Lexington Family Law

There is an interesting post at Elusive Justice about a practice by the Cabinet for Health and Family Services involving parents who think they are voluntarily terminating their parental rights, but then have an involuntary termination entered against them. This may seem like an immaterial difference, but E.J. walks us through a hypothetical that shows the important ramifications of the practice.

After reflecting on the recent decision in J.N.R. v. O’Reilly that I posted on here and here, I recognized a troubling conundrum in the law. I will expound with a hypothetical situation beginning where the JNR case leaves off. Absolutely no offense is intended towards the real parties in the real JNR case; this is purely hypothetical:

Where the real case leaves off is with biological father (”BioDad”) unable to get any relief because the trial court has no jurisdiction to proceed. In the hypothetical, the legal father (”LawDad”) has to work two jobs to pay the legal fees that accrued defending against BioDad’s petition and the ensuing appeals. Because of the stress of this, he develops a drinking problem and becomes estranged from his wife. A divorce occurs and biologcial mother (”BioMom”) gets sole custody. BioMom becomes depressed and, as a result of deep depression, neglects the child (”Child”). Child is removed by the Cabinet for Health and Family Services after being found wandering along a busy highway after sneaking out of the house while mom was in a depressed stupor. The Cabinet dutifully seeks out a relative to care for Child, but the only known relative is LawDad whom they find passed out on his front porch after a night of drunken debauchery. Because of LawDad’s double D dysfunction, he cannot have the child placed with him or gain custody.

Now, the stage is set and Child goes into foster care. Because BioDad was denied the opportunity to assert paternity, he has not been judicially found to be a parent. KRS 610.020 requires the Petition to name “parents”, but BioMom and LawDad are still sore about the whole lawsuit thing and never bring BioDad up. Furthermore, KRS 610.040 does not require that he be notified. So, Child is in foster care for the next 15 months because BioMom and LawDad are more focused on sniping at each other than regaining custody of Child.

Next, the Cabinet files a petition for the involuntary termination of parental rights of BioMom and LawDad on behalf of Child. Still, the Cabinet has no idea about BioDad because they never read this blawg and are unfamiliar with this case. Interestingly, KRS 625.060 requires that “biological parents” are made parties to the action, but only “if known”. Here is where the hypothetical has different possible outcomes.

Outcome 1: Parental rights are terminated to BioMom and LawDad and Child spends the rest of his childhood going from foster home to foster home, or perhaps is adopted and lives happily ever after, but always dreams of being with his “real” parents. BioDad sees him years later with the adoptive family and finally learns of all those events, but he can do nothing. In the worst case scenario, adoptive parents are actually sadists bent on mentally torturing Child. Best case scenario is that they are great parents and is relatively unharmed by all these events.

Outcome 2: BioDad finds out and moves to intervene in the termination of parental rights. Now, we are back at the starting point and the court has to determine whether he has standing to intervene under this separate set of statutes. Arguably he would have standing because the statute specifically mentions “biological parents”. This, then, is a huge inconsistency in the paternity laws of kentucky. Regardless, he still has a huge hurdle to overcome because the termination of parental rights statute, KRS 625.090 has no safe harbour provision that would protect BioDad due to his lack of knowledge of the events. In other words, neglect or abuse never has to of been alleged against BioDad. The statute is a list of events, sometimes totally out of the control of the parent, and if one and only one of these events are checked off, then termination can occur. BioDad could be the best dad in the world, but if Child was found to be neglected by clear and convincing evidence, has been in foster care 15 out of the last 22 months (even if it is the Cabinet’s fault for not having enough workers to move the case along), and the judge believes it is in the child’s best interest (purely subjective), then his parental rights could be terminated without him ever getting to exercise them.

Give the above scenario, as unlikely as it is, I have had to reflect on the JNR decision because of the far reaching consequences. I hope that the General Assembly will take up this issue to rectify this legal inconsistency.

