Opinion
NO. 2017-CA-000903-ME
07-06-2018
THOMAS JOSEPH LEACH APPELLANT v. LEA HEATWOLE APPELLEE
BRIEF FOR APPELLANT: Leroy A. Gilbert, Jr. Corbin, Kentucky BRIEF FOR APPELLEE: Marcia A. Smith Corbin, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 16-CI-00138 OPINION
VACATING AND REMANDING
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BEFORE: JONES, KRAMER, AND D. LAMBERT, JUDGES. JONES, JUDGE: This is a child custody appeal. The Whitley Circuit Court awarded Lea Heatwole sole custody of her minor child after determining the arrangement served the child's best interests. The child's father, Thomas Joseph Leach, challenges that determination. After review, we vacate and remand for additional consideration regarding Leach's request for joint custody.
I. BACKGROUND
Leach and Heatwole married in August 2012 and divorced by decree in January 2017. A custody dispute regarding their minor child dominated the dissolution proceedings. Leach first petitioned for custody in March 2016, two years after the former couple separated. A final hearing on the issue occurred a couple of weeks after the circuit court entered the divorce decree.
At the final custody hearing, Heatwole presented evidence that she filed a petition for an emergency protective order (EPO) against Leach at the time of separation. The EPO was apparently filed in Campbell County, Tennessee, where the parties lived before Heatwole took the child to Whitley County, Kentucky. Heatwole also called Terry Nelson, a clinical social worker and behavioral therapist, as a witness. Nelson testified he began counseling the child after Heatwole observed regressive behavior vis-à-vis toilet training and respecting others' physical boundaries. Nelson explained he initially thought the child had been sexually abused, but ultimately surmised that the child was acting out due to having overnight visitation with Leach. Nelson pointed out that Leach had not visited the child in the 29 months preceding the overnight visits.
Heatwole and the child live with Heatwole's mother.
When asked why he did not seek a court order to visit the child, Leach cited the EPO and his belief that he was required to reside in Kentucky for 24 months before filing a custody petition. Leach generally testified that his visits with the child had gone well. He claimed the child cries when leaving him and added that the child has a good overall relationship the members of his household. Leach also claimed Heatwole and her mother used drugs.
Following the hearing, the circuit court entered an order granting Heatwole sole custody and awarding Leach visitation. In the order, the circuit court did not accept Leach's explanation for not visiting the child for the 29-month period. Likewise, the circuit court rejected Leach's claims that Heatwole and her mother used drugs. The circuit court noted that Heatwole passed a hair follicle drug screen before explaining that Heatwole's mother offered credible testimony when she denied taking drugs.
Thereafter, Leach filed a timely motion to alter, amend or vacate. The circuit court denied the motion summarily. This appeal followed.
II. STANDARD OF REVIEW
Appellate courts review child custody awards for an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). Factual findings must be supported by substantial evidence, and the correct law must be applied. B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005). Due regard must also be given when the trial court assesses witness credibility. CR 52.01.
Kentucky Rules of Civil Procedure.
III. ANALYSIS
As an initial matter, it is vitally important to distinguish between the interrelated concepts that arise in cases regarding custody, timesharing, and visitation. Custody refers to decision-making. Pennington v. Marcum, 266 S.W.3d 759, 764 (Ky. 2008). Custody can either be shared/joint or sole. Timesharing or visitation refers to the time the child spends with either parent. Visitation is used to denote the time a non-custodial parent is given to spend with the children when the other parent has been awarded sole custody. Williams v. Williams, 526 S.W.3d 108, 111 n.4 (Ky. App. 2017). "'Time-sharing,' on the other hand, is a joint-custody term, as the non-residential parent is also a legal custodian." Id. The most "significant and unique aspect of full joint custody is that both parents possess the rights, privileges, and responsibilities associated with parenting and are expected to consult and participate equally in the child's upbringing." Pennington, 266 S.W.3d at 764. Equal timesharing is not a prerequisite for joint custody. Id. Furthermore, even in cases involving an award of joint custody, the trial court may designate one of the parents as the primary residential parent. This designation does not affect the decision-making authority of the non-residential parent. Shafizadeh v. Bowles, 366 S.W.3d 373, 376 (Ky. 2011).
However, our Supreme Court has noted that there are various subsets of joint custody whereby the parties exercise varying degrees of responsibility:
In shared custody, both parents have legal custody that is subject to some limitations delineated by agreement or court order. Unlike full joint custody, time sharing is not necessarily flexible and frequently mirrors a typical sole custody pattern where the child may live with one parent during the week and reside with the other on alternate weekends. The weekend parent does not have "visitation," a sole-custody term which is frequently misused in this context, but rather has "time-sharing," as he or she is also a legal custodian. However, in practice, the terms visitation and timesharing are used interchangeably. Additionally, one parent may be designated the "primary residential parent," a term that is commonly used to denote that the child primarily lives in one parent's home and identifies it as his home versus "Dad's/Mom's house." This concept is frequently misnamed "primary residential custody."
A less frequently seen category found in practice is a subset of sole custody—split custody. In this arrangement, each parent has sole custody and decision-making authority while the child is in residence with him or her, and only visitation when the child is in residence with the other parent. The term "primary residential custody" may be more appropriate here, depending on how much time the child spends in residence with each parent.
