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May v. Harrison

Supreme Court of Kentucky

November 1, 2018

SALLY A. MAY APPELLANT
v.
DONNIE J. HARRISON APPELLEE

          ON REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-001476-ME JESSAMINE CIRCUIT COURT NO. 05-CI-00972

          FOR APPELLANT: Michael Robey COOLEY IULIANO ROBEY, PLLC

          APPELLEE: Donnie J. Harrison

          OPINION OF THE COURT BY JUSTICE CUNNINGHAM

         Appellant, Sally A. May ("Ms. May"), and Appellee, Donnie J. Harrison ("Mr. Harrison"), never married but had two sons, now 15-year-old Elliot and now 13-year-old Zane.[1] The boys resided with both parents until August 2005. Thereafter, Elliot and Zane resided with Ms. May in Plain City, Ohio. During this time, Ms. May married Joseph Yruegas and gave birth to two daughters. Sometime thereafter, Ohio Child Protective Services removed Ms. May and all of the children from the home due to Yruegas' drug addiction. Ms. May divorced Yruegas and was awarded full custody of their daughters. In 2010, Mr. Harrison gained physical custody of the boys and brought them to Nicholasville, Kentucky.

         When Ms. May subsequently pursued timesharing with Elliot and Zane, Mr. Harrison moved to suspend her visitation/timesharing rights based upon allegations from the two boys that Yruegas had sexually abused them. Elliot and Zane also alleged that Ms. May was involved in the sexual abuse. The Ohio police investigated but perceived no grounds for charges against Ms. May.

         Being unable to resolve the evidentiary conflict which included Ms. May's denial of any sexual abuse of her boys, the trial court decided to conduct an in camera interview in chambers with then-13-year-old Elliot. The interview lasted over forty minutes during which Ms. May and her counsel were able to view the exchange through closed circuit video. The trial court subsequently ordered "that there be no contact between [Ms. May] and the two boys until either of their qualified mental health professionals believe it would be appropriate . . . ." In affirming the trial court, the Court of Appeals held that although the judge's questioning exceeded the bounds of KRS 403.290(1), the error was harmless. We granted discretionary review.

         Analysis

         KRS 403.290(1) authorizes trial judges to conduct an in camera interview with children for purposes of custody and visitation determinations. It specifically provides as follows:

The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case.

         When determining custodial issues, courts must consider the best interest of the child. KRS 403.270. We review custody, visitation, and timesharing determinations for an abuse of discretion. Pennington v. Marcum, 266 S.W.3d. 759 (Ky. 2008).

         In the present case, the court appropriately sought to ascertain Elliot's wishes concerning visitation. The court also engaged in an extensive factfinding mission as to the sexual abuse allegations. After asking Elliot why he thought they were talking, he responded that he was there to assure the judge that he would never have to visit his mother again. He was then asked whether Ms. May engaged in sexual activity with him. Elliot reported that she raped him in their basement in Plain City when he was around five or six years old. He specifically stated that "she made me stick my penis into her area." The judge clarified that "area" meant "female parts." Elliot also discussed other instances where he and his brother Zane were sexually abused by Joseph Yruegas while Ms. May watched.

         Ms. May argues that the court's in camera questioning exceeded the bounds of KRS 403.290(1), which she claims is limited to discerning a child's wishes as to custody or visitation. We disagree.

         There is no heavier responsibility for a trial judge than the interest of children. Child custody decisions are a huge part of this awesome burden. KRS 403.270 gives the judge direction to make these critical determinations for the best interest of the child. That statute enumerates several broad and encompassing factors to be considered in that decision making. KRS 403.270(2). This gives the judge wide fact-finding responsibility. Inherent with that statutory mandate is the authorization to seek out testimony from the child involved, as need be.

         It is counterintuitive to think that a judge can interview a child for the much less important question of where the child wants to live and not be able to ask the child about serious allegations of sexual abuse. An obvious corollary to a child's wishes concerning visitation or custody is why the child harbors such wishes. Moreover, the Court of Appeals correctly noted that our rules of evidence place the court in control of evidence and permit the court to interrogate witnesses. KRE611, 614. These rules cannot be ...


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