Divorce Law Journal

Kentucky trial court must make its own findings of fact and may not nearly verbatim adopt party's proposed findings - Publish Opinion from Ky Court of Appeals

RETHERFORD V. MONDAY

Mother argued on appeal that the trial court failed to make specific, independent findings of fact in a custody case. The trial court had nearly verbatim adopted the proposed findings submitted by Father. The Court of Appeals vacated the trial court judgment holding that cases involving children and families require strict compliance with CR 52.01 which requires that the court  itself make findings of facts and conclusions of law. The Court of Appeals cites Callahan v. Callahan and the Supreme Court case Keifer v. Keifer as support for its decision. Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011);Callahan v. Callahan, 579 S.W.2d 385, 387 (Ky. App. 1979).

Justice VanMeter writes separately concurring in result alone. He disagrees with the majority writing “a trial court does not err by inviting counsel to submit Findings of Fact and Conclusions of Law, and then exercising its discretion in making its selection,” but writes that “the Findings appear to be unsupported by substantial evidence” in this case, thus he concurs in result.

Digested by Elizabeth M. Howell

Child Custody Evaluators Entitled to Quasi-judicial Immunity, Published Opinion from Ky Court of Appeals June 17, 2016

FEINBERG V. KEETON

2014-CA-001656-MR

TO BE PUBLISHED

CARTER

http://opinions.kycourts.net/coa/2014-CA-001656.pdf

Mother sued custodial evaluator for providing a false diagnosis regarding “parental alienation.” Trial court did not dismiss case after custodial evaluator made a claim of quasi-judicial immunity. The Court of Appeals holds that a custodial evaluator is entitled to quasi-judicial immunity and instructs the trial court to dismiss the complaint. The Court of Appeals affirms prior precedent stating “custody evaluators are entitled to quasi-judicial immunity as a means to protect the integrity of the judicial process.”

Digested by Elizabeth M. Howell

Published DeFacto Custodian Opinion from Ky Court of Appeals April 29, 2016

CHADWICK V. FLORA, ET AL.

Grandmother appealed an order finding she was not a de facto custodian of her grandchild. The order also denied her motion for custody and visitation.

Grandmother’s first argument on appeal is that the trial court erred in finding she did not met the KRS 403.270(1)(a) standard for a de facto custodian. The Court of Appeals agrees with the trial court and holds Grandmother was not a de facto custodian because she was not the child’s primary caregiver. “A grandparent who co-parents a child with the natural mother or father does not make the grandparent the primary caregiver.”

Grandmother next argues that the trial court should have held Father in contempt for violating the terms of an agreement Grandmother and Father made regarding visitation. The Court of Appeals holds the trial court did not err by denying the contempt motion as the trial court’s finding that Father was not at fault was fully supported by the evidence. Grandmother also argues the testimony of  the child’s counselor should not have been admitted as evidence because Father failed to disclose her as an expert in discovery. The Court of Appeals again affirms  the trial court, holding the counselor’s testimony was not utilized for the de facto custodian issue, only limited to  contempt.

Grandmother’s final argument is that the trial court should have held further hearings regarding custody and visitation, as the original hearing was limited to the issue of de facto custodianship. The Court of Appeals agrees holding the original hearing was limited and remands the case for additional proceedings on custody and visitation. The court notes that as Grandmother is not a de facto custodian she “must prove either: (1) the parents are shown by clear and convincing evidence to be unfit custodians; or (2) the parents have waived their superior right to custody by clear and convincing evidence,” to be successful in obtaining custody. Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010).

Digested by Elizabeth M. Howell

Injunction ordering father not to disseminate private emails affirmed by Ky Court of Appeals in a published opinion

WEDDING V. HARMON, ET AL.

Father shared private co-parenting emails between the parties (Mother and Father) with teachers, other parents, and relatives. After holding a hearing, the trial court entered an injunction ordering Father not to forward others private email communications between the parties. Father appealed arguing the order unconstitutionally infringed his right to freedom of speech. The Court of Appeals applies the analysis set forth in Hill v. Petrotech Resources Corp., 325 S.W.3d 302 (Ky. 2010) and affirmed the trial court because the injunction on Father’s speech was 1) narrowly tailored, 2) made after a final adjudication, 3)  prohibited only unprotected speech, 4) not subjected to heightened scrutiny, and 5) in the best interest of the children.  

Digested by Elizabeth M. Howell

Custody appeal dismissed where notice of appeal was not amended to include ruling on post-judgment motion. Ky Court of Appeals Published Opinion

BROOKS V. BYRD

Mother filed an appeal from a custody order while a post-judgment motion was pending. After the filing of the appeal, the trial court ruled on the post-judgment motion entering findings of facts, conclusions of law, and a custody/visitation order. Mother did not amend her notice of appeal and the post-judgment documents were not included in the certified record. Therefore, the Court of Appeals declined to enter a ruling on the merits and dismissed the appeal for noncompliance with CR 73.02(1)(e) (ii) which states “A party intending to challenge a post-judgment order listed in this rule, or a judgment altered or amended upon such motion, must file a notice of appeal, or an amended notice of appeal, within the time prescribed by this rule measured by the date of the CR 77.04(2) docket notation regarding service of the order disposing of the last such remaining motion.”

Digested by Elizabeth M. Howell

Ky Court of Appeals - GAL may invoke or waive the child's patient-psychotherapist privilege on behalf of the child in a child custody proceeding

EVANS V.HESS, ET AL.

The Kentucky Court of Appeals addressed three appeals stemming from the same Boone Family Court post-dissolution case:

2013-CA-002072-ME

The first appeal filed by Father challenges the court’s subject-matter jurisdiction, custody modification, and child support modification. Father first argues the Kentucky court lacked subject-matter jurisdiction because the Petition was filed in Kentucky before the Montana court determined Kentucky was the more convenient forum. Prior to the current appeal, Father filed a writ of prohibition and the Court of Appeals held Kentucky had subject-matter jurisdiction. As the “law of the case” doctrine provides that a decision of an appellate court applies to any subsequent trial or appeal, even if erroneous, Father’s argument is without merit. The Court of Appeals holds the trial court had subject-matter jurisdiction.

Father goes on to argue the trial court abused its discretion in modifying custody. He first cites Mother’s failure to file two affidavits pursuant to the requirements set forth in KRS 403.350. The Court of Appeals applies the Supreme Court’s ruling in Masters v. Masters holding, “a trial court had authority to rule on a motion for custody modification despite the party’s noncompliance with an affidavit.”  Masters v. Masters, 415 S.W.3d 621, 624 (Ky. 2013).

Father further argues that the trial court abused its discretion by disregarding the custodial evaluation. The Court of Appeals affirms the trial court holding it did not abuse its discretion citing its consideration of all the evidence and finding the custodial evaluation less credible than other evidence presented.

Father also argues the trial court abused its discretion in modifying child support. The Court of Appeals disagrees holding the trial court’s decision was not clearly erroneous in that the trial court’s decision was supported by substantial evidence.

2014-CA-001512-ME

The second appeal filed by the children’s GAL questions the trial court’s authority to overrule the GAL’s objection to testimony from the children’s psychotherapist. KRE 507 governs patient-psychotherapist privilege and grants exceptions to the privilege only when the  mental condition of the patient is at issue. In this case, the testimony was not directly related to the mental health of the children. Traditionally, no exception would apply. However, Kentucky has never held children have an independent right to assert patient-psychotherapist privilege in custody proceedings.

The Court of Appeals holds that a GAL when appointed may either invoke or waive the patient-psychotherapist privilege on behalf of the child stating:

“To allow a parent to waive a privilege held by the child in a custody

dispute, over the objections of that child, is not only bad policy, but defeats the

purpose of the existence of the privilege. The impropriety of a rule allowing such

waiver would be further complicated here by the fact that the parent waiving the

privilege was furthering interests which are neutral, if not actually adverse, to those

of the children.”

The Court of Appeals reverses the trial court to the extent the testimony from the children’s psychotherapist was admitted.

Notably, the court states this case is distinguishable from Bond v. Bond where the mental health of the children was at issue, but does not clarify when the children’s mental health is of enough significance to rise to the level of one of the exceptions to the privilege found in KRE 507(c). Bond v. Bond, 887 S.W.2d 558 (Ky. App. 1994). The court simply states, “the psychotherapist-patient privilege protects confidential communications from disclosure no matter how relevant they may be to a disputed issue.”

 

2015-CA-000043-ME

The final appeal addresses issues of contempt. Father argues that the trial court abused its discretion by denying his request for make-up parenting time as a sanction for Mother’s contempt. The Court of Appeals holds the trial court did not abuse its discretion because Father’s motion did not include any language to indicate his request was sought as a sanction, contained multiple motions, and was moot.

Next Father argues the court abused its discretion by denying his motion to modify child support when one of his children turned eighteen. Father’s motion did not include a child support worksheet, income information, or insurance documentation as required by KRS 403.212(6)(a) and FCRPP 9(4). While Father is entitled to a review of child support, the Court of Appeals holds the trial court correctly determined the motion at issue was defective.  

Finally, Father argues the trial court abused its discretion by staying Mother’s payment of his attorney fees as a sanction during the appeal. The Court of Appeals holds the prevention of inconsistent rulings is a legitimate reason to stay the enforcement of the sanction and such order was within the trial court’s discretion.

Digested by Elizabeth M. Howell

Where Cabinet Place Child With Foster Parents, Foster Parents Lack DeFacto Custodian Standing - Published Opinion From Ky Court of Appeals

WELLS, ET AL. V. TOYE

Foster parents  appealed from a Circuit Court decision finding they lacked standing to qualify as de facto custodians. The Appellate Court affirms the Circuit Court holding that the rule set forth in Swiss applies in this case. Swiss v. Cabinet for Families and Children, 43 S.W.3d 796, 797 (Ky. App. 2001). Foster parents “may not use the de facto custodian statutes to challenge the cabinet’s custody of the child where the child was placed with the foster parents by the cabinet.”

Digested by Elizabeth M. Howell

Published Opinion from Ky Supreme Court - Same Sex Partner Permitted to Intervene In Step-Father Adoption Case

A. H. V. W.R.L. AND M.L.

“Questions Presented: Family Law. Custody. Same-Sex Relationship. Step-Parent Adoption. Intervention of Right. Trial court properly
allowed the child’s biological mother’s ex-partner, who allegedly co-parented the child for seven years and has a pending custody
petition, to intervene in the step-parent adoption case that would have declared mother’s husband to be the child’s second legal parent.”

Same sex parent (“Amy”) filed a motion to intervene in a step-father’s adoption proceeding. The Appellate Court held that Amy did not have standing to intervene in the custody case appeals. The Supreme Court accepted discretionary review and reversed the Court of Appeals opinion and reinstated the trial court’s order allowing Amy to intervene.

The Supreme Court starts by noting that intervention and standing are two distinct concepts and were misapplied by the Court of Appeals. The Supreme Court does not clarify the distinction between standing and intervention as standing is not a requirement for intervention in an adopting proceeding.

