Lexington Family Law

A recent decision by the Kentucky Court of Appeals, Hoppe v. Tallent, 2007-CA-00104-MR (March 7, 2008)(to be published), highlights the deference given to trial judges in family law cases. A solid review of this case can be found here at the Divorce Law Journal. Very briefly, Hoppe was denied visitation with the daughter he had with Tallent due to allegations made that he sexually abused her.

Six mental health professionals had been involved with the case over the span of years, but only the final therapist recommended no visitation. All the other mental health professionals recommended some level of visitation. Despite the professionals being 5 to 1 in favor of visitation, the trial court denied any form of visitation for Hoppe with K.H. The Court of Appeals upheld the trial judges decision because great deference is given to the “trier of fact”. This is based on the notion that the trier of fact is in the best position to ascertain the credibility of witnesses (a notion that may be a bit antiquated with video taping of trials). So, the denial of Hoppe’s visitation remained in place.

The real lesson in this case, though, lies in what the Court of Appeals signaled in its commentary. They expressed concern that the child had been coached by her mother to make up the allegations (an element in what some experts call “parental alienation syndrome”) and noted that no criminal charges had been pursued against Hoppe. The also highlighted that the first 5 mental health practitioners said visits should occur and speculated that the trial court went with Sutton, the one therapist to advocate no visits, merely because she was the last one to see the child even though she “stumbled mightily when queried about her education and may have counseled only a handful of children during her six years in private practice . . . .” Id. at 16. Lastly they came as close as they could to encouraging Hoppe to obtain new psychological evaluations of the child (and presumably the parents) and file a new motion to re-start visits. So, the real lesson is to go into highly contentious custody and visitation battles as prepared as possible.

This kind of preparation, obtaining current expert witnesses and evaluations, can be very expensive on the front-end. Perhaps in Hoppe’s situation, the cost of such experts was prohibitive. However, because it is unlikely to get a trial judge’s decision overturned in these sorts of matters, it is better to incur those expenses, if one is able, at the trial level instead of on an appeal.

A story out today revealed that Heath Ledger’s minor daughter, Matilda Rose, was not included in his last will and testament. The will was drawn up before Heath had any children and left everything to his parents and three sisters (Herald-Leader story from March 11, 2008 on page A2). Heath’s immediate family issued assurances that Matilda Rose would be provided for. If I were advising Matilda Rose or her mother, I would express my appreciation, but I would point out that many states have statutes (and common law) covering “pretermitted heirs”. A pretermitted heir is a child who was accidentally or inadvertently omitted from a will. That describes Matilda Rose. I have not looked up the statute or common law in New York where Heath’s will would be probated, but it most likely has such a provision protecting pretermitted heirs. Therefore, I would insist that she receive the inheritance due to her. In many states with there being only one child, that may be the entire rest and residue of the estate (roughtly everything except for specific gifts to particular persons). Hopefully, Matilda Rose’s mom, Michelle Williams, will obtain legal counsel that will point this out to her.

If I had been advising Heath Ledger, I would have talked to him about having a will that covered many contingencies. One of those contingencies would have been the likelihood of having children and how he wished they were to be treated. Generally, even if a person has no children, it is wise to draft the will as though he or she would have them before they die. This would even be true for elderly persons because of the possibility of adopting a child. One can disinherit their children or a specific child, but to do so requires a provision drafted to address this particular wish rather than silence. It is important to carefully approach such an action and never disinherit a child lighlty because of both the moral consequences of such an action and because of the possibility of a court reforming the will under a few different doctrines.