Warren County
Parties were divorced in 2012. The parties shared joint custody of their two (2) minor children with Mother being the primary residential parent and Father exercising prescribed parenting time.
In 2020, the parties filed cross motions to modify the parenting schedule. Father’s motion requested that the prior parenting schedule be enforced and modified to a 50/50 schedule. Mother’s motion requested a modification of the parenting schedule to reduce Father’s parenting time and requested the entry of co-parenting guidelines and an order for co-parenting counseling. The circuit court ordered the parties to submit to a psychological evaluation. Mother complied but Father did not.
The circuit court held a hearing on both parties’ motions to modify the parenting schedule in February of 2021. The children’s therapist testified at the hearing, but Father was unable to fully cross-examine the therapist due to time constraints. The circuit court entered an order in March of 2021 ordering that upon Father’s agreement to follow the therapist’s recommendations temporarily, pending the conclusive portion of the hearing, Father was to have parenting time with the oldest child in a therapeutic setting only and with the youngest child at the discretion of the therapist, with supervision.
The conclusive portion of the February 2021 hearing was held in February of 2022. Father filed a motion in the interim requesting supervision be lifted due to the length of time between the hearings. Father also filed an emergency motion to dismiss the March 2021 order arguing that the order did not change his joint-custody rights. Father objected to the children seeing the therapist due to concerns for alleged professional and ethical misconduct. The court rejected Father’s arguments and ordered that the children continue therapy with the therapist at issue.
At the February 2022 hearing, the therapist again testified. The therapist specifically expressed concern over the correlation between the older child learning of Father’s request for unsupervised parenting time and the child’s subsequent suicide attempt. The therapist also testified to her concerns with Father’s behavior in therapy sessions.
Following the hearing, the circuit court entered an order suspending Father’s parenting time and all family therapy between the children and Father for a minimum of 3 months to allow Father to participate in individual therapy. The circuit court also entered an order holding Father financially responsible for the therapist’s court appearance at the February of 2022 hearing, due in part to Mother having paid for the therapist’s appearance at the February 2021 hearing. Finally, the circuit court denied Father’s motion for unsupervised visitation/time-sharing for not being in the children’s best interest. Father filed a motion to vacate, which was denied. Father then obtained counsel and appealed.
Father’s appeal contended that the circuit court committed reversible error in (1) not scheduling a hearing on his motion to vacate; (2) suspending his visitation for at least 3 months without finding that visitation would seriously endanger the children; and (3) holding him financially responsible for the therapists February 2022 court appearance.
The Court of Appeals determined that it did not have jurisdiction to remedy the circuit court’s decision to deny Father’s motion to vacate without a hearing due to it being interlocutory in nature.
Although Father’s appeal contends that the circuit court erred in ordering him to be financially responsible for the therapist’s court appearance, the Court of Appeals found that Father had not preserved the issue simply by filing a motion to vacate at the circuit court level. Father’s failure to properly preserve the issue limited its ability to review the issue and the standard of review to be employed. Although Father did not request palpable error review, the Court of Appeals found that the circuit court committed no palpable error in ordering Father to pay the therapists costs associated with the hearing and found that Father was not entitled to relief on the unpreserved issue.
The Court of Appeals reviewed the trial court’s suspension of Father’s visitation and order for individual therapy under an abuse of discretion standard.
Modification of parenting time is governed by Kentucky Revised Statute (hereinafter “KRS”) 403.320. It is well settled Kentucky law that visitation should not be entirely denied without a finding that visitation would result in serious endangerment of the child.
In this case, although the circuit court’s order is referred to as a modification of parenting time, the substance of the order must be examined rather than the form. The order functioned as an outright denial of all visitations for 3 months and placed conditions on Father’s ability to regain parenting time, which the Court of Appeals found to be an order denying all visitation, even if only temporarily. Without a finding of serious endangerment, the circuit court improperly denied Father’s visitation. The Court of Appeals found that while the circuit court did make factual findings as to why it reached its conclusion, it did fail to include the required conclusions of law required by KRS 403.320, thus warranting the vacation of such an order. The Court of Appeals noted that on remand the circuit court may properly enter an order with the same restrictions only if it determines that visits would seriously endanger the children.
The Court of Appeals affirmed the circuit court’s order for Father to participate in individual therapy and order denying Father’s request for unsupervised parenting time, while vacating the circuit court’s outright denial of Father’s parenting time and remanding the case for additional findings under KRS 403.320.
Kendall Box