The Supreme Court holds that Amy is entitled to intervention of right under CR 24.01 which allows anyone with a “cognizable legal interest” to intervene in an action. As Amy has an interest in her ongoing relationship with the child, supported by a plethora of facts about her participation in the child’s life, she clearly satisfies the requirements of CR 24.01. The Supreme Court concludes the trial court’s decision was logical and not clearly erroneous, noting courts are granted great discretion in both determining the facts in domestic cases and efficiently managing their dockets.

The Supreme Court also discuss CR 24.02 which allows permissive intervention. A trial court has the authority to allow intervention under CR 24.02 even in cases where the individual intervening fails to meet the standards set forth in CR 24.01.

See our prior post on the overturned Court of Appeals Opinion.

Digested by Elizabeth M. Howell.

 

Published Family Law Opinion from Ky Court of Appeals: DVO, Parenting Time, Writs,and Transfer of DVO to Court Where Custody Action Pending

PATTERSON V. WINCHESTER

A DVO was entered by Fayette Family Court preventing father from exercising his parenting time as ordered by Whitley Circuit Court, the court with jurisdiction and venue over custody and visitation. Father filed a motion in the Whitley Court case requesting sole custody and for restoration of his visitation rights. Mother responded by filing an original action in the Court of Appeals asking for writs of prohibition pursuant to CR 76.36.

Mother asked for writs preventing the Whitley Court from enforcing its parenting time order, preventing the Whitley Court from “modifying, amending, vacating or reversing” the DVO, and mandating the Whitley Court honor the DVO.

The Court of Appeals first sets forth the standard for a writ of prohibition, holding a writ can only be granted when "(1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted." Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

The Court of Appeals declined to grant Mother's request for writs preventing the Whitley Court from enforcing its parenting time order and  vacating, altering or amending the Fayette DVO. The Court of Appeals holds that there is no merit to Mother's argument as the Whitley Court has jurisdiction over custody and parenting time, and Mother has the right to an appeal should the Whitley Court act erroneously.

The Court of Appeals also declined to grant a writ mandating the Whitley Court honor the DVO, holding the DVO does not take precedence over the earlier custody and visitation order.

The Court of Appeals adds that the Fayette Court should have transferred the DVO case to Whitley, stating that "the best practice is for the court where the DVO was filed to transfer the DVO action to the court where the custody action is already pending."

Digested by Elizabeth M. Howell

 

DeFacto Custodian Published Opinion from Ky Court of Appeals Today

JONES-SWAN v. LUTHER

Biological parents voluntarily placed children in Appellants' care during a custody dispute in which biological father was seeking sole custody in an action for dissolution of marriage. Father was granted sole custody of the children. Appellants returned children to biological father and filed a petition requesting status as de facto custodians under KRS 403.270.

The Court of Appeals held the trial incorrectly interpreted KRS 403.270 as requiring the de facto custodians to have possession of the children when filing a petition for de facto status. A person asking for status as a de facto custodian need not have physical possession of the child, but must have had physical possession, as the primary caregiver and financial support, of the child for at least six months.

However,  this case, the Appellants did not meet the six month requirement because during the time the children were in their care there was an ongoing custody dispute. Under KRS 403.270 “any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.” Thus, the Court of Appeals ultimately affirmed the trial court’s order dismissing Appellants' petition for de facto custodian status.

Digested by Elizabeth M. Howell

 

Ky Court of Appeals Published Opinion Today: Grandparent Custody and Child Support

LAMBERT V. LAMBERT

Maternal grandfather who resided in Kentucky took possession of grandchildren whose mother resided in Pennsylvania, after mother took the children for a visit and never returned to retrieve the children. Grandfather filed a dependency, neglect, and abuse proceeding and was granted temporary custody of the children.

Grandfather subsequently filed a petition for child custody. After a hearing, the court granted custody to grandfather. Mother appealed arguing the court did not have jurisdiction, erred by granting custody without permitting her to present her case, considered inadmissible hearsay, and erred by ordering her to pay child support without evidence of income.

The Court of Appeals looks to KRS 403.822 and holds that the court had jurisdiction to grant grandfather custody. The KRS 403.800(7) definition home state is met as 1) the children had been living in Kentucky for over six consecutive months prior to the filing of the petition, and 2) grandfather was a person acting as a parent as he was awarded temporary custody in the dependency action.  Grandfather did not need to have de facto custodian status to bring an action for child custody.

Next the Court of Appeals looks to mother’s argument that the court erred by granting custody without permitting her to present her case. Mother was present, although under the influence of cocaine, at the custody hearing. As she made no attempt to offer any proof or evidence and did not objection to the guardian ad litem’s motion to grant grandfather custody or the entry of the decree, the alleged error is not considered by the Court of Appeals as it was not preserved for review. Notwithstanding, the court notes a directed verdict was appropriate given the evidence of mother’s conduct.

The court then considers mother’s hearsay argument. Mother argued that it was hearsay for the Kentucky social worker to testify as to information provided by the Pennsylvania social worker. The court finds it was likely inadmissible hearsay, but finds it was a harmless error. Mother also argued it was hearsay for the court to take judicial notice of the dependency action. Judicial notice was proper under KRE 201(b). The Court of Appeals holds this argument has no merit as judicial records are not subject to reasonable dispute and also admissible as public records.

Finally, mother argues that the court erred by ordering her to pay child support without evidence of income. The court imputed mother with minimum wage without hearing any evidence, despite the fact that mother has two other children under the age of three. The Court of Appeals finds the trial court abused its discretion by imputing minimum wage to mother in light of her caring for children under the age of three and order the court to input mother’s income at zero and order the minimum $60 child support award on remand.

Digested by Elizabeth M. Howell

October 23, 2015 Published Family Law Opinion from Ky Court of Appeals: Required Child Custody Findings

GLODO v..EVANS, ET AL.

Grandparents assumed care of children, with the exception of a special needs child, after biological mother and biological father were both incarcerated. The special needs child was placed with friend of grandparents equipped to deal with his special medical needs. Grandparents filed motion to be designated as de facto custodians and for permanent custody of all three children. Biological father consented to grandparent’s motion for permanent custody and waived his right to appear at the hearing. After a hearing on the matter, the family court awarded grandparents permanent custody, finding biological father had waived his rights, biological mother was unfit to have custody, and it was in the best interest of the children for grandparents to have custody, although the grandparents were not de facto custodians.

Biological mother argues that the family court failed to prove she was an unfit parent, and therefore there are no grounds to award permanent custody to a non-parent. The court merely stated “The mother has a serious substance abuse problem,” while the mother provided testimony she as attended AA meetings, was sober, had passed all drug tests, maintained full-time employment, and cared for the children for almost the entire month of June after being released from prison. As the family court provided a conclusory statement regarding mother’s unfitness, and made no other findings of fact, the Court of Appeals vacated and remanded the order granting grandparents custody. Although not necessary, the Court of Appeals also notes the family court did not conduct a proper best interest analysis, as the court failed to address the factors set forth in KRS 403.270.

Digested by Elizabeth M. Howell

Supervised Visitation Order reversed by Ky Court of Appeals in Published October 2, 2015 Opinion

RYAN V. RYAN

Mother filed a motion to suspend father’s summer visitation time after daughter reported smelling marijuana in the home. Father submitted to a urine test which was negative for all substances, and a hair follicle test which tested positive for marijuana. There was no mechanism for determining the date of marijuana use. At a hearing in front of a domestic relations commissioner, father testified he did not smoke marijuana and rarely drank alcohol. The commissioner recommended Father’s timesharing be reinstated, but the trial court entered an order requiring father’s visitation to be supervised until he had six months of clean drug tests.

Father argues that trial court unreasonably restricted his visitation rights in violation of KRS 403.320(3). The Court of Appeals agrees reversing the judgment of the trial court. In order to modify visitation, the trial court must find that visitation would seriously endanger the child. After considering the evidence, the Court of Appeals finds that there was not sufficient evidence to establish daughter was seriously endangered by Father’s visitation where Father denied smoking or possessing marijuana, immediately submitted to a drug test which came back negative, daughter never saw Father smoking, and daughter did not see drug paraphernalia in the home.

Digested by Elizabeth M. Howell

Published Famiily Law Opinion from Ky Court of Appeals September 11, 2015: Child Custody

 S. E.A. v.  R. J.G.

Child was temporarily removed from Mother’s custody in a DNA action. Father filed separate custody action in which mother stipulated to dependency for the purposes of temporary custody. At a subsequent DNA hearing, the family court determined the child should remain in father’s temporary custody with timesharing to be determined in the custody action. The court-appointed G.A.L. issued a report after the DNA hearing. Then, the family court issued an order giving father sole custody and ordering temporarily removal from mother. The family court stated all further orders would be entered in the custody action.

The parties while preparing for a custody hearing in Kentucky, opened a case in Connecticut. The Kentucky court cancelled the custody hearing upon being advised of the Connecticut action. Subsequently, father filed a motion for permanent custody in both Kentucky actions. The family court granted father permanent custody with a hearing. Upon mother’s motion to vacate, the court ordered  the G.A.L. to submit another report. After the report was filed, the family court entered findings of fact and conclusions of law granting father permanent sole custody relying, almost exclusively, on the G.A.L.’s reports.

The Court of Appeals vacated the family court’s order and remanded the action, holding a full evidentiary hearing was necessary and mother should have been given an opportunity to cross-examine the G.A.L. A hearing in a DNA action, predating a psychiatric evaluation and and G.A.L. reports, cannot serve as a basis for a later order regarding permanent custody.

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Supreme Court - Whether a child testifies is in the discretion of the trial court and six hour time limit on trial was reasonable

ADDISON V. ADDISON

After significant ongoing litigation over custody, the Trial Court ordered that custody be transferred to Father and that Mother have supervised visitation. The Court of Appeals reversed because of the arbitrary time limitation at trial. Upon discretionary review the Ky Supreme Court reversed the Court of Appeals and reinstated the trial court’s judgment.

Time Limitations

As the Trial Court judge was familiar with the case, set the time limit sufficiently in advance of trial, and had significant experience with modification hearings, six hours was a reasonable time limitation within the discretion of the Judge.

Children’s Testimony

Mother requested the minor children testify as part of the modification hearing. The Trial Court declined to interview the children in chambers or allow them to testify. Mother argued on appeal the Trial Court did not have the authority to exclude the children’s testimony, when the children were called by a party to be a witness in a custody proceeding. The Court of Appeals, citing Coleman agreed. Coleman v. Coleman, 323 S.W.3d 770 (Ky. App. 2010). The Kentucky Supreme Court reversed the Court of Appeals and Coleman holding that the decision to interview a child or permit a child to testify in custody proceedings is within the discretion of the trial court. KRS 403.290(1) which grants a judge discretion in interviewing a child would be defeated if a party could obligate a child to testify. Additionally, the Trial court had the benefit of a GAL, two psychologists, and there is strong policy against placing a child between parents. The Trial Court’s decision was within its discretion.    

Jurisdiction

Although the Mother and children resided in Indiana, Kentucky was the undisputed home state when custody was initially determined. Father remained in Kentucky and exercised visitation in Kentucky. The Trial Court properly considered KRS 403.834 in determining Kentucky retained jurisdiction. Furthermore, Mother’s timing in requesting a change in jurisdiction was suspect.