There are a number of lessons to be learned from the recently released Kentucky Court of Appeals case Mickler v. Mickler, 2006-CA-001313-MR (Jan. 25, 2008)(to be published). A few of the lessons come from the procedure and facts of the underlying case rather than the appeal itself.

In Mickler, some affluent folks, Andrew and Terry got divorced. Andrew was an otolaryngologist who made in excess of $200,000.00 per year. The first lesson is that the harder it is to pronounce what you do, the more you will likely be paid. At the time of the divorce, Terry was 53 years old and had not worked outside the home for the duration of the twenty-two year marriage. The trial court awarded Terry $111,809.03 for her share in Andrew’s medical practice, half the proceeds from the sale of the marital residence and another piece of property, her car, and over $400,000.00 in retirement funds. In addition, Terry was awarded $7,000.00 in monthly maintenance for 12 years (that’s $1,008,000.00 for my fellow coupon clippers).

The second lesson is that if you are married to a highly paid professional, it pays to not pursue your own career. Actually, this is not a hard and fast rule because the majority of Kentucky appellate cases where long-term maintenance is awarded involves some form of disability on the part of the receiving spouse. I would consider this situation a gray area regarding maintenance for two reasons. First, being 53 is not really a disability although it can be more difficult to obtain gainful employment at that age without relevant experience. Second, Terry received considerable assets in the divorce. To receive maintenance, you must show that you cannot meet your reasonable living expenses and your standard of living only comes into play after crossing that initial hurdle.

Arguably, Terry could meet those reasonable living expenses (and even some unreasonable ones) with the assets distributed to her. Here though, the trial court seemed to define Terry’s reasonable living expenses by her prior lifestyle which is a bit of circular logic. If the legislature had meant for all divorced folks to maintain their prior standard of living, then they would have made the initial hurdle “lacks sufficient property . . . to provide for his standard of living established during the marriage” instead of “reasonable needs“. KRS 403.200.

I suspect these apparent errors by the trial court encouraged the filing of the appeal. Here is where the third lesson came into play. Because Andrew (actually his attorney) failed to file a supersedeas bond to stay the execution of the trial court’s orders pending the appeal. The lesson is that if you think the court messed up, be sure to do all you can to put those orders on hold while you appeal. Because Andrew did not do this, but also did not pay up, Terry filed a motion to hold him in contempt. Andrew responded with filing bankruptcy to get the stay on collection proceedings offered there.

Here is where Andrew made yet another mistake. He withdrew $64,000.00 from his checking account (I would never have another overdraft!) without disclosing this fact. That tends to be a no-no regardless of whether you are in Family or Bankruptcy court. Fortunately, Andrew was able to make a deal with Terry for temporarily reduced maintenance during that first appeal.

The Court of Appeals upheld the trial courts original order (well, I said it was a gray area - not clearly erroneous) and Terry came back with a second contempt motion. Andrew responded with yet another bankruptcy petition. This was the next mistake (sorry, I’ve lost track of how many) because this petition was quickly dismissed because (can you guess it?) the petition was filed for the purpose of avoiding compliance with the Family Court’s orders. The Supreme Court of Kentucky also turned down discretionary review of the divorce decree. Things just were not going well for Andy at this point.

Sensing that Andrew was on the ropes, Terry filed garnishments on various insurance carriers thought to owe funds to Andrew’s medical practice. That is where this particular appeal finally comes into play: click here for the rest of the story!

Tragic circumstances underlay the Court of Appeals opinion in Zoeller v. Gutterman, 2006-CA-002141-ME (October, 26, 2007)(to be published), where grandparents fought over visitation rights. Mrs. Gutterman and Mr. Gutterman had been married and conceived two children during their twelve year marriage. One of those children was Ashley.

