Court of Appeals October 25, 2024 Minutes
Blaine Van Gansbeke v. Bridget F. Van Gansbeke, No. 2023-CA-0942-MR
Jefferson Family Court
http://opinions.kycourts.net/COA/2023-CA-000942.PDF
APPELLATE COURT REVERSES JEFFERSON FAMILY COURT, EMPHASIZES RIGHT TO CROSS EXAMINE FOC SOURCES
In a contentious post-decree custody matter, the family court appointed a Friend of the Court (FOC) after Father moved to modify the existing custody and timesharing order. The FOC filed his report, in which he cited the children’s therapist (Therapist) as one of many collateral sources he interviewed during his investigation. The family court entered an order that the testimony of Therapist could not be compelled by any means as such testimony was against the best interest of the children. Father then moved to exclude the FOC’s report and testimony at the hearing because he did not have a meaningful opportunity to challenge the FOC’s sources. The family court denied Father’s motions and Father appealed.
The Court of Appeals found that in denying Father’s ability to compel the testimony of Therapist, the family court violated Father’s due process rights. The Court outlined the due process protections contained within KRS 403.300(3), which aim to provide both sufficient notice of the FOC report and its sources, and a meaningful opportunity to refute them. The Court found that the FOC report was rife with references to Therapist’s viewpoints which could only have been included as first or second level hearsay. Thus, prohibiting Father from exercising his statutory right to have Therapist substantiate what they told the FOC violated the due process necessary for Father to protect his right to parent his children. The Court vacated the order and remanded the matter for a new hearing.
Carter Anderson