Best Interest Standard, Attorney Fees, and Psychological Evaluation

The Supreme Court affirmed the Trial Court on all remaining issues finding no errors. The Trial Court properly applied the best interest standard by considering the KRS 402.340 and 403.270 factors, as well as an expert’s recommendation. The Trial Court declined to award mother attorney fees, as Mother’s actions necessitated the proceedings and there is nothing mandatory in an award of fees under KRS 403.220. Finally, the Trial Court properly denied Mother’s motion for Father to undergo a psychological evaluation as Father’s mental health was never in controversy.

Digested by Elizabeth M. Howell

 

Published Family Law Opinion from Ky Court of Appeals: Written Findings Required in Domestic Violence Proceedings

BOONE V. BOONE

The mandate for written findings of fact and conclusions of law applies to DVO cases. CR 52.01 and KRS Chapter 403, along with the holding in Keifer, require findings in family law cases be reduced to writing. DVOs affect child custody, therefore they fall within the purview of CR 52.01. In this case, although adequate findings were made orally from the bench, the Appellate Court remands the case to the Trial Court for written findings of fact and conclusions of law.

Keifer v. Keifer, 354 S.W.3d 123, 126 (KY. 2011).

Digested by Elizabeth M. Howell

 

Ky Published Opinion: Reasonable Parenting Time

HUDSON V.COLE

Father, a Michigan resident, and Mother, a Kentucky resident, live five hours apart, but were granted joint custody. The Trial Court ordered Father to have parenting time one weekend a month in Kentucky, in line with the “Parenting Time Assessment” report submitted by an expert appointed to conduct a custody assessment. The Trial Court found expert’s parenting time schedule to be in the child’s best interest and adopted it as a Court Order. Father argued that under KRS 403.320  he should have reasonable visitation, unless it the court found his visitation would seriously endanger the child. The Appellate Court rejected his argument, as KRS 403.320 applies to visitation modifications or denials, and this case was not a modification of a pre-existing order. The Appellate Court affirms the Trial Court and  holds “reasonable visitation is decided based upon the circumstances of each parent and child, with the best interests of the child in mind.”

Digested by Elizabeth M. Howell

 

Ky Published Opinion - Emergency Custody, DeFacto Custodian, and Grandparent Visitation

ROBISON V. THEELE, ET AL.

Mother lived with her parents (hereinafter “grandparents”), and passed away after treatment for cancer, which mother underwent during dissolution proceedings. Father exercised visitation regularly during the proceedings and mother’s cancer treatment. At the time of the Mother’s death, the Trial Court awarded Grandparents a “status quo ex parte” order to keep Father’s visitation in place. Subsequently, the Trial Court awarded de facto custodian status to Grandparents, gave Grandparents sole custody, and granted Father supervised visitation with his children. The Trial Court did not make findings supporting its Judgement. The Appellate Court vacated and remanded the Trial Court’s Judgement.

First, the Appellate Court holds there is no authority for a “status quo ex parte” order, The Trial Court should have followed the KRS 620.060(3) procedure which provides for an emergency custody order. Second, they hold there were no findings to support the Trial Court’s award of de facto custodianship to Grandparents and reiterate the superior rights of natural parents. The Appellate Court also holds that the dissolution proceedings between Father and Mother tolled the time period required for the grandparents to establish their de facto custodian claim, as custody issues were contested in the divorce proceeding. Finally, the Appellate Court holds the Trial Court did not make the requite findings to award grandparent visitation which must overcome the presumption that a parent acts in the child’s best interest when denying grandparent visitation.

Digested by Elizabeth Howell

 

Ky Published Opinion - Child Custody and Servicemembers Civil Relief Act

WOOD V. WOESTE

Father and Mother had  joint custody of child, who was living in Kentucky with Father during the school year. Mother resided in Montana. Father was given notice he was being returned to active service in the National Guard Air Force in September 2014. In December, Mother filed a motion for temporary primary residential custody citing Father’s deployment as a substantial change in circumstances. Father filed a motion to stay the proceedings under the Servicemembers Civil Relief Act (hereinafter “SCRA”). The Trial Court denied Father’s SCRA motion, and held a hearing in January 2015. The Trial Court ordered the child reside with Mother as the temporary residential custodian, until Father returned from deployment. The Appellate Court notes that in making this decision the Trial Court failed to utilize the best interest of the child standard, as required. Active duty deployment is the base for a substantial change in circumstance, but does not eliminate the need to use the best interest standard.

The Appellate Court grants a writ of prohibition holding Father made a showing the Trial Court acted erroneously, there is no adequate remedy by appeal, and great injustice and irreparable injury have resulted. The Appellate Court held that while the SCRA’s predecessor allowed court’s to use discretion in granting a stay, the ACRA language mandates a stay. The father complied with the requirements of the SCRA, therefore the Trial Court erred in failing to grant a stay. As the child was relocated during the school year without consideration of his best interest, the Appellate Court also held that a later appeal would not be adequate and the injury was irreparable. Thus, the Appellate Court grants Father a writ of prohibition ordering the Trial Court to return the child to Kentucky, from Mother’s residence in Montana  as soon as  practical.

Judge Maze dissents comparing the SCRA to its predecessor which allowed Trial Court’s to use discretion in the decision to grant a stay. Judge Maze also points out that now that the child has already been moved to Montana moving him back to Kentucky simply aggravates the injury that has already occurred.

Digested by Elizabeth Howell

Court Appoionted Psychologist Enjoys Quasi-Immunity, Ky Court of Appeals

J.S V. BERLA

While not a family court case, as an action against a court appointed psychologist, this case is important to family law practitioners.

A father filed an action against a court appointed psychologist making a custody evaluation. The father alleged slander and libel arguing the psychologist did not act in good faith in making a  verbal report to the CFHFS and in her written Custodial Evaluation Report. The father also argued the psychologist  breached the good faith and fair dealing contractual requirement of the Uniform Commercial Code (“UCC”). The trial court granted summary judgment in favor of the psychologist.

The Appellate Court affirms the Trial Court holding there was not sufficient evidence to prove the psychologist was not acting in good faith or was acting with knowledge of falsity. The Appellate Court holds a court-appointed psychologist is given quasi-judicial immunity in order to complete the job effectively and immunity applied in the case at hand. The Appellate Court also points out that a court-appointed task is not one that falls under the authority of the UCC, hence summary judgment was appropriate.

Digested by Elizabeth M. Howell

Another Ky custody case reversed where GAL filed a report... Published Opinion from Ky Court of Appeals January 16, 2015

HOSKINS V. HOSKINS

The Circuit Court used the report and investigation of a Guardian Ad Litem (GAL) to make findings a custody modification was appropriate. The Appellate Court applied Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) and held the Circuit Court “erroneously appointed the GAL to represent the child and to conduct an investigation and file a report…” The appellate court emphasized the Supreme Court’s reasoning in Morgan, particularly the ethical and constitutional problems with conflating a Friend of the Court with a GAL. The Appellate Court reversed and remanded the Circuit Court Order modifying parenting custody, as the error was not harmless because the only facts cited in the order were from the GAL’s report.

Published UCCJEA Opinion from Ky Court of Appeals Today

Danaher v. Hopkins

Trial court's denial of petition to register a foreign custody judgment was affirmed. A court must enforce a foreign judgment only when the issuing state had jurisdiciton under the UCCJEA. Because North Carolina did not have initial jurisdiciton it does not have exclusive continuing jurisdiction. 

Trial court's finding that Kentucky is the home state of the child was affirmed. Reversal of a factual finding requires it to be clearly erroneous and not supported by substanial evidence which is not the case in this matter.

Father also appealed from a second order requiring a custody action to proceed before Warren Circuit Court. This was not a final  and appealable order as it did not adjudicate the rights of either party. Therefore the appeal of this order was dismissed.

 

 

Published Opinion from Ky Court of Appeals Today: Order requiring mother to have a passport issued for child affirmed

Benton v. Sottingeanu

An order requiring a parent to obtain a passpot for a child does not require specific findings of fact where no modification of parenting time is made. The court must consider the child's best interests. Federal law permits a court to order a passport where a joint custodian refuses consent. Court's order requiring mother to insure issuance of passport was affirmed.

The court of appeals noted numerous safeguards were imposed by the trial court  to monitor international travel, including that mother would retain the passport, a hearing regarding travel would be held once a prliminary interary was proposed, father would have to post a $250,000 cash bond if travel is permited by court order, mother would have conatct with the child while away, and after the child is returned the passport will be delivered back to mother.  

Fourth Published Family Law Opinion from Ky Court of Appeals Today

Waddle v. Waddle

Award of grandparent visitation reversed because court failed to apply the modified best interest standard to consider the objection of mother who is presumed fit. Court must presume a fit parent is making decisions in the best interest of the child. Case was remanded for a new evidentiary hearing at which grandparents must provide clear and convincing evidence that visitation is in the child’s best interest and trial court must use Walker factors and provide written findings of fact.

Third Family Law Published Opinion from Ky Court of Appeals Today

Luu v. Murphy, et al

Child custody award to de facto custodians reversed. Substantial evidence of record does not support the conclusion that appellees were child's primary caregivers and primary financial supporters. Trial court appears to have based its ruling on testimony of the appellees that they "believed" they were no longer just babysitting the child but that they were keeping her on a permanent basis. During three of the months appellees had the child it was clear that this was meant to be a temporary babysitting arrangement. Mother's temporary absences from West Virginia did not cout against the six-month period required to establish the home state of the child. Even if Kentucky had jurisdiction, under facts of this case appellees could not be declared de facto custodians because they had not been child's primary caregiver and financial supporters for six month before mother sought to regain custody.

The West Virginia family court has jurisdiciton.

Published family law opinion from Ky Court of Appeals today - change of primary residence

A.G. v. T.B.

A custody determination is separate from parenting time. A modification of parenting time, even one that changes the child's primary residence, does not alter joint custody. Two affidavits are not required for a motion to change primary residence. Trial court did not abuse its discretion in prohibiting mother from relocating the children and granting father primary residence of the children.

Ky Role of Guardian ad Litem and Friend of the Court in Custody Litigation - Case Digest and Link

Morgan V. Getter and A.G., A Child

Issue

 

In a custody matter, can a Guardian Ad Litem (“GAL”) serve as both an attorney for the minor child involved in the custody dispute, as well as an investigator for the Family Court?

 

Facts

 

In 2011, Getter petitioned to modify custody for the parties’ only remaining minor child. The Family Court subsequently appointed a GAL for the minor child. The GAL filed a report based on interviews and a visit to the residence of the custodial parent, Morgan. In the report, the GAL ultimately recommended the minor child be allowed to relocate to Florida and live with Getter.

 

At the hearing, Morgan requested to cross-examine the GAL about the report favoring Getter. The Family Court denied this request and the hearing progressed. Morgan moved to strike the GAL’s report, and the Court deferred ruling on the motion. Ultimately, the Court gave Getter joint custody with primary physical custody. The minor child relocated to Florida with Getter. Morgan appealed the decision, but during the appellate process the minor child turned eighteen.   

