FROM FAYETTE CIRCUIT COURT HONORABLE KATHY STEIN, JUDGE
ACTION NO. 13-CI-02538
FOR APPELLANT: Anna L. Dominick Lexington, Kentucky.
FOR APPELLEE: Martha A. Rosenberg Lexington, Kentucky.
BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES.
OPINION VACATING AND REMANDING
Agnich appeals from an Order of the Fayette Circuit Court
granting LaDonna Tyler's Motion to Modify Timesharing,
permitting her to relocate with the parties' two minor
children to another state. For the reasons set forth below,
we vacate and remand for additional proceedings.
Jan Marie Agnich ("Jan"), and Appellee, LaDonna Kay
Tyler ("LaDonna"), were in a committed same-sex
relationship for thirteen years. During that time, they
decided to begin a family together. After several rounds of
in vitro fertilization, LaDonna became pregnant with twins,
who were born on June 23, 2010, and are now six years old.
The parties resided with the children in Jan's Lexington
home as a family until May of 2015.
prior to the birth of the twins, both Jan and LaDonna signed
Wills and related estate planning documents. In her Will,
LaDonna specifically directed that Jan is to be the guardian
of any children she may have. LaDonna's Will states:
"I specifically do not want my parents . . . or my
brother . . . to be the guardian of any minor child(ren) of
mine." LaDonna also signed a "Nomination of
Guardian for Estate and Person of a Minor Child" for
both children, expressing her desire for Jan to care for the
children in the event she became unable to do so. The
Nominations further stated that, in the event Jan could not
care for the minor children, LaDonna designated Jan's
2013, both children were diagnosed with autism at Cincinnati
Children's Hospital. After the diagnosis, the parties
applied for and received a state Medicaid grant to provide
caregivers for the children. Approximately a month later, Jan
filed a Verified Petition for Custody. On that same day,
LaDonna filed an Affidavit and Consent to Custody. The
parties jointly decided and agreed upon this course of action
to ensure Jan would have legal parental rights in the event
any issues occurred later on in their relationship. An Agreed
Final Order on Custody and Timesharing was entered on July
18, 2013. Therein, the court determined that awarding joint
custody of the children to Jan and LaDonna was in the best
interests of the minor children.
parties also entered into a "Shared Custody
Agreement" on August 21, 2013. The Agreement provides
that the parties "intend this Agreement to guide a Court
in determining our respective rights." The Agreement
further provides that in the event the relationship ends,
each party will share in the expenses for the minor children,
and that they "agree that each of us will make a good
faith effort to remain in the school district where the
children are attending school until the youngest child
completes high school."
November 2014, the parties ended their romantic relationship.
Thereafter, the parties participated in mediation, which
resulted in their agreement to an equal timesharing schedule
under which Jan had the children every Wednesday and Thursday
and every other weekend. The parties abided by their 2013
Shared Custody Agreement with regard to the sharing of
expenses and maintaining equal timesharing. The issue of
relocation was reserved for further discussion or order of
the court. LaDonna moved out of Jan's home following the
August 10, 2015, LaDonna filed a "Motion to Modify
Timesharing and Relocate the Minor Children Out of
State" requesting to move to the St. Joseph, Missouri
area. LaDonna included an affidavit with her motion. Therein,
she averred as follows:
4. The Affiant is engaged to be married to her childhood
sweetheart, Mike Gilmore, on April 2, 2016. It is the
Affiant's desire to relocate with the children to the St.
Joseph, Missouri area to be closer to her family and her
fiancé. The Affiant is looking for a home to purchase
in Missouri which would place the children in the Oak Grove
Elementary School district, which is a new school, in a nice
neighborhood and is able to accommodate the children's
special needs, as both children are autistic. Oak Grove
Elementary has specialized instruction for children
identified with Autism, including picture exchange
communication systems, discrete trial training, sensory
integration, applied behavior analysis and a focus on
language development. The school has designated teachers who
specialize in teaching children with Autism.
5. During their partnership Jan worked at Toyota and Affiant
worked as a licensed clinical social worker for the Home of
the Innocen[ts]. Jan was required to work significant hours,
including overtime hours in her position as a group leader.
The Affiant's job and work hours were much more flexible
and therefore Affiant was the parent who took time from work
to care for the children when it was necessary to do so.
Neither party has family ...