Ky Court of Appeals, July 18, 2014, Published Opinion Reversing Order Reinitiating Contact With Mother

OSTER VS. OSTER

The Appellate Court reversed and remanded a Trial Court Order for reinitiation of contact between a mother and her two children. The Appellate Court first held that the Trial Court’s  original order conditioning reinitiation on compliance with all therapeutic recommendations was never modified, set aside, or reversed. Therefore, the mother was bound by it. The mother’s noncompliance with the original order was enough to bar reinitiation of contact.

OSTER VS. OSTER

The Appellate Court reversed and remanded a Trial Court Order for reinitiation of contact between a mother and her two children. The Appellate Court first held that the Trial Court’s  original order conditioning reinitiation on compliance with all therapeutic recommendations was never modified, set aside, or reversed. Therefore, the mother was bound by it. The mother’s noncompliance with the original order was enough to bar reinitiation of contact.

The court reiterated the principle that when there is a previous denial of visitation, there is no presumption visitation is in the child’s best interest. The mother’s DVO prohibiting contact which her children destroyed the presumption visitation was in her children’s best interest. It is the child’s best interest which controls the decision to resume visitation. In this case, the court held reinitiation was not the children’s best interest because none of the experts believed visitation should resume, the mother had ongoing mental health problems, and the conditions of the previous order had not been met. The desire of the children to see their mother was not sufficient evidence visitation was in their best interest.

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