 

Analysis

 

Mootness and Public Policy Exception

 

The Court first looks to the issue of mootness, as the minor child turned eighteen making moot any decision on the child’s custody. The Court formed a public interest exception to the mootness rule, differentiating it from the capable of repetition rule used in prior cases.

 

The Court sets out a three-prong test for the public interest exception to mootness. “(1) The question presented must be of a public nature; (2) there must be a need for an authoritative determination from the Court for the future guidance of public officers; and (3) there must be a likelihood of future recurrence of the question.”

 

The Court then holds that the elements of the public interest exception are present in the current case, as (1) the proper role of a GAL is a “substantial question of a public nature;” (2) Family Courts addressing custody would benefit from future guidance; and (3) issues regarding the proper role of GALs are certain to occur in many other cases and will likely evade review, especially when the dispute involves older children.

 

Proper Role of GALs in Custody Disputes

 

Due process, as set out in Mathews v. Eldridge, requires a “(1) private interest affected by official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and (3) the Government’s interest additional or substitute procedure would entail.”

 

In this case, (1) there is a clear liberty interest in the care and custody of a minor child; (2) the Court’s actions significantly altered Morgan’s ability to care for and have custody of the minor child, and (3) the State has no interest in disallowing the testimony of the GAL. Based on this analysis, the Court concludes that Morgan’s due process rights include the right to cross-examine the GAL in the custody proceeding.

 

The Family Court erred by allowing the report and disallowing a cross-examination of the GAL authoring the report, violating Morgan’s due process rights. The Court held that due process is compromised when attorneys serve as both investigators for the court and attorneys for minors involved in custody disputes.  Because of this inherent conflict, the court holds that a GAL cannot serve as both an investigator for the Court and an attorney for the minor child.

 

Instead of using a GAL as an investigator, a Family Court may appoint a de facto Friend of the Court (“FOC”) to serve as an investigator under KRS 403.300(1) and FRCPP 6(2)(f). The investigator can file a report, but must be available for cross-examination.  Alternately, a Family Court may appoint a GAL to represent the child under FRCPP 6(2)(e). As a representative of the child, the attorney cannot put her own credibility at issues.

 

The Court also makes a distinction between an attorney representing the child’s best interest from an attorney representing the child’s express interest. The Court holds a GAL should represent the child’s best interest as children have diminished capacity. An attorney is authorized under SCR 3.130-1.14(b) to reasonably protect a client with diminished capacity. Thus, a GAL may balance the wishes of a child with the child’s best interest.  

 

Conclusion

 

Family Courts will need to alter current practices, appointing a de facto FOC to investigate on behalf of the Court and/or appointing a GAL to represent the child. The appointment of both a de facto FOC and GAL are available to the Court, but are not requirements for proceeding in a custody matter. 

 Digested by Elizabeth M. Howell

Ky Court of Appeals, July 18, 2014, Published Opinion Reversing Order Reinitiating Contact With Mother

OSTER VS. OSTER

The Appellate Court reversed and remanded a Trial Court Order for reinitiation of contact between a mother and her two children. The Appellate Court first held that the Trial Court’s  original order conditioning reinitiation on compliance with all therapeutic recommendations was never modified, set aside, or reversed. Therefore, the mother was bound by it. The mother’s noncompliance with the original order was enough to bar reinitiation of contact.

The court reiterated the principle that when there is a previous denial of visitation, there is no presumption visitation is in the child’s best interest. The mother’s DVO prohibiting contact which her children destroyed the presumption visitation was in her children’s best interest. It is the child’s best interest which controls the decision to resume visitation. In this case, the court held reinitiation was not the children’s best interest because none of the experts believed visitation should resume, the mother had ongoing mental health problems, and the conditions of the previous order had not been met. The desire of the children to see their mother was not sufficient evidence visitation was in their best interest.

New UCCJEA Published Opinion from Ky Court of Appeals April 25, 2014

Curry v. Curry

Residency in KY is not a requirement for continuing jurisdiction. The central inquiry is whether child maintained a substantial connection with KY. UCCJEA is concerned with child's connection to the state, not a particular county.

Child custody may be established only after conducting a hearing even when party is otherwise entitled to a default judgment. Published Opinions from Ky Court of Appeals March 7, 2014.

Crews v. Shofner  Child custody may be established only after conducting a hearing even when party is otherwise entitled to a default judgment.

 

Three Published Family Law Opinions from Ky Supreme Court Yesterday

Bell v. Bell  Unreimbursed business expenses may not be deducted from the gross income of an employed parent in calculating child support. However if trial court finds the amount of unreimbursed expenses an extraordinary factor, it may deviate from the guideline award to reach an equitable result.

 

Cabinet for Health and Family Services v. K.H., Sr.   Family court made particularized finding of abuse by each parent which was supported by substantial evidence and properly considered each of the six statutory factors in determining that termination of parental rights was in the child’s best interest. Court of Appeals opinion was therefore reversed and the family court’s order terminating parental rights was affirmed.

 

Coffey, et al v. Wethington  A person acting as a parent has standing to bring a custody action. If the person acting as a parent has physical custody of the child at the time the action is commenced, standing exists and it need not have been for six consecutive months. The six month requirement applies only to persons who had physical custody in the past but who do not have physical custody at the commencement of the action.

Published Family Law Opinion from Ky Court of Appeals Today: Split custody modification jurisdiction under UCCJEA

Ellis v. Ellis

 Where Ky did not issue original custody decree, neither child currently resides in issuing state and that state declines to exercise exclusive continuing jurisdiction, and one child lives with father in Ky and other child resides with mother in AZ, Ky is clearly the home state of one child and AZ is clearly the home state of the other child. The only issue is whether Ky should decline to exercise jurisdiction to modify because AZ is a more appropriate forum. While splitting jurisdictions should generally be avoided, in this case trial court was reversed because AZ has no connection to the son, no relevant information about the child is located in Az, and none of the factors of KRS 403.834(2) would favor AZ’s exercise of jurisdiciton over KY.

 

Family Law from Ky Supreme Court today: Failure to file two affidavits in support of motion to modify child custody inside two years from final decree does not divest the court of subject matter jurisdiction, overruling Petrey v. Cain. While motion may ha

Masters v. Masters 

Failure to file two affidavits in support of motion to modify child custody inside two years from final decree does not divest the court of subject matter jurisdiction, overruling Petrey v. Cain. While motion may have lacked requisite number of affidavits, because party did not raise the issue before trial court she cannot raise deficiency on appeal.

Ky Supreme Court Grants Discretionary Review in G.A.L. case, Morgan v. Getter

We will be following this one closely. Here is the Ky Court of Appeals opinion.

UCCJEA Divests Family Court of Jurisdiction when Parents and Child have Left Kentucky, Ky Case Digest, Wahlke v. Pierce

Wahlke v. Pierce, No. 2012-000022-ME

Published: Reversing and Remanding

County: Campbell

FACTS:

Mother and Father were married in 2000 and filed for dissolution of the marriage in 2008. When the petition was filed, Mother, Father and Child born of the marriage lived in Campbell County, Kentucky. After the dissolution was filed, Mother, with Child, and Father moved separately to Ohio. Neither the child nor the parents lived in Kentucky when the divorce decree was entered in 2009. Mother was awarded sole custody of Child, and Father was awarded visitation and ordered to pay child support. The parties’ continued to litigate post-decree issues related to child support, visitation and attorneys’ fees in the Family Court. In June 2010, Mother filed a motion to relocate and notified the family court that she wanted to move with Child to Abilene, Texas. Mother also filed a motion to modify Father’s visitation schedule to reflect the distance between the parties. The Family Court entered an order granting the motion to relocate and amending the visitation schedule.

Father filed a motion to reconsider the court’s ruling based on a lack of jurisdiction, arguing that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family Court denied the motion, stating that there was substantial information available in Kentucky regarding the child’s care, protection, training and personal relationships, and Father waived the issue by not raising it until the motion to reconsider.

Father appealed, arguing that the Family Court lacked subject matter jurisdiction to modify the original child custody determination under the UCCJEA because there was no exclusive, continuing jurisdiction because neither the parents nor the child lived in Kentucky.

ANALYSIS:

The UCCJEA, codified in Kentucky law, governs disputes concerning the state’s jurisdiction to decide child custody and visitation matters. The Family Court’s jurisdiction to modify a custody arrangement is determined at the time the motion to modify is filed. The Family Court misinterpreted KRS 403.824(1) because the court no longer had exclusive, continuing jurisdiction over the custody matter. A family court’s jurisdiction is exclusive and continuing until one of two circumstances has occurred: neither the child nor a parent of the child has a significant connection with the state and substantial evidence regarding the child is lacking or neither the child nor the parents of the child reside in that state. Therefore, unless a modification of custody has been filed, the state loses exclusive, continuing jurisdiction when the parents, persons acting as parents (if applicable), and child have all physically left the state to live elsewhere. Even if a significant connection existed and if certain evidence was available about the child in Kentucky, the relocation of both parents and the child outside of Kentucky before the filing of the modification divested the Family Court of exclusive, continuing jurisdiction.

Reversed and remanded. 

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

 

 

Role of Guardian ad Litem, modification of custody, Case digest, Ky Court of Appeals, Morgan v. Getter

Morgan v. Getter, 2012-CA-000655-ME

Published:Affirming

County: Campbell

Ex-Wife appealed Family Court’s order granting Ex-Husband’s motion requesting that minor child relocate to reside with him in Florida.

Facts:

Husband and Wife with two children from the marriage divorced in 2003. Ex-Wife had sole custody of the children, and Ex-Husband visited the children periodically with supervised visitation. When the oldest child reached the age of majority, she moved to Florida to attend college near Ex-Husband. Ex-Husband filed a motion for the younger daughter to reside with him in Florida. The Family Court appointed a guardian ad litem (GAL) to represent the child. The GAL filed a report with the court, and the court held a hearing, later ordering that the child could relocate to Florida and live with Ex-Husband. Ex-Wife appealed.

Ex-Wife argued that the court erred when it did not allow her to call the GAL as a witness and denied her request to strike the GAL’s report. Ex-Wife also argued that the court did not follow the law governing a change of custody and improperly determined that the relocation was in the child’s best interest. 

Analysis:

The Kentucky Family Rule[s] of Practice and Procedure provide that a GAL may be appointed by the court, but the rules specifically differentiates between GALs and other professionals who may be used in a custody proceeding. The GAL in this case was appointed to represent the child. The GAL was a licensed attorney, and would have violated the ethical rules governing confidential communications and acting as an advocate when the lawyer is likely to be a witness. Although Kentucky law does not specifically define the role of a GAL in custody proceedings, the Family Court properly denied the GAL’s testimony due to the ethical concerns presented.

