Kentucky Supreme Court

Circuit Court found Defendant guilty of violating a Domestic Violence Order and first-degree assault, among other convictions. Defendant appealed, alleging in relevant part that the trial court erred because it allowed testimony via zoom. The Kentucky Supreme Court found that the trial court committed error when it permitted a witness to testify via zoom in violation of Defendant’s right to confrontation afforded by the 6^th Amendment of the U.S. Constitution, and that the error required reversal of the conviction of assault.

Defendant argued that permitting a witness to testify viz zoom violated his rights under the Confrontation Clause of the 6^th Amendment of the United States Constitution. On the morning of trial, the Commonwealth informed the court and Defendant’s attorney that the Commonwealth’s expert would have to testify via zoom as he was scheduled to work at the hospital that day. The witness’s testimony was crucial in proving an essential element of the assault charge.

Defendant objected.

The Sixth amendment guarantees the accused in all criminal proceedings the right to be “confronted with the witnesses against him.” The primary purpose of which is to compel the witness “to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”

In Maryland v. Craig, 497 U.S. 836 (1990), the U.S. Supreme Court held that a defendant’s right of confrontation is not absolute and that it might be outweighed upon an adequate showing of necessity on a case specific basis. (holding that a state’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in come cases, a defendant’s right to face his or her accusers in court). In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court rejected the balancing test holding that the 6^th Amendment does not express a preference for face-to-face confrontation, but “it commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Although contradicted, Crawford did not overrule Craig.

Applying Craig, the Kentucky Supreme Court found there was no showing of necessity, other than convenience to the witness, of balancing the victim’s interests that justified the surrender of the Defendant’s constitutional right of confrontation.  

Digested by: Emily T. Cecconi

The post Kentucky Supreme Court Holds Zoom Testimony Violated Defendant’s Sixth Amendment Right of Confrontation Afforded by the U.S. Constitution Without Showing of Necessity appeared first on Goldberg Simpson - Family Law Group.

U.S. District Court for the Eastern District of Kentucky

Appeal filed on February 23, 2023

Family Court issued a Domestic Violence Order (“DVO”) against Combs after “a hearing of which he received actual notice” and “an opportunity to participate.” The DVO prohibited Combs from “harassing, stalking, or threatening an intimate partner,” and explicitly prohibited “the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury.” A few days after issuance of the DVO, Combs purchased a firearm, indicating on the purchase application he was not subjected to a DVO.

A federal grand jury charged Combs with being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(8), which prohibits a person who is subject to a domestic violence order from receiving or possessing a firearm. Combs filed a motion to dismiss the indictment arguing that 18 U.S.C. § 922(g)(8) was unconstitutional as it failed to meet the Second Amendment test set forth by the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022).

The Bruen opinion reinforced a “text and history” approach to the Second Amendment, holding that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” and “to justify [the second amendment’s] regulation, the government…must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

First, the United States argued that the Supreme Court has limited the Second Amendment to law-abiding, responsible citizens. The District Court noted, however, that other courts have declined to read into the amendment a qualification that its rights only belong to law-aiding citizens, finding that a plain reading of the amendment covers all persons under the constitution. Thus, the District Court held that a plain reading of the Constitution protected Combs’ right to possess a firearm, even assuming that he was not a law-abiding, responsible citizen.

Second, the United States argued that surety statutes, which required certain individuals to post bond before carrying weapons in public, and historical laws disarming “dangerous people” provide a sufficient historical analogue to satisfy Bruen’s second amendment test. The United States argued that both surety laws and U.S.C. § 922(g)(8) attempt to prevent known allegedly reckless individuals from using a firearm in furtherance of a crime, and, therefore, have a similar social purpose. Combs argued that surety laws were insufficiently analogous the federal law, and the District Court agreed. The District Court held that U.S.C. § 922(g)(8)’s complete deprivation of an individual’s ability to possess a firearm was materially different than a sureties’ possible disarmament, if violated, and was therefore unconstitutional.

Digested by: Emily T. Cecconi

The post Federal Law Prohibiting Individuals Subject to Domestic Violence Order from Receiving or Possessing Firearms Held Unconstitutional by U.S. District Court appeared first on Goldberg Simpson - Family Law Group.

U.S. Court of Appeals for the Sixth Circuit

Family Court ordered Mother to pay monthly child support and 32% of childcare expenses to Father. Shortly thereafter, Father filed for contempt due to Mother’s refusal to pay certain child related expenses. Child then incurred certain medical related expenses, for which Father requested reimbursement. Mother filed for bankruptcy. Mother argued that her bankruptcy petition stayed the contempt proceedings against her, but the Family Court found that the stay did not apply because the hearing was related to her domestic support obligations. The Family Court entered a judgment setting Mother’s arrearage, increased Mother’s wage withholdings, and intercepted Mother’s tax refund. The Family Court also found Mother in contempt.

