Whitley Circuit Court
Questions Presented: KRS 403.340(3). Modification of Visitation. Best Interests of the Children. Risk of Harm. The “Law of this Case” Doctrine. The issue here is whether the trial court erred in failing to make a specific written finding that it was in the best interests of the Movant’s children to allow the Respondent, their father, to have unsupervised overnight visits, where the court had also made a finding that the children would not be at risk if they did so. An additional issue is whether the trial court’s decision to allow unsupervised overnight visits was contrary to the “law of this case.”
Family Court restricted Father’s parenting time to supervised visitation after finding that he sexually abused his oldest child. Father moved to modify parenting time, such that he had unsupervised parenting time. Family Court, in its order, made findings of fact and conclusions of law regarding whether the visitation would seriously endanger his children. Family Court did not make findings of fact or conclusions of law regarding the best interests of the children. Family Court awarded Father unsupervised visitation. Mother appealed, and the Kentucky Court of Appeals affirmed. The Supreme Court granted discretionary review. It held that Family Court erred in granting Father unsupervised visitation, because it applied the incorrect legal standard. Father was seeking a modification, an increase in visitation, rather than a restriction. The appropriate criterion was the best interests of the children, not whether there was a risk of endangerment, which only applies to a restriction of less than reasonable visitation pursuant to KRS 403.320(3).
Digested by Nathan R. Hardymon