Published Famiily Law Opinion from Ky Court of Appeals September 11, 2015: Child Custody

 S. E.A. v.  R. J.G.

Child was temporarily removed from Mother’s custody in a DNA action. Father filed separate custody action in which mother stipulated to dependency for the purposes of temporary custody. At a subsequent DNA hearing, the family court determined the child should remain in father’s temporary custody with timesharing to be determined in the custody action. The court-appointed G.A.L. issued a report after the DNA hearing. Then, the family court issued an order giving father sole custody and ordering temporarily removal from mother. The family court stated all further orders would be entered in the custody action.

The parties while preparing for a custody hearing in Kentucky, opened a case in Connecticut. The Kentucky court cancelled the custody hearing upon being advised of the Connecticut action. Subsequently, father filed a motion for permanent custody in both Kentucky actions. The family court granted father permanent custody with a hearing. Upon mother’s motion to vacate, the court ordered  the G.A.L. to submit another report. After the report was filed, the family court entered findings of fact and conclusions of law granting father permanent sole custody relying, almost exclusively, on the G.A.L.’s reports.

The Court of Appeals vacated the family court’s order and remanded the action, holding a full evidentiary hearing was necessary and mother should have been given an opportunity to cross-examine the G.A.L. A hearing in a DNA action, predating a psychiatric evaluation and and G.A.L. reports, cannot serve as a basis for a later order regarding permanent custody.

Digested by Elizabeth M. Howell