FROM DAVIESS FAMILY COURT HONORABLE JULIA H. GORDON, JUDGE
ACTION NO. 15-CI-00767
FOR APPELLANT: Evan Taylor Owensboro, Kentucky.
FOR APPELLEE: Patrick T. Flaherty Owensboro, Kentucky.
BEFORE: ACREE, JONES AND THOMPSON, JUDGES.
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.
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.
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. (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).
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).
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.
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. Citing
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 . . . ."
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.
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
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
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.
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.
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.
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
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.
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