Williams v. Frymire, Ky COA, Modification of Custody, Jurisdiction

Linda Williams v. David Frymire

No. 2011-CA-001568-ME

Published: Opinion Affirming

County: Calloway

Linda Williams has appealed from judgment of Calloway Family Court
modifying custody of the parties’ minor daughter, Jessica Frymire, from sole to
joint and naming Linda’s former husband and Jessica’s father, David Frymire, as
the primary residential parent.  Linda
contends the court did not have jurisdiction to consider David’s motion to
modify, and if the forum was appropriate, abused its discretion in modifying
the primary residential parent.

The parties were married twice; first from 1992 to 1996 and a second
marriage which occurred in 2000.  Jessica
was born in 2005.  In 2006 Linda filed a
petition in Fayette County to dissolve the marriage.  David failed to appear at the final hearing
regarding custody of Jessica and Linda was awarded sole custody and child
support.  The final decree was entered in
January, 2007.  When Linda moved to
Woodford County in November, 2007, she moved to transfer the matter to Woodford
County.  In July, 2010, she moved to
change the venue again, this time to Calloway County.  Linda and Jessica moved to Missouri, but
David remained in Calloway County.

In January, 2011, David filed a motion in Calloway Family Court
requesting modification of custody or timesharing, for modification of child
support, and restricted visitation.  The
basis for David’s motion was an email from Linda announcing that five-year-old
Jessica was transgender and would from that time on be considered a boy, wear
boy’s clothing, and be called Bridge. 
Linda would not listen to any challenge regarding this decision.  David’s motion notified the court that Linda
had previously raised unfounded concerns about Jessica’s vision, hearing, and
speech and her suspicions that Jessica had Asperger’s Syndrome.  David requested appointment of a child
psychologist and a custodial evaluation, which the court granted.

The trial court concluded that Kentucky retained exclusive and continuing
jurisdiction pursuant to statute because David was a Kentucky resident and that
Kentucky was not an inconvenient forum. 
A modification hearing was held on August 3 and 4, 2011.

David testified that Linda has bipolar disorder and her belief that
Jessica is transgender developed after she viewed a television special on the
topic.  David’s sister, Betsy Porter, and
his mother, Phyllis Frymire, both testified that Jessica played like a girl,
but conceded that she was not a “frilly” girl. 
David’s father and his girlfriend both testified that they did not
believe there was a gender issue.

Dr. Sarah Shelton, a clinical psychologist appointed by the court to
perform a forensic custodial evaluation of parents and child, found no support
for the diagnosis of gender identity disorder, and that Jessica should be
treated with gender neutrality.  She
recommended a change in custody.  Dr.
Dale Owens, a child clinical psychologist, performed an independent evaluation
of Jessica’s medical records and found that only Dr. Shelton’s reports were
objective and thorough.

Dr. Patricia Berne, Jessica’s treating psychologist, recommended
affirming Jessica’s gender choice.  She
admitted she did not perform any psychological tests and was confident in
diagnosing gender identity disorder, because in her opinion, gender is
innate.  Dr. Robin Park, a psychologist,
testified at the request of the court. 
After meeting with Linda, Dr. Park was concerned about possible sexual
abuse and referred Linda to Holly Carson to evaluate possible abuse.  Linda began cancelling appointments with Dr.
Park who then made a hotline call to report suspected sexual abuse and neglect.

Trina Jansen, a licensed counselor and Jessica’s art therapist,
testified that she diagnosed Jessica with gender identity disorder after the
first visit.  Lacking experience with
this disorder, she referred Linda to Dr. Berne. 
After internet research and reading books, she felt qualified to write
an opinion letter recommending affirmation of Jessica’s gender identity as a boy.

Linda testified about her difficulty dealing with the diagnosis of
gender identity disorder and trying to follow the recommendations of the
medical providers.

Linda asked Dr. Dean Rosen, a licensed clinical psychologist, for a
second opinion.  He concurred in the
finding of gender identity disorder, but admitted he did not contact David or
any of his family members for input. 
Clay Williams, Linda’s father, testified that Linda was following the
providers’ recommendations.  Rhonda Diaz,
who works at a childcare center in Calloway County that Jessica once attended,
was called by David on rebuttal.

At the closing of the hearing, David requested sole custody, with visitation
for Linda.  Linda requested joint custody
with her being named as primary residential custodian.  The GAL also recommended joint custody with
Linda remaining as the primary residential custodian.

In August, 2011 the court issued its findings of fact, conclusion, and
judgment, holding that it was in Jessica’s best interest to modify custody from
sole to joint with David designated as the residential parent and visitation to
Linda.  The court did not dismiss the
possibility that Jessica has or may have gender identity disorder but noted
that girls can prefer male sports, toys, and clothes without being pathologized,
requiring intervention.  Linda was also
ordered to pay child support.  Linda then
filed this appeal.

The Court of Appeals ruled that there were significant connections to
Kentucky and substantial evidence in Kentucky for Kentucky to retain exclusive
jurisdiction, after reviewing the factors in KRS 403.834(2), the Court of
Appeals held that the trial court did not abuse its discretion in retaining
jurisdiction.

The Court of Appeals also agreed that the family court’s decision to
name David as the residential parent was not an abuse of discretion based on
the evidence presented.  The Court made
no judgment about the diagnosis of gender identity disorder, but noted that
medical witnesses Linda presented did nothing to establish that Jessica was
properly diagnosed or that Linda was receiving or following competent medical
advice.  The Court stated that Linda’s
behavior provided sufficient support for the decision that it would be in
Jessica’s best interest to name David as the residential parent and no abuse of
discretion was perceived.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.