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

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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.


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