Father filed another contempt motion with the family court for Mother’s failure to pay the child related medical expense. In response,  Mother filed a Motion in Bankruptcy Court, arguing Father violated the automatic stay. The Bankruptcy court found that Father violated the automatic stay and awarded Mother $4,313.75 in attorney’s fees and $1,000 in punitive damages, on the basis that the Contempt finding violated the automatic stay. The Bankruptcy Court also found the wage garnishment order and the tax interception did not violate the stay. The Bankruptcy Appellate Panel found the medical expense was subject to the stay.

Mother appealed. The Court of Appeals held that, except for the contempt finding, the Family Court’s order did not violate the automatic stay because an exception applied. The Bankruptcy code’s automatic stay of other actions against the debtor does not apply to a civil action that is “for the establishment or modification of an order for domestic support obligations.” Domestic support obligations include debts established by a court that are “in the nature of” maintenance or support, “without regard to whether such debt is expressly so designated.” Because the Family Court established a domestic support obligation by entering a judgment for the arrearage, altered Mother’s wage withholding, and clarified the amount of outstanding expenses, the Family Court’s acts were tailored to the stay exceptions. The contempt portion of the Family Court’s hearing was a violation of the automatic stay, however, this was not contested. Finally, the Court of Appeals did not make a finding on whether Father’s request for reimbursement of medical expenses violated the automatic stay because it did not change the Court’s calculation of Mother’s actual damages.

Emily T. Cecconi

The post Bankruptcy Automatic Stay Does Not Apply to Civil Actions for the Establishment or Modification of Domestic Support Obligations, Including Establishment or Modification Which Collects Outstanding Child Support Obligations-Published Opinion from United States Court of Appeals for the Sixth Circuit appeared first on Goldberg Simpson - Family Law Group.

U.S. Court of Appeals for the Sixth Circuit

A group of foster caregivers brought a class action lawsuit on behalf of themselves and foster care children against the Cabinet for Health and Family Services and Department for Community Based Services for denying foster care maintenance payments to children in the caregivers’ care. The issue was whether children ordered removed to the custody of an adult relative or fictive kin were eligible for foster care maintenance payments under Title IV-E of the Social Security Act. The United States Court of Appeals for the Sixth Circuit held that these children were not eligible for foster care maintenance payments under the Act because the Cabinet does not have placement and care responsibility over children placed into the custody of a relative.

Pursuant to a Title IV-E program of the Social Security Act, states provide Foster Care Maintenance Payments (“FCMPs”) to children removed from their homes and placed in the temporary care of a foster family home. To be eligible for FCMPs, the removed child’s “placement and care” must be the responsibility of… the State agency administering the State plan approved [by the HHS Secretary].” In a dependency, neglect, or abuse proceeding in Kentucky a Court order may remove a child “to the custody of an adult relative, fictive kin,” or other person or facility, or a Court can commit the child to the custody of the Cabinet.

The Cabinet argued that only when a court commits a child to the custody of the cabinet is a “real foster care relationship with a child and the Cabinet” created, and therefore the Cabinet does not provide FCMPs to children placed by the courts into the care of a relative or fictive kin. The plaintiffs argued that placing a child in the care of a relative or fictive kin is the preferred outcome for this child, and that by denying those children FCMPs the Cabinet discriminated against relative caregivers and denied FCMPs to eligible children without notice or a fair hearing. The Plaintiff’s further argued that “placement responsibility” was not simply the discretion to control a removed child’s temporary placement, but instead involves the Cabinet’s duty and ongoing responsibility to ensure the child is placed in a safe living situation.

The district court held that under Kentucky law, the Cabinet did not have placement and care responsibility over children not in their custody because the Cabinet had no ability to change a child’s placement without a court order. Therefore, only children placed in the Cabinet’s custody were eligible to FCMPs. Representatives for the losing classes appealed.

On appeal, the Court relied upon the Health and Human Services Secretary’s briefing in which he stated that, under Kentucky law, “the Cabinet does not have placement and care responsibility for children removed from their homes and placed by court order into the custody of a relative or fictive kin” as the Cabinet “does not assume legal responsibility for the children’s day-to-day care, and it had no authority to change their placements.”

The Appeals Court also relied upon the plain language of Title IV-E, which states that States with an approved plan “shall make [FCMPs] on behalf of each child who has been removed from the home…into foster care if…the child’s placement and care are the responsibility of—the State agency administering the State plan.” The Court found that the Cabinet does not have “placement responsibility” of children not placed into Cabinet custody as indicated by Kentucky law, which provides that the Cabinet cannot change a child’s placement without custody. The Court did not address the Plaintiff’s constitutional due process and equal protection claims because the Plaintiff’s did not make these arguments in their initial briefs.

