Last month we reported here on a "not to be published" relocation case in which the Kentucky Supreme Court granted discretionary review. Now there is another. While we still fret about whether to digest "not to be published' decisions, it certainly seems worthwhile to do so for those which are being entertained on discretionary review.
Frances v. Frances, 2005-CA-002235.
Here's the digest:
Issue and Holding:
Whether the trial court’s findings were clearly erroneous or the trial judge abused his discretion in a child custody dispute. The Court held no, the trial judge’s findings were supported by the evidence and he did not abuse his discretion.
One child was born during the marriage of the parties. The wife filed for divorce, and the parties entered an agreed order regarding child support obligations and custody schedule. After learning that the wife had removed the child from school and moved to Iowa, with her boyfriend, the husband filed an emergency motion for temporary custody. After a hearing was held, the trial court granted primary physical custody to the husband. The wife filed a motion to amend, alter, or vacate the judgment, which was denied. The wife appealed.
Under CR 52.01, the trial court’s findings of fact cannot be set aside unless clearly erroneous or the trial judge abused his discretion. KRS 403.270 requires that the best interests of the child standard for determining custody. The record demonstrates that the lower court fully considered the best interests of the child. The wife separated the child from everything that was familiar and stable in her life, especially the on-going and consistent relationship with her father. While the wife offered excuses for her abrupt departure, she failed to use any of the readily available resources in Kentucky to protect women from threatening and potentially harmful situations with a disgruntled former spouse. The trial court was in the best position to determine what is best for the child. Accordingly, the Court found no abuse of discretion.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com