The court also properly denied Ex-Wife’s motion to strike the GAL report. The court appointed the GAL to counsel the court in formulating a decision. The court has considerable discretion in this area, and it would have been a waste of resources to disregard the report. Because of the inherent conflict and potential for prejudice created by the ambiguity in the statute, the proper role for a GAL in child custody issues should be scrutinized by the General Assembly or Supreme Court. A review of the law in other jurisdictions regarding the role of GALs in custody proceedings did not yield consistent results. Some states prohibit a GAL from testifying, while other states have statutes explicitly stating the role of the GAL and the GAL report and under what circumstances a GAL can be called as a witness and cross-examined. Nevertheless, in this case, the testimony of the witnesses at the custody hearing was thorough and was relied upon more than the GAL report in the court’s decision. Any error from allowing the GAL report to be considered was harmless.

KRS 403.340(3) provides that a court must not change a prior custody determination, unless there is a change in the circumstances of the child or the custodian, and the modification is in the best interests of the child. The Family Court found that Ex-Husband had increased his visitation, that the older sister had moved away from the home to live with Ex-Husband, and the relationship between Ex-Wife and the child had deteriorated. The relocation was in the child’s best interest because Ex-Wife, Ex-Husband, the older sister, and the child all testified at the hearing, and each of Ex-Wife’s concerns about the relocation were addressed in the court’s order. Overall, the court accepted the child’s explanation of the toxic relationship that had developed between her and her mother.

Judge Denise Clayton wrote separately, concurring with the result. Judge Clayton stated that it was improper to admit the GAL’s report because the GAL was the child’s legal representative. The court reached the correct result, but the parties should have never been in the position where the child’s legal representative was also serving as an expert to the court.

Affirmed.

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

Digest of Shafizadeh, multiple issues, Ky Court of Appeals

Shafizadeh v. Shafizadeh, 2010-CA-000758-MR

Issue:  jurisdiction, findings of fact, imputation of income, attorney fees, modification of child custody and timesharing, garnishments, CR 60.02

Published:   Affirming in Part, Reversing in Part, and Remanding

County:  Jefferson

In three separate appeals, Ex-Husband appealed numerous orders of FC.

FACTS:

Parties were married for twenty-six years, and at time that Wife filed for dissolution, they had two minor children and two adult children.  Wife worked as a bank manager during the marriage but left that employment in 2005 to provide full-time care for the parties’ children.  Husband is a businessman and a licensed attorney. During the marriage, Husband incorporated three different businesses, including his law firm.  In 2007, his income from the businesses was $40,000.  The parties entered a Marital Settlement Agreement dividing these assets, and Husband was required to make a cash equalization payment to Wife as a result.  They also entered a custody agreement in which they shared joint custody and a parenting schedule.  A trial was held on child support, maintenance, and division of the remaining marital property.  FC divided the value of the remaining marital assets equally between the parties, restored two nonmarital assets to Wife, and allocated debt.  FC also awarded Wife $750 “open-ended” monthly maintenance and attorney’s fees of $6,412.  Lastly, FC concluded Husband was voluntarily under-employed, imputed earnings to him of $60,000 per year, and set child support at $859 per month. 

ISSUES AND ANALYSIS:

Jurisdiction: 

Before FC issued its opinion, Husband filed petition to disqualify judge.  FC subsequently entered its opinion, and SC later denied Husband’s petition.  Husband claimed because petition for disqualification was pending when FC issued its opinion, FC had no jurisdiction at that time.  CA held that while petition was pending, FC lacked jurisdiction over the particular case (but not subject matter jurisdiction), rendering FC’s opinion premature, and voidable, depending on the outcome of SC’s opinion.  As SC denied the petition, the opinion and order was given full force and effect. 

Dissipation and Request for Findings of Fact:

Husband claimed FC failed to consider and issue findings regarding funds Wife spent on Christmas gifts, in loans to relatives, and for household expenses and maintenance.  Wife contended FC adequately addressed all issues in its order, and even if not, Husband failed to address this complaint in his Motion to Alter, Amend or Vacate.  CA agreed with Wife that because Husband failed to raise the issue in his CR 59 motion, he could not raise it on appeal. 

Maintenance:

Husband claimed that because Wife received $529,301 in marital assets plus her nonmarital assets, she did not lack sufficient property to provide for her reasonable needs; furthermore, he claimed that she is able to support herself through reasonable employment; therefore, she should not be awarded maintenance.  CA found FC’s findings were supported by substantial evidence regarding the entitlement to and the amount of maintenance, but agreed with Husband that FC erred in awarding  “open-ended” maintenance, holding that such an award thwarts the goal of severing all ties between the parties.  This issue was remanded to FC.

Child Support and Imputation of Income:

FC found that Husband operated businesses that do not appear to make a profit and that he earned more than was reflected on his tax returns, and also took note of his earning capacity as an attorney.  Husband claimed that FC erred by basing its opinion on the business’ profitability in the past.  Wife countered that Husband chose not to use his skills and education and concentrated his efforts on non-profitable businesses and chose not to accept legal clients.  CA held that although Husband’s businesses may not be currently profitable due to the economy, he was not fully using his entrepreneurial and business skills and could earn more in the legal industry. 

Attorney Fees:

Husband claimed no imbalance of financial resources existed to support attorney fee award.  CA disagreed, noting difference in incomes and distribution of debt. 

Modification of Child Custody and Timesharing:

1. Wife sought to relocate to Louisiana with minor children and filed Motion to modify parenting time schedule.  FC granted Wife’s motion.  Husband filed writ petition with SC claiming Wife’s motion was actually motion for change of custody that lacked requisite affidavits, relying on Brockman v. Craig, though SC overruled Brockman to the extent it was inconsistent with Pennington.  SC rejected Husband’s writ and CA did as well. 

2.  Husband filed motion to modify joint custody or, alternatively, modify time-sharing, while Wife’s motion regarding relocation was pending.  Attached to Husband’s motion were 4 affidavits and 2 declarations.  FC denied his motion, finding that it was filed in less than 2 years from the original order and was missing the requisite 2 affidavits.  CA held that declarations could not meet the affidavit requirement because they were not sworn testimony.  CA held that FC erred in dismissing the motion for lack of jurisdiction, however, as at least 2 affidavits were submitted.  CA directed FC, on remand, to determine whether affidavits state sufficient facts to justify a hearing on the motion. 

Garnishments:

Wife sought garnishments for attorney fee award.  Husband claimed his bank account could not be garnished because it held only his wages.  CA disagreed, holding there is no statutory protection for wages placed in the debtor’s control/possession.  Husband also requested and was denied sanctions and attorney fees because his social security number was included on the garnishment orders.  CA held this decision was within FC’s wide discretion, and FC did not abuse such discretion.  Lastly, as Husband filed his motion pro se, there were no attorney fees to recoup. 

CR 60.02:

Husband filed CR 60.02 motion to correct attorney fee award, claiming $945 of the award was incurred by Wife’s attorney in responding to Husband’s EPO appeal, in which CA did not grant Wife’s request for sanctions; therefore, Husband claimed, FC could not award attorney fees to Wife related to that appeal.  CA noted that a chief factor guiding the grant of CR 60.02 relief is the moving party’s inability to present his claim prior to the entry of the order sought to be set aside.  CA held that Husband could have and should have raised this issue in his direct appeal of the order awarding attorney fees. 

Affirmed in Part, Reversed in Part, and Remanded.

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

Defacto Custodian Case Digest, Spreacker v. Vaughn, el al, Ky Court of Appeals

Spreacker v. Vaughn, et al

No. 2011-CA-002011-ME

Published:   Opinion Affirming  

County:  Greenup

Sandra Spreacker appeals from an order of Greenup Family Court which determined that Denise Vaughn, the paternal Great-Aunt of the minor child (B.C.), to be the de facto custodian of that child.

In July, 2010 while baby-sitting B.C., Vaughn noticed severe diaper rash.  She contacted Spreacker who requested that B.C. be returned home the next day.  The next day, however, Spreacker was arrested.  The child’s father was already incarcerated.  Although Vaughn had physical custody, she did not have legal custody, so she filed a petition for juvenile dependency, neglect, and abuse in Boyd County.

On July 7, 2010, Boyd District Court granted emergency custody to Vaughn and granted her custody after a temporary removal hearing on July 12.  On July 27, Vaughn amended her petition to allege B.C. was medically neglected.  After an adjudication hearing on September 14 during which B.C.’s parents admitted to neglect, the court ordered B.C. to remain in Vaughn’s custody.

On January 3, 2011, Vaughn filed a petition for custody in Greenup, her home county.  At a hearing on May 3, 2011, the Greenup Family Court found that Vaughn was a de facto custodian and awarded her custody of B.C.  This appeal followed.

The Greenup Family Court found that B.C. continuously resided with Vaughn who made sure the child received all necessary medical procedures and Vaughn was the primary financial supporter.  B.C. had a Kentucky medical card before custody was awarded to Vaughn and received money from Kinship Care which merely covered daycare expenses.  Spreacker argues that Vaughn was not the primary financial support because of these benefits.  The Court of Appeals disagreed and said the government benefits only supplemented what Vaughn provided and the benefits did not supplant the primary support of the child.

The Court of Appeals distinguished this case from those involving foster parents, who receive support from the Cabinet.  B.C. was never in the custody of the Cabinet and Vaughn is not a foster parent.  KRS 403.270 requires a de facto custodian to serve as the “primary” – not the “sole” caregiver and financial supporter.

The Court of Appeals found that because the child is under the age of three and was never “placed” by the Cabinet, the statutory criteria was satisfied.  Moreover, the CA held that because Spreacker did not commence a separate action to regain custody, she did not toll the calculation of the statutory time for establishing a de facto custodian.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Standing to Pursue Child Custody- Same Sex Couples- Truman v. Lillard digest, Ky Court of Appeals

Truman v. Lillard, 2012-CA-000160-ME

Published:   Affirming   

County:  Fayette

Former life-partner of Child’s adoptive mother appealed from FC’s denial of her motion for joint custody, visitation and to set child support due to lack of standing.       

FACTS:

Truman and Lillard were in a marriage-like relationship for four years prior to Lillard obtaining temporary guardianship of her six-month-old nephew, Thomas.  Truman and Lillard had discussed plans to start a family, but at that time were waiting to do so as they were both full-time students.  However, because Thomas was her nephew and needed a healthy home, Lillard began the adoption process, which was finalized in 2008.  The couple was aware that they could not legally jointly adopt Thomas in Kentucky.  Although Truman assisted in raising Thomas as one of his “Mommies”, no steps were taken to establish parenting rights for her.  In February 2010, the couple broke up and Truman left the Mississippi home she shared with Lillard and Thomas.  After a domestic dispute in which Truman attempted to take Thomas, Lillard moved to Lexington with Thomas, obtained a restraining order against Truman, refused further communications from her,  and refused to allow her to spend any time with Thomas.  Truman filed a petition for joint custody and visitation and volunteered to pay child support.  In October 2010, the parties agreed to a visitation order.  Lillard subsequently relocated again, to Bowling Green, and sought a transfer of the case to Warren FC based on her new address, which was denied.  In November 2010, Fayette FC held a hearing based on whether Lillard had waived her superior right to custody pursuant to Mullins v. Picklesimer.  FC orally found she had not, though no written orders were entered.  In August 2011, Truman petitioned the court for a status hearing and for written orders on the waiver issue.  FC did so, finding Lillard had not waived her superior right and that Truman had no custodial rights, and denied Truman’s request for visitation and for a new trial.  Truman appealed, arguing that FC erred by:  1.  Failing to transfer the matter to Warren FC; 2.  Failing to make sufficient findings of fact on visitation; 3.  Incorrectly relying on Picklesimer regarding visitation; and 4.  Entering findings of fact not supported by the evidence. 