Digested by Emily T. Cecconi

The post Foster Care Children Ordered Removed to the Custody of an Adult Relative or Fictive Kin Are Not Eligible for Foster Care Maintenance Payments under Title IV-E of the Social Security Act – Published Opinion from United States Court of Appeals for the Sixth Circuit appeared first on Goldberg Simpson - Family Law Group.

• Techniques for direct and cross examination of lay witnesses and psychological and financial experts.
• Strategies for admitting and objecting to evidence.
• Practice guidelines and appropriate methodologies for custody evaluations.
• The use and role of custody and psychological evaluations in a custody case.
• Expert witnesses and trial consultants.
• Relevant IRS Rulings and Professional standards for Business Valuations.
• The elements of a business valuation.
• Valuation of a closely held business interest.

The post Emily T. Cecconi Completes National Family Law Trial Institute Program appeared first on Goldberg Simpson - Family Law Group.

While a father’s legal rights with a newborn are the same as with an older child, it is important to consider the unique circumstances of caring for a newborn when determining what parenting time schedule is in the newborn’s best interest. When developing a parenting schedule for a newborn, parents should consider the baby’s feeding schedule, sleeping patterns, and the ability of both parents to communicate effectively. Research has shown that newborns benefit most from more frequent, consistent, short interactions with both parents.

Each family presents unique facts and circumstances. It is important to consult with an experienced family law attorney to develop a schedule that works best for your child.

The post Are fathers entitled to parenting time with a newborn? appeared first on Goldberg Simpson - Family Law Group.

In Kentucky, all assets acquired during the marriage are presumed to be marital property and subject to equitable division. It does not matter which spouse holds title to a marital asset. Thus, money earned by one spouse during the marriage and deposited into his or her separate bank account is presumed to be marital property subject to equitable division.

There are exceptions when one spouse receives a gift or inheritance during the marriage, when one spouse owned an asset before the marriage, or when commingling of non-marital assets with marital assets has occurred. In these cases, the property titled in the name of one spouse may not be subject to equitable division. This determination can be complex, so it is important to consult with an experienced family law attorney.

The post Impact of title on Property appeared first on Goldberg Simpson - Family Law Group.

Once an EPO is issued, it will be served upon the other party and a hearing will be held, usually within fourteen (14) days. The purpose of the hearing is to determine whether a more permanent Domestic Violence Order (DVO) should be entered, after both sides have had an opportunity to present evidence. If, after the hearing, a judge finds that “domestic violence has occurred and may occur again,” it may grant a DVO.

Once granted, a DVO may remain in place for up to three (3) years and may be extended upon the request of the petitioner. An EPO or DVO may include children and may award temporary custody, temporary child support, and set a visitation schedule.

Unlike an EPO, which opens a legal action when filed, to obtain a civil restraining order, a person must be a party to a separate civil legal action, such as a divorce or child custody case. If such an action has not been filed, a civil restraining order cannot be obtained. While a civil restraining order may include some of the same conditions as a protective order, such as no contact, they do not provide the same protections.

Violations of an EPO or DVO may result in contempt of court or criminal charges. If a violation occurs, law enforcement may immediately arrest the offender without a warrant. Federal law also prevents Respondents subject to a DVO from legally purchasing, possessing, selling or disposing of firearms.

Violations of a civil restraining order do not have criminal penalties. This means that law enforcement cannot make an arrest upon violation. Violations must be brought to the attention of the court by filing a motion asking the court to hold the violating party in contempt. While contempt may be punished by jail time, this rarely occurs.

The post EPO vs DVO vs Civil Restraining Order appeared first on Goldberg Simpson - Family Law Group.

To determine if a debt is marital or non-marital, courts look to the following factors:

(1) who received the benefits for which the debt was incurred;

(2) the extent of participation of each party in incurring the debt;

(3) whether the debt was incurred to acquire assets that are designated as marital

     property;

(4) whether the debt was necessary to provide for the maintenance and support of      

     the family; and

(5) the economic status of each party. Where one party has a much higher earning

     potential than the other, the court may assign the debt to the party who has the

     ability to pay.

The court will consider all the circumstances surrounding the debt, and no one factor is determinative. Thus, the division of debts is often complex, and it is important to consult with an experienced family law attorney.

The post Are all Debts Marital? appeared first on Goldberg Simpson - Family Law Group.

In certain circumstances, such as when an adult child is disabled, child support may continue past the age of 18 (or 19 and still in high school).

If the support obligation is for more than one child, the obligation will not automatically terminate when one child reaches the requisite age. In these situations, the parent with the child support obligation must request a modification of his or her obligation.

There are many potential exceptions to the rules provided above and it is always important to discuss the facts specific to your case with a family law attorney.

The post When do I Stop Paying Child Support? appeared first on Goldberg Simpson - Family Law Group.