FROM DAVIESS CIRCUIT COURT HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 16-CI-00455
FOR APPELLANT: Patrick T. Flaherty Owensboro, Kentucky.
FOR APPELLEE: David M. Taylor Owensboro, Kentucky.
BEFORE: COMBS, JOHNSON, AND J. LAMBERT, JUDGES.
LAMBERT, J., JUDGE
Lynn Baize (the Mother) appeals the Daviess Circuit Court
order granting primary physical custody of the parties'
child to Jeffrey Alan Peak (the Father). We affirm.
Mother and Father began a relationship in late 2007/early
2008. The Mother became pregnant, and the parties' son
(the Child) was born in September 2008. Paternity of the
Father was established in April 2009, and he was ordered to
pay child support.
parties never married, but they remained together for the
most part until they separated in 2014. At that time, the
issue of child support was revisited, and the Father was
ordered to pay $691.00 per month.
5, 2016, the Father filed a petition for joint custody of the
Child, with the Father as primary custodian. The Father
alleged that the Mother moved residences frequently, which
resulted in multiple changes of schools for the Child, and
that the Father could provide a more stable lifestyle. The
Father also requested that he be allowed to claim the Child
for federal and state income tax purposes.
Mother filed her response the following month; she did not
contest the requested award of joint custody but urged that
primary custody of the Child be awarded to her. The Mother
also requested that child support payments be recalculated
and that the parties should share claiming the Child for
income tax purposes on alternate years.
Daviess County Domestic Relations Commissioner held a hearing
on the petition and response on July 28, 2016. In his
Recommended Order entered on August 3 of that year, the
Commissioner proposed that the parties be awarded joint
custody of the Child with the Father as primary custodian.
The Commissioner found that the Mother had moved seven times
since the parties' separation and that the Child was
forced to change schools four times in one academic year. The
Father, on the other hand, had a stable domestic life (with
plans to marry the woman with whom he was cohabitating), a
full-time employment history, and a steady income. The
Commissioner recommended that child support payments being
made by the Father cease when primary custody was effected;
he also proposed that the parties alternate years for
claiming the Child on taxes (with the Mother claiming on odd
years - beginning in 2015 - and the Father on even years).
Mother filed timely exceptions, the Father responded to the
Mother's exceptions, and the Daviess Circuit Court held a
hearing on September 21, 2016. The circuit court entered its
Order adopting the recommendation of the Domestic Relations
Commissioner on September 22, 2016, and the Mother appealed.
This Court ordered the matter expedited on November 1, 2016.
Mother argues that the circuit court erred in adopting the
Commissioner's Recommended Order. The Mother specifically
complains that neither the circuit court nor the commissioner
made findings pursuant to Kentucky Revised Statute (KRS)
403.270 ("Custodial issues - Best interests of child
shall determine - Joint custody permitted - De facto
custodian"). The pertinent parts of that statute (as
argued by the Mother) are as follows:
(2) The court shall determine custody in accordance with the
best interests of the child and equal consideration shall be
given to each parent and to any de facto custodian. The court