ANALYSIS:

CA disagreed with all of Truman’s contentions.  First, Truman’s argument regarding transfer to Warren FC was completely inconsistent with her actions in Fayette FC, and CA held she was judicially estopped from challenging FC’s action which was consistent with her requested relief. 

Regarding the sufficiency of findings on visitation, CA held that FC did make findings in this regard and that FC is not required to address every piece of evidence or argument by counsel for findings to be sufficient.  So long as FC’s findings reflect a good faith effort at fact-finding and complies with CR 52.01, the findings will be sufficient.  CA found that FC’s findings did so and were sufficient.

Next, CA addressed whether FC should have relied on Picklesimer on the visitation issue or if it should have applied the in loco parentis doctrine.  CA noted that this reliance was appropriate and that the in loco parentis doctrine has been replaced by the de facto custodian statute; thus, non-parents may attain standing to seek custody or visitation of a child only if they qualify as de facto custodians, if the legal parent has waived her superior right to custody, or if the parent is unfit. 

Lastly, CA disagreed with Truman’s contention that the findings of fact relative to custody were not supported by the evidence.  CA held, “Although we appreciate the substantial and significant relationship Truman had with Thomas, she was not his parent, she could not qualify as a de facto custodian, and he resided with his only parent, Lillard. … This case serves as an illustration of the exception to Mullins, where we distinguish a non-parent truly acting in the capacity as a parent from the many people who may love, care for and support a child . . . . Not every person who genuinely loves and cares for a child gains custodial rights; waiver requires significantly more. There was no error.

Affirmed.

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

Waiver of Superior Right to Child Custody, Johnson v. Overbee digest, Ky Court of Appeals

Johnson v. Overbee, 2011-CA-002097-ME

Published:   Affirming   

County:  Lee

Biological parents appealed FC’s ruling denying their petition for custody of Child.      

FACTS:

Child of Biological Mother and Father tested positive at birth for multiple illicit drugs, and Cabinet filed and was granted a petition for emergency custody.  After one and a half month removal, Biological Parents regained custody of Child.  Four months later, Biological Mother shot Child in abdomen while attempting to shoot Biological father—Biological Father had held Child in front of his body as a shield and Biological Mother shot anyway.  Cabinet was again granted emergency custody, but this time placed Child with Biological Mother’s Cousin and her husband.  FC ultimately conducted adjudication hearing and granted permanent custody of Child to Cousin and her husband.  Biological Parents were present at the hearing and represented by counsel, and made no objection to the award of custody, nor did they appeal that award.  Almost two years later, Biological Parents filed a petition for custody of Child.  FC issued an Order on that petition almost four years later, in which it determined that Biological Parents had waived their superior right to custody of Child, and that it was in Child’s best interests to remain in custody of Cousin and Husband.  Biological parents filed this appeal.      

ANALYSIS:

CA noted that while biological parents have a superior right to custody of their children, a third party may acquire standing to obtain custody of a child if the biological parent is unfit or if the biological parent waived his or her superior right to custody.  For the waiver to be effective, the biological parent must have intended to voluntarily and indefinitely relinquish custody of the child.  CA found that Biological Parents did just that at the adjudication hearing, and their failure to file an appeal further evidenced that intent, demonstrating by clear and convincing evidence that Biological Parents waived their superior right to custody of Child.  CA noted that there also appeared to be substantial evidence of Biological Parents’ unfitness, but such a finding was rendered moot by the finding regarding waiver.

Affirmed.

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

Maxwell v. Maxwell, Ky Court of Appeals, Child Custody, Lesbian Mother

Maxwell v. Maxwell

No. 2012-CA-000224-ME

Published:  Opinion Reversing and Remanding

County:     Hardin

Angela Maxwell appeals the decision of the Hardin Family Court to award sole custody of her three children to their father, Robert Maxwell.

The parties were married in October, 1994 and three children were born to the marriage.  The parties separated in September, 2010 and Robert filed the petition for dissolution and moved for sole custody of the children.  Angela responded to the petition and asked for joint and shared custody.

In October, 2010, the parties entered into a “pre-temporary” agreed order providing for joint custody and alternating physical custody on a week-to-week basis.  The order also prohibited a non-family guest to stay overnight when the parent had physical custody of the children.

In March, 2011, a mutual restraining order was issued after motions were filed by both parties.  A settlement agreement was entered in January, 2011, reserving child-related issues.  A hearing on those matters was held in September, 2011. Robert requested joint custody and designation as primary residential custodian.  Angela requested joint custody pursuant to the current arrangement and that the prohibition on non-family guests spending the night during parenting time be lifted.

Witnesses included relatives, a teacher, a soccer coach, and the two older children.  The children were happy with the parenting time arrangement and both said they liked Angela’s friend, Angel.

The trial court’s order was entered January 5, 2012 awarding Robert sole custody with Angela’s visitation schedule set by the court.    The allotted parenting time was less than the minimum guidelines in the local rules.  Both parties were prohibited from cohabitating with another adult during the time they had physical possession of the children, unless they were married to that person.

The standard of review is whether the trial court’s factual findings are clearly erroneous.  The reviewing court determines whether the trial court applied the current law and whether the trial court abused its discretion.

Angela argued the family court erred by 1) considering factors unrelated to the best interests of the children, 2) the award of sole custody to Robert was erroneous and an abuse of discretion, 3) the court based its decision on inadmissible evidence, and 4) it was error to restrict the parties from cohabitating during parenting time. Robert countered that the court’s ruling was not made on Angela’s sexual orientation, was not an abuse of discretion, and was based on the best interests of the children in accordance with statutory factors.

The Court of Appeals applied the facts of the case to the statutory factors listed in KRS 403.270(2).  The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children.  The Court of Appeals held that being a member of a same-sex partnership alone does not meet the criterion of sexual misconduct and to use her sexual orientation as a determinative factor violates Angela’s right to due process, equal protection and fundamental right to parent her children.  The trial court found that Angela’s relationship was not in the best interests of the children, but provided no factual findings in support.  Harm must have an evidentiary basis and cannot be assumed.

The issue of restricting the parties from cohabitating with a person to whom they are not married was to be retried on remand with the understanding that cohabitation of any party is a factor, but not dispositive on its own.  The family court’s decision should be based on the best interests of the children.

The order of the Hardin Circuit Court is reversed and remanded for proceedings consistent with the opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

 

B.L.M. and B.A.M. v. A.M., L.M., L.S.M., et al, Ky Court of Appeals, Sibling Visitation Following Adoption

B.L.M. and B.A.M. v. A.M., L.M., L.S.M., et al

No. 2011-CA-000333-ME

Published: Opinion Reversing and Remanding

County: Jefferson

Appellants appeal from the Jefferson Circuit Court’s denial of a CR 60.02 motion to set aside an order in an adoption case requiring visitation between adopted children and their biological siblings.

In 2007, A.M., L.M., and L.S.M. were placed in Appellants’ foster care by the Cabinet for Health and Family Services.  Parental rights to the children had been terminated by judgments entered earlier that year.  The children have three older biological siblings who were not placed with Appellants.

In January, 2009, Appellants filed petitions for adoption of all three children.  At a hearing, the GAL and the family court opined that the adoption was in the best interest of the children so long as Appellants agreed to reasonable visitation with their biological siblings.  The family court granted the adoption petitions and entered into the record a statement from Appellants agreeing to siblings visitation after the adoption and a notation that violation is punishable by contempt.

 In June, 2010, the GAL filed a motion to hold Appellants in contempt for violating the sibling visitation order.  When family court scheduled a contempt hearing, Appellants filed a CR 60.02 motion to set aside the visitation order arguing that family court exceeded its jurisdiction in entering and attempting to enforce the order.  When family court passed the motion to the contempt hearing, Appellants filed a petition for a writ of prohibition and a motion for emergency relief in the Court of Appeals.  Both were denied on the basis that extraordinary relief was not required because the parties had a remedy by appeal from the contempt hearing.  No ruling was made concerning the validity of the visitation agreement.  When the family court denied Appellants’ CR 60.02 motion, this appeal followed.

KRS 405.021 provides that grandparent visitation, if already established by court order, could be enforced even after the termination of parental rights.  Our legislature has not provided for visitation by family members except grandparents following such termination.

In this case, once the judgment of adoptions was entered, there were no legal ties between A.M., L.M., and L.S.M. and their biological siblings.  The Appellants, as the adoptive parents, could have allowed sibling visitation but to judicially require such visitation in the absence of any statutory authority contravenes the legislative intent and Kentucky law.

Therefore, Jefferson Family Court lacked authority to order sibling visitation and Appellants were entitled to CR 60.02 relief.  The Order was vacated and remanded to family court for any additional action required.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Wethington v. Coffey, Ky COA, Standing to Pursue Child Custody

Wethington v. Coffey, 2011-CA-000555-ME

Published:   Vacating and Remanding   

County:  Green

Father appealed FC’s order awarding joint custody of his children along with the children’s deceased mother’s nephew and wife, contending that deceased mother’s nephew and wife did not have standing to pursue custody. 

FACTS:

Father and Mother shared joint custody of twins after divorce, with Mother providing twins’ primary residence and Father receiving standard visitation schedule.  Three years’ later, Father’s visitation was suspended following a social services investigation alleging he had abused his minor daughter (the twins’ half-sister).  Father later received visitation once again, but for minimal periods of time.  However, he consistently failed to exercise the time he was given and had very little involvement in the twins’ lives over the next six years while Mother was still alive.  Meanwhile, Mother’s nephew, his wife and their children, who were approximately the same age as the twins, spent substantial amounts of time with them during the same time period. 

The day that Mother died, Nephew and Wife filed petition for emergency custody, indicating in the Petition that Father’s whereabouts were not known.  FC granted them emergency custody and two days later, they were granted temporary custody after a temporary removal hearing.  They filed for permanent custody a few weeks later.  After another temporary custody hearing a few months later, the parties agreed that Father would have visitation with children 4 days a week for the next 2 months.  Father again neglected to exercise his visitation.  FC drastically limited visitation again but Father still did not exercise all time that was allotted to him.  After final hearing, FC found Nephew and Wife had standing pursuant to KRS 403.822(1)(b)1 and KRS 403.800(13); that Father should not have custody because he had inflicted emotional harm on the twins, exhibited moral delinquency, and had abandoned the twins; and that Nephew and Wife should share joint custody with Father but Nephew and Wife would provide primary residence for twins with Father receiving the same drastically limited visitation.  Father appealed.