Shared and split custody have developed as common-sense approaches to the realities of modern day life, even though they are not explicitly expressed in our statutes. Better technical ability to communicate, employment mobility, a given parent's ability to meet certain obligations and other such factors lead to a need for an approach to parenting after divorce that is flexible and can be customized to the needs of each family involved with the children. These broad approaches recognize that every family is unique, and that it is generally in the best interests of the child and parents to maximize contact with both parents. The "designer" approach of these concepts asks the question, "What is best for this family?" This diversity, however, makes it difficult to apply standardized provisions of the law, especially when the existing statutes do not fully address all the permutations that can occur.
KRS 403.270 governs initial custody determinations. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). When determining an award of child custody, KRS 403.270(2) instructs the court to give equal consideration to both parents and to award custody in accordance with the best interests of the child. In so doing, the court shall "consider all relevant factors" and shall specifically consider:
Kentucky Revised Statutes. --------
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;KRS 403.270(2). "KRS 403.270(3) provides that the 'court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.'" Varney v. Bingham, 513 S.W.3d 349, 353 (Ky. App. 2017).
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720[.]
Leach takes issue with the trial court's application of the best interest standard to the extent it denied his request for joint custody. After recounting the testimony, the trial court made the following findings of fact regarding custody:
26. The parties have no reasonable ability to get along, and the Court finds there is no reasonable expectation of improvement in the future. The best example of their inability to get along occurred during two of the Petitioner's unsupervised visits. When Respondent attended visitation[,] the Petitioner called law enforcement and left without seeing his son. The Court finds the parties have no ability to co-parent.(R. at 268-69.)
27. The Court further finds the best interest of [Child] would be served by the Respondent being designated as the custodian. The Court finds the Respondent is a good mother and the Petitioner has produced no evidence of any drug activity on Respondent's part. The Court further notes that Petitioner did not see [Child] for approximately 29 months and has had limited contact since visitation resumed.
While the trial court did note that Heatwole is a "good mother" and Leach failed to see Child for over two years, it appears that the trial court's conclusion that the parties "have no reasonable ability to get along" was the driving force behind its decision to award sole custody to Heatwole. The trial court's conclusion that there was "no reasonable expectation of improvement in the future" appears to have been based on a prior episode where Leach called the police after Heatwole insisted on being present during visitation.
The trial court's order appears to have considered only the parties' past antagonism as predictive of their ability to co-parent in the future. In Squires v. Squires, 854 S.W.2d 765 (Ky. 1993), our Supreme Court explicitly held that antagonism at the time of dissolution and custody proceedings is a poor predictor of the parties' ability to co-parent in the future. The Court explained:
[A] trial court should look beyond the present and assess the likelihood of future cooperation between the parents. It would be shortsighted to conclude that because parties are antagonistic at the time of their divorce, such antagonism will continue indefinitely. Emotional maturity would appear to be a dependable guide in predicting future behavior. By cooperation we mean willingness to rationally participate in decisions affecting the upbringing of the child. It should not be overlooked that to achieve such cooperation, the trial court may assist the parties by means of its contempt power and its power to modify custody in the event of a bad faith refusal of cooperation.Id. at 769.
In previous cases where we have upheld sole custody decisions based on lack of cooperation, there has been considerably more evidence and more discussion such as the volatile and controlling personality of one or both of the parties, mental illness, or major differences in opinion concerning the rearing of children. See, e.g., Daugherty v. Daugherty, 2017-CA-001094-ME, 2018 WL 1582708, at *7 (Ky. App. Mar. 30, 2018) (domineering personality of one parent); McBaen v. McBaen, 2016-CA-001812-ME, 2017 WL 3129980, at *5 (Ky. App. July 21, 2017) (mental illness of one parent); CR 76.28(4)(c).
Such evidence might be present in this case, but the trial court's order is devoid of any conclusion based on such evidence. For example, the trial court notes that Leach allowed his older daughter to drop out of high school, but it is not clear that Leach has taken a position to date on this child's education that is at odds with Heatwole's desires. Likewise, other than the parties' dispute concerning the parameters of visitation—a matter than can be easily remedied by a more specific order—the trial court's order does not reveal any present dispute between the parties concerning the child's general upbringing. A conclusion that the parties are unable to co-parent should be based on various emotional factors as well as possible inconsistent or incompatible views regarding major parenting decisions.
Finally, we note that the ability to co-parent is only one factor for consideration in assessing the overall best interests of the child. While Leach disputes certain other aspects of the trial court's findings, we can discern no other errors of magnitude. On remand, the trial court should reassess the custody determination in light of the above analysis. The trial court is further reminded that consistent with Pennington, there are various subsets of joint custody available for it to consider.
IV. CONCLUSION
Based on the foregoing, we vacate and remand.
KRAMER, JUDGE, CONCURS.
LAMBERT, D., JUDGE, DISSENTS WITHOUT FILING A SEPARATE OPINION. BRIEF FOR APPELLANT: Leroy A. Gilbert, Jr.
Corbin, Kentucky BRIEF FOR APPELLEE: Marcia A. Smith
Corbin, Kentucky
Pennington, 266 S.W.3d at 764-65.