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Hamilton v. Duvall

Court of Appeals of Kentucky

October 26, 2018

BRANDY JADELL HAMILTON APPELLANT
v.
ROBERT DUVALL; SHARON DUVALL; AND JOSHUA EDMOND DUVALL, FATHER, NOW DECEASED APPELLEES

          APPEAL FROM DAVIESS FAMILY COURT HONORABLE JULIA H. GORDON, JUDGE ACTION NO. 15-CI-00767

          BRIEF FOR APPELLANT: Evan Taylor Owensboro, Kentucky.

          BRIEF FOR APPELLEE: Patrick T. Flaherty Owensboro, Kentucky.

          BEFORE: ACREE, JONES AND THOMPSON, JUDGES.

          OPINION

          ACREE, JUDGE.

         Brandy Jadell Hamilton (mother) appeals from a Daviess Family Court ruling that her constitutional right to make decisions regarding her child, M.B.D. (child), must give way to the statutory right of Robert and Sharon Duvall (grandparents) to visit with mother's child. Because no special factors or circumstances exist to overcome the presumption that mother acted in child's best interests regarding the time child spent with grandparents, we reverse.

         In May 2013, mother gave birth to child. The father was grandparents' son, Joshua Edmond Duvall (father). Mother and father never married. Mother allowed father scheduled timesharing with child for a few hours, five days a week. Father lived with grandparents and child spent this time with all three. After father was incarcerated in January 2015, mother permitted child to continue visiting with grandparents on this schedule.

         Father or grandparents or all three became dissatisfied with how visitation was going. On August 21, 2015, a verified petition for custody was filed naming father as the petitioner and mother as respondent. The averments are purportedly by father, but father did not sign the petition or the verification; it was verified only by grandparents.[1] (R. 1-5). Father was still incarcerated at the time. The petition sought joint custody with a designation of mother as child's residential parent. It also sought an award of parenting time to father but "that during the remainder of [father's] incarceration . . . [grandparents] be allowed to exercise his [sic] some or all of his parenting time." (R. 2).

         After father was released from jail, he moved the family court for an award of joint custody and parenting time. The motion was granted in May 2016 with limited weekend parenting time for father set during the next ninety days. After ninety days, father was to have parenting time consistent with the 2012 Daviess County Parenting Guidelines, Rules of the Daviess Circuit Court (RDCC), Appendix B (Guidelines). (R. 60-61).

         On October 13, 2016, father was killed in a work accident. Mother attended father's visitation and funeral and took child with her, but she did not permit grandparents to take child with them that weekend. Going forward after father's death, mother continued to allow some visitation with grandparents but decreased visitation over time. Eventually, a routine developed. Mother allowed child to visit with grandparents overnight every other weekend from Saturday at 6 PM until Sunday at 6 PM.

         Some six months after father's death, grandparents filed a motion to intervene in the action they had initiated on father's behalf nearly two years earlier.[2] Citing KRS[3] 405.021(3), their motion asserted it was in child's best interest that grandparents "participate in the child's custody and upbringing." (R. 69). Grandparents asked that they "be awarded custodial time" with child and for the court "to make a determination that the biological father has in the past transferred his superior right to custody during his period of incarceration and . . . to modify custody . . . ." (R. 66-70).

         The family court ruled that grandparents had standing to intervene but did not initially grant the "custodial time" sought. Instead, the family court entered an interlocutory order granting grandparent visitation each weekend for twenty-four hours, based on the court's understanding of what mother had voluntarily allowed. (R. 80).

         On August 18, 2017, the family court held an evidentiary hearing. Grandparents, mother, and child's paternal aunt testified. The witnesses agreed that after the birth of child and before father's death, when mother returned to work, child spent substantial time with father and grandparents. Mother also agreed with the other witnesses that she allowed grandparents visitation while father was incarcerated, and she and grandparents took child to see father when he was on work release.

         Grandparents testified that after father's death, mother began reducing the visitation she allowed with them and they feared she would eliminate all visitation. Mother also restricted grandparents from taking the child outside the state and, later, outside the county. This had the effect of preventing grandparents from taking child to see relatives, to attend their church, to visit father's grave, and to go to Disney World for fall break. Grandparents agreed that other than one occasion, mother consistently gave them twenty-four-hour visitation every other weekend and she permitted them some visitation on Christmas Day. Finally, grandparents testified they would be willing to pay child support.

         Mother testified that she works in Evansville approximately fifty hours per week in ten-hour shifts, including a 12:30 PM to 10:30 PM shift on Wednesdays and has Mondays and Tuesdays off. She said child is four-years-old and has public preschool on weekday mornings. Her fiancé is a full-time student and takes care of child and his own child (who is child's three-year-old half-sibling) when mother is working. Her fiancé works on his online degree when the children are asleep. Mother testified that child considers her fiancé his father and she wants child to spend time with his future stepfather and sibling.

         Mother restricted grandparents from taking child out of state because they took child to Evansville without informing her. Although she temporarily restricted them from taking child out of the county, she eliminated that restriction and did permit grandparents to take child out of state if they first obtained mother's permission. She explained that she opposed the proposed Disney World trip partly because of the timing. The trip would have coincided with the one-year anniversary of father's death and mother explained that grandmother continued to cry and be very emotional every time they exchanged child. She worried how grandparents' sorrow and mourning would impact child under those circumstances. She said she believed as child's mother she should be able to raise child as she sees fit. She believed she had allowed grandparents adequate visitation with child and that any additional time with child should be at her reasonable discretion. She also testified that her own mother only sees child once a month.

         The family court made findings from the bench. Notably, the court rejected grandparents' claim to custodial rights based on their allegation that father transferred his rights to them while he was incarcerated. The parties agreed that child's entitlement to father's social security benefits could effectively offset any requirement for child support payments owed by father or his estate, but no ruling was made on the child support issue.[4]

         In its written order, the family court found child has a strong relationship with grandparents, that grandparent visitation would not be detrimental to mother's relationship with child due to her work schedule because she would largely be working while grandparents exercised visitation, and that grandparent visitation would result in only a slight loss of time to child with his mother, half-sibling, and future stepfather. The family court found child would benefit from a relationship with grandparents and his extended paternal family and, although grandparents are still emotional about the death of their son, child would not be harmed by spending time with them. Due to child's youth, his wishes were not sought.

         The family court began applying the law to these facts with a conclusion that mother was a fit parent. Then, turning to its opinion of the best interests of the child, the court held that grandparents met their burden to rebut the presumption that mother's limitation of the time child spent with them was appropriate. It found child's best interest would be served by awarding noncustodial visitation to grandparents pursuant to the Guidelines with the alteration that midweek overnight visitation be held on Wednesdays when mother works later in the day. The family court's order permitted the grandparents to take child out of state but required them to inform mother ahead of time.

         Mother does not dispute the family court's factual findings. She argues the family court erred in overruling her parental decision to limit the time child spends with grandparents to every other weekend. Mother argues the family court erred by essentially making grandparents co-parents with an award of visitation pursuant to the Guidelines without first finding that child was harmed by refusing more visitation or that the ...


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