ANALYSIS:

CA agreed with Father that Nephew and Wife did not have standing to pursue custody action.  While CA agreed that KRS 403.822 was appropriately relied upon by FC in its analysis of standing in this case, FC misinterpreted and misapplied KRS 403.800(13), which defines “a person acting as a parent” who might have standing under KRS 403.822.  Such a person must have legal custody or claim a right to legal custody AND have or have had physical custody of the child for six months of the year preceding the custody action.  Here, Nephew and Wife had custody for less than a month prior to filing their petition.  CA disagreed with Nephew and Wife’s interpretation that the six month limitation should only be imposed on parties who no longer have physical custody, and thus did not apply to them as the custodians at the time of filing.  CA, on a matter of first impression, found that the six month requirement applies to any party seeking custody, regardless of the current physical custody status.  Thus, Nephew and Wife did not have standing to pursue custody of twins.

Vacated and Remanded.

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

Hempel v. Hempel, Ky COA, Parenting Time, Imputed Income, Property Division

Hempel v. Hempel, 2011-CA-000763-MR

Published:   Affirming in Part, Vacating in Part, and Remanding   

County:  Oldham

Ex-Husband appealed FC’s order, contending that FC erred by imputing income to him for child support purposes, by arbitrarily reducing his parenting time, and by making an unequal division of the marital estate. 

Parenting Time:

CA agreed with Ex-Husband that there was no substantial evidence to support FC’s finding that he had not regularly exercised the parenting time allotted to him before trial, and that evidence clearly showed that he saw children on an almost daily basis.  CA held that FC clearly erred on this issue and remanded for further consideration of the issue.

Child Support:

CA agreed with Ex-Husband that as there was no evidence introduced to show the strength or nature of prevailing job opportunities or the expected earnings levels in the community, and as FC gave no explanation as to how it determined that Ex-Husband could be expected to earn at the same level as Ex-Wife, there were inadequate findings for CA to conduct meaningful review of the decision and the issue was remanded to FC for further findings. 

Division of Marital Estate:

CA did not agree with Ex-Husband that FC erred by not giving him equal share of marital estate.  CA found no evidence that FC considered any factors other than statutory criteria and that FC did not abuse its discretion in the division. 

UGMA accounts:

CA did not agree with Ex-Husband that FC erred by failing to permit him to oversee the Uniform Gifts to Minors Act accounts of the children.  CA noted that under statutory provisions, Ex-Wife as monitor of the accounts must keep records available for inspection and that Ex-Husband was permitted to inspect the account. 

Affirmed in Part, Vacated in Part, and Remanded.

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

S.S. v. Commonwealth, Ky COA, Standing as De Facto Custodian

S.S. v. Commonwealth, 2011-CA-001790-ME

Published:   Affirming  

County:  Jefferson

Child, through GAL, appealed FC ruling that her Great-Grandmother had standing to intervene in suit as de facto custodian, arguing that she did not meet the requirements for de facto custodian status under KRS 403.270.

FACTS:

At age 2, Child was removed from Mother and placed in temporary custody of Great-Grandmother pursuant to dependency petition.  Two years and five months later, Child was returned to Mother’s care; but eight months after that, Child was removed from Mother’s care again and placed in concurrent planning foster home.  Great-Grandmother filed motion to intervene in order to be considered for Child’s placement or to have visitation with Child.  After hearing, FC granted Great-Grandmother de facto custodian status and granted her visitation.  GAL filed motion to reconsider, arguing that Great-Grandmother had relied upon an unpublished case to establish that the lapse in time of her care of Child did not disqualify her as de facto custodian and further arguing that Great-Grandmother could not rely on her husband’s salary as her own income for purposes of meeting the statute.  FC disagreed on both fronts and denied the motion to reconsider.  On appeal, Child through GAL argues that Great-Grandmother cannot qualify as de facto custodian because she is not Child’s primary financial supporter; Child also argues that termination proceedings are scheduled and the standing order of visitation will inhibit Child’s potential for adoption.

ANALYSIS:

There is no authority holding that a de facto custodian cannot be credited with financial support which is provided by the government through government benefits, such as Great-Grandmother’s receipt of social security and social security insurance, or from their spouse’s income, merely because such monies were not earned directly through employment.  Such a result would disqualify stay-at-home spouses, retirees, elderly social security recipients, and poor and disabled recipients of government benefits.  CA held this was not the intent of the legislature.  CA acknowledged and sympathized with the fact that Great-Grandmother’s visitation order, which would continue on past an adoption, might inhibit Child’s prospects for adoption; but without a legal precedent warranting reversal, it has no bearing on Great-Grandmother’s status as de facto custodian. 

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

Samson v. Samson, Ky COA, Child Relocation

Samson v. Samson, 2011-CA-002181-ME

Published:   Affirming  

County:  Fayette

Father appeals order granting Mother leave to relocate with Child to Washington State, contending such an Order is not in Child’s best interests.

FACTS:

After marrying in Texas in May 2009, Couple moved to Kentucky and had their only Child there.  Both Mother and Father have substance abuse issues and bipolar disorder.  Multiple EPO’s were taken out, 2 with Dad as Petitioner and 1 with Mom as Petitioner.  In May 2011, Father’s time-sharing with Child was terminated due to positive drug test, but it was re-established in September 2011.  In November 2011, they divorced and Mother was granted sole custody of Child.  FC ordered a time-sharing evaluation from social worker and the report was incorporated with FC’s order allowing Mother to relocate with Child. 

ANALYSIS:

Father argued that social worker’s opinions must be limited because they cannot be related to psychological analysis or credibility of the witnesses and that she acted only as a conduit for the introduction of hearsay testimony.  CA held first that the social worker was qualified to give the testimony she did, but that, more importantly, her opinion was only a fraction of the evidence relied upon by FC in granting the relocation request.  FC relied upon the testimony of family and friends that, among other things, Mother has no connections to Fayette County; that during their time together, Mother and Father moved repeatedly and there was no real connection to Fayette County for Father either; that neither party has an income; and that both parties have ongoing mental and emotional health issues.  CA also held that these facts demonstrated it was in Child’s best interests to relocate with Mother. 

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

Williams v. Frymire, Ky COA, Modification of Custody, Jurisdiction

Linda Williams v. David Frymire

No. 2011-CA-001568-ME

Published: Opinion Affirming

County: Calloway

Linda Williams has appealed from judgment of Calloway Family Court modifying custody of the parties’ minor daughter, Jessica Frymire, from sole to joint and naming Linda’s former husband and Jessica’s father, David Frymire, as the primary residential parent.  Linda contends the court did not have jurisdiction to consider David’s motion to modify, and if the forum was appropriate, abused its discretion in modifying the primary residential parent.

The parties were married twice; first from 1992 to 1996 and a second marriage which occurred in 2000.  Jessica was born in 2005.  In 2006 Linda filed a petition in Fayette County to dissolve the marriage.  David failed to appear at the final hearing regarding custody of Jessica and Linda was awarded sole custody and child support.  The final decree was entered in January, 2007.  When Linda moved to Woodford County in November, 2007, she moved to transfer the matter to Woodford County.  In July, 2010, she moved to change the venue again, this time to Calloway County.  Linda and Jessica moved to Missouri, but David remained in Calloway County.

In January, 2011, David filed a motion in Calloway Family Court requesting modification of custody or timesharing, for modification of child support, and restricted visitation.  The basis for David’s motion was an email from Linda announcing that five-year-old Jessica was transgender and would from that time on be considered a boy, wear boy’s clothing, and be called Bridge.  Linda would not listen to any challenge regarding this decision.  David’s motion notified the court that Linda had previously raised unfounded concerns about Jessica’s vision, hearing, and speech and her suspicions that Jessica had Asperger’s Syndrome.  David requested appointment of a child psychologist and a custodial evaluation, which the court granted.

The trial court concluded that Kentucky retained exclusive and continuing jurisdiction pursuant to statute because David was a Kentucky resident and that Kentucky was not an inconvenient forum.  A modification hearing was held on August 3 and 4, 2011.

David testified that Linda has bipolar disorder and her belief that Jessica is transgender developed after she viewed a television special on the topic.  David’s sister, Betsy Porter, and his mother, Phyllis Frymire, both testified that Jessica played like a girl, but conceded that she was not a “frilly” girl.  David’s father and his girlfriend both testified that they did not believe there was a gender issue.

Dr. Sarah Shelton, a clinical psychologist appointed by the court to perform a forensic custodial evaluation of parents and child, found no support for the diagnosis of gender identity disorder, and that Jessica should be treated with gender neutrality.  She recommended a change in custody.  Dr. Dale Owens, a child clinical psychologist, performed an independent evaluation of Jessica’s medical records and found that only Dr. Shelton’s reports were objective and thorough.

Dr. Patricia Berne, Jessica’s treating psychologist, recommended affirming Jessica’s gender choice.  She admitted she did not perform any psychological tests and was confident in diagnosing gender identity disorder, because in her opinion, gender is innate.  Dr. Robin Park, a psychologist, testified at the request of the court.  After meeting with Linda, Dr. Park was concerned about possible sexual abuse and referred Linda to Holly Carson to evaluate possible abuse.  Linda began cancelling appointments with Dr. Park who then made a hotline call to report suspected sexual abuse and neglect.

Trina Jansen, a licensed counselor and Jessica’s art therapist, testified that she diagnosed Jessica with gender identity disorder after the first visit.  Lacking experience with this disorder, she referred Linda to Dr. Berne.  After internet research and reading books, she felt qualified to write an opinion letter recommending affirmation of Jessica’s gender identity as a boy.

Linda testified about her difficulty dealing with the diagnosis of gender identity disorder and trying to follow the recommendations of the medical providers.

Linda asked Dr. Dean Rosen, a licensed clinical psychologist, for a second opinion.  He concurred in the finding of gender identity disorder, but admitted he did not contact David or any of his family members for input.  Clay Williams, Linda’s father, testified that Linda was following the providers’ recommendations.  Rhonda Diaz, who works at a childcare center in Calloway County that Jessica once attended, was called by David on rebuttal.

At the closing of the hearing, David requested sole custody, with visitation for Linda.  Linda requested joint custody with her being named as primary residential custodian.  The GAL also recommended joint custody with Linda remaining as the primary residential custodian.

In August, 2011 the court issued its findings of fact, conclusion, and judgment, holding that it was in Jessica’s best interest to modify custody from sole to joint with David designated as the residential parent and visitation to Linda.  The court did not dismiss the possibility that Jessica has or may have gender identity disorder but noted that girls can prefer male sports, toys, and clothes without being pathologized, requiring intervention.  Linda was also ordered to pay child support.  Linda then filed this appeal.

The Court of Appeals ruled that there were significant connections to Kentucky and substantial evidence in Kentucky for Kentucky to retain exclusive jurisdiction, after reviewing the factors in KRS 403.834(2), the Court of Appeals held that the trial court did not abuse its discretion in retaining jurisdiction.

