann. § 458:23-a (2006)), Tennessee (Tenn.Code Ann. § 36-6-108 (2006)), Utah (Utah Code Ann. § 30-3-37 (2006)), Washington (Wash. Rev.Code §§ 26.09.405, et seq. (2006)), West Virginia (W.Va.Code § 48-9-403 (2006)) and Wisconsin (Wis. Stat. § 767.481 (2006)). The 2006 session of the Indiana legislature recently enacted a 90-day notice requirement (Ind.Code Ann. § 31-17-2.2-3 (2006)). “Reasonable” notice is required in Colorado (Colo.Rev.Stat. Ann. § 14-10-129 (2006)) and Oregon (Or.Rev.Stat. Ann. § 107.159 (2006)). Finally, the following states specifically address the relocation issue without implementing a notice requirement: Illinois (750 Ill. Comp. Stat. Ann. § 5/609 (2006)), Iowa (Iowa Code Ann. § 598.21D (2006)), Massachusetts (Mass. Gen. Laws ch. 208, § 30 (2006)), Michigan (Mich. Comp. Laws § 722.31 (2006)), Minnesota (Minn.Stat. § 518.195, Subd. 7 (2006)), Nevada (Nev.Rev.Stat. § 125C.200 (2006)), New Jersey (N.J. Stat. Ann. § 9:2-2 (2006)) and North Dakota (N.D. Cent.Code § 14-09-07 (2006)).

It's clearly time for our legislature to address the problem. (The AMML Model Relocation Act, anyone?) Meanwhile, we'll see if our Supremes have a magic wand.

Parenting Coordinators: A Referee for Mom and Dad

A Referee for Mom and Dad: Increasingly, Divorced Couples Enlist Professionals to Help Resolve Parenting Disputes is the title of the article by Rachel Emma Silverman in the Wall Street Journal, September 19, 2007; Page D1 (subcription required for online access). We have no statute in Kentucky regarding parenting coordinators, but in Jefferson County they are authorized by JFRP 707 at pp 85-86, available here. Note that the authority of the PC is only to make recommendations to the court unless the appointment is by agreement. Some quotes from the WSJ:

Generally, parenting coordinators are recommended by family-court judges or lawyers to ex-spouses who are in longstanding disputes. But in some places, such as Oklahoma, courts can mandate the use of a parenting coordinator even if the parents object. The service can get expensive, with coordinators typically charging anywhere from about $50 to $350 an hour.

Some of the issues parenting coordinators help resolve may be minor, but if left unaddressed, they can be the source of nasty fights that wind up in the courthouse, cost thousands of dollars in legal fees and clog family-court dockets. Robert Ross, supervising judge of the Nassau County, N.Y., matrimonial courts, had a case several weeks ago in which one parent was furious that the other parent was taking their child to McDonald's rather than Burger King.

"We have a limited amount of time during the day to deal with really important stuff," says Judge Ross. In the past few years, he says, parenting coordinators have helped reduce visits to his court over relatively small issues.

The article continues,

In the past decade, more states and counties have put in place statutes or programs spelling out rules and qualifications for parenting coordinators, though practices still vary widely across the country. About a dozen states, including Colorado, North Carolina and Oklahoma, now have statutes giving authority to parenting coordinators, most of them also setting rules for how they should practice, says Barbara Bartlett, a Tulsa, Okla., attorney who has tracked the laws. A growing number of jurisdictions, such as some counties in New York and New Jersey, use coordinators regularly even without state statutes.

The Association of Family and Conciliation Courts, a group of family-law and mental-health professionals, issued guidelines in 2005 outlining appropriate practices and training. The group, based in Madison, Wis., also holds parenting-coordinator training sessions around the country. Still, states have yet to adopt formal licensing or accreditation for parenting coordinators.

As the field grows, with wide variation among states and counties in how the coordinators are used, some parents and legal professionals are becoming concerned. Some coordinators may not be well-equipped to handle extremely high-conflict parents or really tough situations involving domestic violence, substance abuse or severe mental illness.

The AFCC guidelines can be accesssed here. The article concludes,

There are some issues that are considered off-limits for parenting coordinators. Generally, courts don't allow them to address major issues that can substantially change the terms of the divorce agreement or affect the rights of parents, such as custody arrangements, relocation decisions or substantial decisions regarding religion. They typically can only decide a range of issues that the parents and the court agree on.

Despite these caveats, some clients say the service has been invaluable.
Jennifer Johnston was divorced several years ago and got along decently with her ex-husband. Earlier this year, however, their young son was in an accident and needed to have part of his leg amputated. "When this came up, there were some pretty big decisions that had to be made. Our communication with each other bottomed out," says Ms. Johnston, 37, an information-technology manager in Atlanta.

Susan Boyan, an Atlanta parenting coordinator and psychologist, helped the two parties work on their communication, encouraging them to limit oral communication and use emails. She also recommended that they tone down sarcasm in emails and avoid using all-capital letters.

"A parenting coordinator has the ability to defuse the emotion," says Ms.
Johnston. "She kept us out of court." That, she notes, is "hugely beneficial to our son. Anything we can do to keep him away from additional conflict and keep his life stable is good." Her ex-husband didn't respond to a request for an interview via an intermediary.

South Dakota Supreme Court Holds that Child Should Keep Stepfather's Last Name

Family Law Prof Blog directs us to a new twist on the third party bio-dad of a child born during a marriage. What name should the child have? In the Matter of the Change of Name of L.M.G., (South Dakota August 8, 2007) , found here, Prof. Barbara Glesner Fines summarizes the court's ruling:

The Supreme Court of South Dakota in a 3-2 ruling has held that a girl conceived when her mother had an affair must keep the last name of her mother's husband, overruling the trial court order that had changed the child's name to that of her biological father. The child's mother reconciled with her husband before the child was born and her husband's name was on the child's birth certificate. The majority found that the daughter, now 3, should have the same last name as everyone else in the home in which she lives.

The Supreme Court majority said it is in the child's best interest to keep the same last name as that of her mother, stepfather and half-sister. "It makes no sense to change her name after two years to her natural father's name," Justice Richard Sabers wrote for the court majority. "From the standpoint of her best interest, her name should remain the same as her family unit because she socializes with them, will go to school with them and live with them the majority of the time. Why should she be unnecessarily required to explain why her surname is different from her family unit in all these circumstances?" The majority opinion said the circuit judge placed too much importance on the possibility that the girl's mother and stepfather might get divorced. Tiede also disregarded testimony that indicated the relationship was improving among the mother, biological father and stepfather, the justices said.

The two dissenting justices would have given deference to the trial judge. The trial judge had concluded that not allowing the name change might lead to estrangement with the biological father, who had visitation rights with the child for the past two years. "With the high divorce rate and increased numbers of blended families, it is not unusual for a child to have a different surname than the child's mother or half-siblings," Justice Judith Meierhenry wrote. Justice Steve Zinter also dissented, saying he believes the court majority mistakenly focused on only one factor whereas most name change cases focus on a variety of factors.