Divorce Law Journal

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

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

 

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.

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

Groundbreaking Ky Guardian ad Litem Opinion from Ky Supreme Court Yesterday

Morgan v. Getter, et al. Digest to follow.