The Court of Appeals also agreed that the family court’s decision to name David as the residential parent was not an abuse of discretion based on the evidence presented.  The Court made no judgment about the diagnosis of gender identity disorder, but noted that medical witnesses Linda presented did nothing to establish that Jessica was properly diagnosed or that Linda was receiving or following competent medical advice.  The Court stated that Linda’s behavior provided sufficient support for the decision that it would be in Jessica’s best interest to name David as the residential parent and no abuse of discretion was perceived.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Rice V. Rice, Ky Ct of Appeals, Modification of Child Custody

Rice v. Rice

No. 2011-CA-002162-ME

Published:  Opinion Affirming

County:     Bracken

Jennifer Rice appeals from the order of Bracken Circuit Court denying her motion to alter, amend or vacate its order adopting the report of the Domestic Relations Commissioner which designated Willard Rice, her former husband, primary residential custodian of their three minor children during the school year.  She argues that the trial court abused its discretion and that naming Willard primary custodian was palpable error and should be reversed.

When the parties were divorced in 2009, they agreed to grant temporary custody to Willard so the children could continue their homeschooling with Willard’s mother.  In their separation agreement, the parties specified that beginning in January, 2010 the parties would share joint custody.  The children would be homeschooled by the paternal grandmother when in Willard’s custody and by Jennifer when she had custody.

In October, 2010 Jennifer filed a motion for change of custody requesting that she be designated primary residential custodian and an order requiring children to attend public schools, alleging that test results revealed the children were not functioning at grade level.

A Guardian Ad Litem was appointed, who concluded both parents would be suitable as residential parents and recommended that Jennifer be the primary custodian because of the GAL’s belief that public school would be more beneficial.  After the GAL’s report, the parties agreed the children would attend public school regardless of which parent was named primary custodian. The Court referred the issue of custody to the Domestic Relations Commissioner.

The DRC determined that the children should live with Willard during the school year and spend 3 out of 4 weekends each month with Jennifer, allowing the children to remain in or near the home where they grew up and near the paternal grandparents who had been regular babysitters. Willard had a long-term job and stable home, while Jennifer was unemployed and had unstable living arrangements.

The Court entered an order confirming the DRC’s report.  Jennifer filed a motion to alter, amend or vacate the order alleging that the DRC’s findings and the GAL’s report supported her contention that it was in the best interest of the children for her to be designated primary residential parent.  Jennifer’s motion was denied, the order confirming the DRC’s report was reaffirmed and Jennifer filed this appeal.

Jennifer was not precluded from raising a palpable error claim on appeal pursuant to CR 61.02.  The Court of Appeals, however, disagreed that granting custody to Willard during the school year was palpable error that should be reversed.

With respect to Jennifer’s allegation of abuse of discretion, the Court of Appeals considered whether the trial judge’s findings were clearly erroneous or an abuse of discretion which “implied arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.”  Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)(citations omitted).

Jennifer claimed the trial court’s ruling gave the appearance of improperly favoring grandparents over parents.  Although the grandparents watched the children while Willard was working, it did not mean the court granted custody to the grandparents.  Modification of the custody agreement was not warranted on the basis of a work schedule.

The Court of Appeals considered the applicable factors in KRS 403.270(2) and held that the trial judge did not abuse his discretion by deferring to the DRC’s recommendations, even though Jennifer claimed the grandfather was in poor health and there was an active DVO against him related to corporal punishment of the children.

The Court of Appeals held that without clearly erroneous findings by the DRC, there was no palpable error or abuse of discretion by the trial court.  The trial court’s order denying Jennifer’s motion to alter, amend or vacate the DRC report is affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Kidd V. Combs, Ky Ct of Appeals, De Facto Custodian and Child Custody

Aaron K. Kidd v. James Combs

No. 2009-CA-002260-ME and 2009-CA-002299-ME

Published: Opinion Affirming

County: Perry

Aaron Kidd appealed from the Perry Circuit Court ruling related to the custody of his daughter, Jaiden.  The Court awarded joint custody to Kidd and Jaiden’s maternal great-grandparents, James and Irene Combs, designated the Combses as the primary residential custodians and ordered visitation for Kidd and Jaiden’s mother, Shannon Combs.  Kidd contests the Court’s designation of the Combses as de facto custodians and the custody ruling.

Aaron Kidd and Shannon Combs, Jaiden’s parents, never married, but began living together in Lexington in October 2001.  Jaiden was born in July, 2002.  In February, 2003, Aaron sustained a gunshot wound to the face in the line of duty as a police officer, in a confrontation in which Aaron shot and killed his attacker.  The ensuing controversy and safety concerns led Shannon to ask her grandparents (who had raised her) to take Jaiden to Hazard until Aaron recovered and the investigations were complete.  When Aaron returned to work as a police officer, Shannon was working and attending college, so they decided to leave Jaiden with the Combses until Shannon completed her education.   The parents visited the child in Hazard and the child visited them in Lexington.  When Aaron and Shannon broke up in 2006, a paternity test established that Aaron was Jaiden’s father.

Jaiden lived with the Combses from 2003 until 2007.  In 2006 it was determined that Jaiden needed dental care but Shannon was afraid to allow the required general anesthesia to be administered.  In 2007, Aaron took Jaiden to his own dentist, who performed the necessary extractions and fillings.

In July, 2007 Shannon filed a petition against Aaron for custody and child support and he filed a counterclaim seeking custody of Jaiden.  After a temporary custody hearing on August 3, 2007, the Court found the Combses to be de facto custodians and granted them temporary custody.  The Combses moved to intervene and for de facto custody.  The motion to intervene was granted, the petition was filed and a guardian ad litem was appointed for Jaiden.

A Domestic Relations Commissioner conducted a hearing in February, 2009.  The GAL recommended joint custody to the Combses and Aaron, and the DRC recommended sole custody to the Combses, with visitation to Aaron and Shannon.  The Court awarded joint custody to the Combses and Aaron with reasonable visitation for Shannon.  Aaron appealed the custody ruling and the Combses cross-appealed from the joint custody award, seeking sole custody of Jaiden.

During the pendency of the Appeal, Irene Combs died.  Aaron moved to remand this case to circuit court for consideration of his motion to modify custody because of the change in circumstances.  After an evidentiary hearing, James and Aaron were awarded joint custody, James continuing as primary residential custodian and visitation as previously ordered for Shannon and Aaron.  The case returned to the Court of Appeals to determine if the Combses were properly named as de facto custodians and joined as parties after the temporary custody hearing.

The Court of Appeals held that the circuit court had statutory authority to join the Combses as parties to the custody action and allow them to intervene and petition for custody once it found they met the requirements to be de facto custodians.  To determine if the Combses were properly named de facto custodians, the Court of Appeals explained that the meet this status, a person must have been the child’s primary caregiver and the primary financial supporter of the child.

The Court found that the Combses had been primary caregivers and financial supporters of Jaiden and provided her only real home in her first five years.  Aaron argued that a six-week period when he took Jaiden to his home broke the period of time required to qualify as a de facto custodian.  This was rejected by the Court because the Combses never agreed that Aaron was taking the child for more than a week’s visit.

The Court of Appeals held that the Circuit Court did not abuse its discretion in designating the Combses as de facto custodians and affirmed the 2009 custody award.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

N.L. v. W.F., Modification of Custody in a Dependency, Neglect and Abuse proceeding; Prematurity of Appeals and Finality of Orders

N.L. v. W.F., 2010-CA-001787-ME and 2011-CA-000091-ME

Published:   Reversing and Remanding

County:  Greenup

Mother appealed FC order awarding custody of children to children’s fathers.

FACTS:

Mother had two children from two separate fathers.  After altercation with her boyfriend, Cabinet filed petition dependency, neglect and abuse (DNA) petitions for both children.  Children were placed with Father 1’s parents after temporary removal hearing.  At disposition hearing, Child 1 was placed with his father and Child 2 was placed with Father 1’s parents but Father 2 was allowed to take Child 2 with him to his home in Florida.  FC then scheduled a permanent custody hearing.  At permanent custody hearing, Mother asserted that permanent custody hearing could not be held as neither Father had filed a Motion for Permanent Custody.  FC disagreed and proceeded with the hearing, and evidence at the hearing reflected that Mother had history of alcohol and substance abuse but was making progress on Cabinet’s case plan.  Cabinet offered evidence regarding the Fathers’ criminal history and home environment.  At the hearing, each Father orally requested that he be awarded custody of his Child.  FC made oral finding, based upon preponderance of the evidence, that it was in Children’s best interests to be in custody of their Fathers with supervised visitation to Mother, citing Mother’s lifestyle involving drugs and alcohol, though recognizing she was currently doing well.  FC completed AOC-DNA-9 form for each child, reducing oral order to written form.  In Findings of Fact section, FC checked that it had considered several KRS 403.270 factors, but provided no additional specific findings in the provided space on the form.  Mother filed a timely CR 59.05 motion to alter, amend or vacate, asserting that FC could not modify custody on its own motion; that Cabinet was under duty to make reasonable efforts to return children; that FC ignored protective needs of Children given Fathers’ admitted criminal or substance abuse histories; and that FC failed to make written findings in support of custody determination.  FC issued order denying Mother’s motion but stated in the Order that it would issue subsequent written order with more detailed findings.  This order included no finality language.  Mother filed notice of appeal from the Order denying her motion to alter, amend or vacate.  FC subsequently issued its Order including detailed findings of fact, including another denial of Mother’s motion to alter, amend or vacate.  The findings included general statements regarding children’s relationships with their fathers and Father 2’s parents, existence of mother’s drug and alcohol problems, and recognition that Cabinet thought Fathers were appropriate and Guardian Ad Litem recommended placement with Fathers. 

ANALYSIS:

Issue 1:  Did Mother properly appeal from FC’s initial denial of motion to alter, amend or vacate?

            CA noted that, for an Order to be final and appealable, Rules require that an order must either adjudicate all rights of all parties in a proceeding or lower court must issue finding that there is no just reason for delay as to an order resolving only a portion of all the rights of all the parties in a proceeding, and that portion of all of the rights of all of the parties must be finally resolved.  As the initial order did not include this language of finality, then it must have adjudicated all the rights of all the parties in order to be final and appealable.  CA found that the Order was inherently interlocutory because of its stated intention to make more detailed findings of fact.  However, Mother’s notices of appeals should not be dismissed, but should relate forward to FC’s order containing more detailed findings, per CR 73.02.

Issue 2:  Did FC err by conducting a permanent custody hearing, as neither Father filed a motion requesting a change of custody?

            CA held that KRS Chapter 620 procedural structure does not preclude a permanent custody hearing and award of custody, so long as the proper procedures are followed, but such a determination is not required under this statute. 

Issue 3:  Did FC err by granting custody to Fathers?

            Mother’s Orders of custody were not in record, so CA could not address the possible procedural deficit in Fathers’ failures to file motion for modification of custody, as CA had no knowledge of validity or content of orders and whether FC had jurisdiction to modify them.  However, CA could rule as to propriety of FC’s ultimate decision to award custody.  Custody determination in KRS Chapter 620 proceeding must follow standards in KRS 403.270.  CA found that FC failed to sufficiently consider and make findings related to KRS 403.270 factors, as FC made no separate finding, apart from pre-printed portion of AOC form, that custody awards were in children’s best interests, nor did ruling take Mother’s progress case plan or Fathers’ past legal issues. 

Reversed and remanded to FC. 

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