Court of Appeals October 18, 2024 Minutes
Lisa Bentley and Gerald Bentley v. Scarlett Etherton and Tasha Bentley, No. 2023-CA-0560-MR
Bullitt Circuit Court
http://opinions.kycourts.net/COA/2023-CA-000560.PDF
KENTUCKY COURT OF APPEALS AFFIRMS BULLITT FAMILY COURT ORDER DENYING GRANDPARENT MOTION TO MODIFY CUSTODY, VISITATION
After Mother killed Father in Henry County, Aunt initiated a DNA action in Bullitt County and was awarded temporary custody of Child. Paternal Grandparents – without knowledge of the Bullitt County DNA action – filed a visitation action in Henry County that named Mother and Aunt as respondents and would later be transferred from Henry to Bullitt County. Aunt sought to dismiss based on the DNA action.
Grandparents then attempted to intervene in the DNA action. At an adjudication in the DNA action, and without making a formal motion, Grandparents sought to intervene and obtain custody of Child. The family court did not rule on Grandparents’ motion to intervene, but did order a visitation schedule for Grandparents. Grandparents later filed a motion to intervene and for joint custody, which the family court never ruled on. The family court did issue an order denying their motions for joint custody. In another order, the family court ordered grandparent visitation and granted Grandparents access to Child’s medical and psychological records.
Aunt was later awarded permanent custody of Child in the DNA action after filing a motion and serving the same to all parties. Grandparents did not appear at that hearing to state any objection. For years after the permanent custody order was entered, the parties filed multiple motions and agreed orders regarding Grandparents’ visitation with Child. Eventually, on Grandparents’ motion for modification of custody and Aunt’s motion for Grandparents’ visitation to occur at her discretion only, the family court entered an order finding the current custody and visitation arrangement in Child’s best interest. Grandparents filed a motion to alter, amend or vacate, which the family court denied, after finding that the motion lacked a sufficient basis to modify under CR 59.05.
Grandparents appealed, arguing that: 1) the Family Court violated their due process rights when it adjudicated the DNA petition without notice to them and 2) the Family Court’s Friend of the Court (FOC) failed to comply with his statutory obligation to investigate the case.
The Court of Appeals found neither argument persuasive. While it was true that Grandparents were not officially permitted to intervene, the family court had proceeded in the DNA action as if it had granted intervention by ruling favorably on some of Grandparents’ motions and unfavorably on others. Timely notice of the adjudication hearing had been mailed to Grandparents’ counsel in the DNA matter and a hearing was later conducted on their motion to modify custody in the custody matter. Thus, Grandparents had been given multiple opportunities to be heard.
Second, Grandparents confused the court appointed FOC’s role – outlined by KRS 403.290-300 – with the duties of a fiscal court FOC outlined by KRS 403.090. The statutes governing the FOC in this context use permissive language, stating that an FOC “may” conduct an investigation. Whether the family court was satisfied with the FOC’s performance was within those discretionary bounds and a matter between the family court and the FOC. More importantly, Grandparents’ argument assigned no error to the family court relative to the FOC’s report. Because the FOC report was one part of a body of substantial evidence supporting the family court’s order, the Court of Appeals could not find that the family court had committed any error. Thus, the Court of Appeals found no error, and affirmed the family court.
Carter Anderson
