Divorce Law Journal

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.

Ky. Supreme Court Also Decides Pre-Judgment Relocation Case Today

Frances v. Frances, but the real discussion of the law is in Pennington v. Marcum. Digest to follow.

Fenwick Gutted By Ky. Supreme Court Today In Post-Decree Relocation Case

Pennington v. Marcum, decided today by the Kentucky Supreme Court. Congratulations to Martha Rosenberg! I dreaded reading Justice Cunningham’s dissent, only to find him cite the “prestigious” AAML and our model relocation act as guidelines that could have given courts greater guidance than best interests. A good day! We will post more on the case shortly and thereafter post a full digest.

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

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.

Relocation In Michigan And Edmund Fitzgerald Update (updated)

Just as the Kentucky Supreme Court has three relocation related cases pending, Michigan has been struggling with the issue. Here is Jeanne Hannah's post Mom's relocation of 91 miles causes change in custody in Updates In Michicgan Family Law.
Nearly a year ago I wrote about a missed opportunity to meet Jeanne at this post. Marcia Oddi dubbed it the adventure of the Edmund Fitzgerald and I promptly forwarded the haunting score to my hosts, who were not very amused. But, ha! They invited me back and we're planning to cruise up Jeanne's way again this summer. The one lesson I learned, though, is that you really can't plan when traveling by water. So, Jeanne, if I'm nearby I'll give you a call, but no advance dinner plans. :)
UPDATE: Marcia Oddi writes, Actually it is "The Wreck of the Edmund Fitzgerald."
See this excellent video, accompanied by the Gordon Lightfoot vocal.
http://www.youtube.com/watch?v=ZEwEfti7gRk. Thanks!

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

Oral Arguments And Briefs In Two KY Relocation Cases

Kentucky Court Report has collated and posted the following which includes links to briefs in which oral arguments are set December 13, 2007 before the Kentucky Supreme Court in two relocation cases:

9:00 a.m. FRANCES V. FRANCES (2007-SC-76-DGE)
"Child Custody. Issues in this marriage dissolution proceeding relate to the trial court's award of primary physical custody of the child to the father, and the effect of the mother's relocation out-of-state on the determination of the child's best interest."
Discretionary review granted 3/14/2007
Trigg Circuit Court, Judge Bill Cunningham
For Movant: Julia T. Crenshaw
For Respondent: Sands Morris Chewning
(Note: Justice Cunningham is recused)

Briefs:
Appellant’s Brief
Appellee’s Brief
Appellant’s Reply Brief
COA Decision: 2005CA002235

10:00 a.m. PENNINGTON V. MARCUM, F/K/A MILES (2006-SC-642-DG)
"Child Custody. Issues relate to the denial of a motion to modify a custody agreement based upon the residential custodian's relocation out of state with the child."
Discretionary review granted 1/18/2007
Boyd Circuit Court, Judge Marc I. Rosen
For Movant: Rhonda M. Copley
For Respondent: Martha A. Rosenberg
(Note: Justice Minton is recused)

Briefs:

Appellant's Brief
Appellee's Brief
Appellant’s Reply Brief
COA Decision: 2005CA002349

Here's the link where the oral arguments will be online.