v. Getter, 2012-CA-000655-ME
Ex-Wife appealed Family Court’s
order granting Ex-Husband’s motion requesting that minor child relocate to
reside with him in Florida.
Husband and Wife with two children
from the marriage divorced in 2003. Ex-Wife had sole custody of the children,
and Ex-Husband visited the children periodically with supervised visitation. When
the oldest child reached the age of majority, she moved to Florida to attend
college near Ex-Husband. Ex-Husband filed a motion for the younger daughter to
reside with him in Florida. The Family Court appointed a guardian ad litem (GAL) to represent the child.
The GAL filed a report with the court, and the court held a hearing, later
ordering that the child could relocate to Florida and live with Ex-Husband.
Ex-Wife argued that the court erred
when it did not allow her to call the GAL as a witness and denied her request
to strike the GAL’s report. Ex-Wife also argued that the court did not follow
the law governing a change of custody and improperly determined that the
relocation was in the child’s best interest.
The Kentucky Family Rule[s] of
Practice and Procedure provide that a GAL may be appointed by the court, but
the rules specifically differentiates between GALs and other professionals who
may be used in a custody proceeding. The GAL in this case was appointed to
represent the child. The GAL was a licensed attorney, and would have violated
the ethical rules governing confidential communications and acting as an
advocate when the lawyer is likely to be a witness. Although Kentucky law does
not specifically define the role of a GAL in custody proceedings, the Family
Court properly denied the GAL’s testimony due to the ethical concerns
The court also properly denied
Ex-Wife’s motion to strike the GAL report. The court appointed the GAL to
counsel the court in formulating a decision. The court has considerable
discretion in this area, and it would have been a waste of resources to
disregard the report. Because of the inherent conflict and potential for
prejudice created by the ambiguity in the statute, the proper role for a GAL in
child custody issues should be scrutinized by the General Assembly or Supreme
Court. A review of the law in other jurisdictions regarding the role of GALs in
custody proceedings did not yield consistent results. Some states prohibit a
GAL from testifying, while other states have statutes explicitly stating the
role of the GAL and the GAL report and under what circumstances a GAL can be
called as a witness and cross-examined. Nevertheless, in this case, the
testimony of the witnesses at the custody hearing was thorough and was relied
upon more than the GAL report in the court’s decision. Any error from allowing
the GAL report to be considered was harmless.
KRS 403.340(3) provides that a court
must not change a prior custody determination, unless there is a change in the
circumstances of the child or the custodian, and the modification is in the
best interests of the child. The Family Court found that Ex-Husband had
increased his visitation, that the older sister had moved away from the home to
live with Ex-Husband, and the relationship between Ex-Wife and the child had
deteriorated. The relocation was in the child’s best interest because Ex-Wife,
Ex-Husband, the older sister, and the child all testified at the hearing, and
each of Ex-Wife’s concerns about the relocation were addressed in the court’s
order. Overall, the court accepted the child’s explanation of the toxic
relationship that had developed between her and her mother.
Judge Denise Clayton wrote
separately, concurring with the result. Judge Clayton stated that it was
improper to admit the GAL’s report because the GAL was the child’s legal
representative. The court reached the correct result, but the parties should
have never been in the position where the child’s legal representative was also
serving as an expert to the court.