Ashley, at age 15, gave birth to a son in 2000, about eight years after her parents divorced. She subsequently agreed for her mom, now Mrs. Zoeller, and step-father to be the court appointed guardian for the child in 2002. Sadly, Ashley died in 2004. Mr. Gutterman, Ashley’s dad, filed a petition for grandparent visitation under KRS 405.021. Unbeknownst to Gutterman, The Zoellers had filed a petition to adopt Ashley’s son. The adoption was granted prior to the visitation and so the Zoeller’s argued that he now had no standing to seek visitation since, legally, the child was no longer his grandson. The Court does not provide the whole background story, but I suspect there was such bad blood between the former Mrs. Gutterman and her ex-husband, that when Ashley passed away, they refused to continue the weekly visits she had with her father where her baby went along and visited too.

A Guardian ad Litem was appointed for the young lad and the G.A.L. recommended visitation begin immediately for Gutterman. This was granted, but the Zoellers, obviously not fond of the ex-husband, filed a Writ of Prohibition to stop the visits from commencing. This was granted and aspects of the case went on up to the Supreme Court of Kentucky. The Supremes said that the Family Court did have subject matter jurisdiction, despite the Zoeller’s argument to the contrary, but that the Family Court must have an opportunity to determine if Gutterman had standing due to the intervening adoption.

After holding an evidentiary hearing, the Family Court found Gutterman had standing and that it was in the child’s best interest to have visitation. This really ticked off the Zoellers and they “zealously pursued their contention” that Gutterman had no right to pursue visitation. Id. at 4.

The Court reviewed the Kentucky jurisprudence and history of KRS 405.021 noting that it has been found to be constitutional and designed to address the concerns of increasing divorce rates, increasing pregnancy among unmarried persons, and the increasing mobility in modern society. Furthermore, as long as the grandparent is not deranged or otherwise unfit, they tend to have a special bond with their grandchildren that is mutually beneficial. One later case, Hicks v. Enlow, 764 S.W.2d 68, 71 (Ky. 1989), distinguished stepparent adoption from non-stepparent adoption in that termination of parental rights in non-stepparent scenarios severed all family connections so that grandparents could not have visitation rights.

Kentucky’s General Assembly considered the Hick’s result too harsh and modified the statute to preserve any pre-existing visitation rights granted by a court of competent jurisdiction. In this case, though, no such court order had been entered giving Gutterman those rights. Also, though, in this case there was no involuntary termination of parental rights. Essentially, the Court slapped the Zoeller’s wrists (and their lawyer’s) for failing to make the Family Court for the adoption aware of the pending visitation litigation. They quoted the Family Court in saying:

Had the Court been aware that there was an adoption proceeding pending in one courtroom and a grandparent visitation action pending in another, the adoption would have been postponed pending the outcome of the grandparent visitation hearing or the visitation issue would have immediately been scheduled for hearing. As an adoption proceeding is usually unopposed, it would almost always be concluded before a contested visitation hearing. This Court does not believe the intent of the General Assembly was to allow one party to deprive another of such a substantive right as continuation of a familial relationship by knowingly manipulating the justice system in this way.

Goodness, Mrs. Zoeller sure must have harbored intense feelings towards her ex-husband. Turns out that they both had abused either alcohol or drugs during the marriage and there was domestic violence perpetrated by Gutterman. Fortunately for Ashley’s child, Gutterman had apparently reserved his hostilities for his wife during their marriage and he managed to form a decent relationship with both Ashley and her child. Ultimately, preserving this bond, especially in the face of Ashley’s death, was seen as in the best interest of the child.

Lessons learned: 1) Say no to drugs and alcohol - their effects can be lasting, 2) Be forthright with the court, even if it appears to hinder your goals in the short-run, 3) Marriage often does not last forever, but divorce sure can, 4) Bitterness is expensive.

Stan Billingsley (Lawreader) recently wrote an editorial regarding Kentucky’s class action rule (CR 23) which can be found here. While not on point to the aspects of CR 23 that Stan addresses, here is an article on the history of class actions in Kentucky and comparison with the impetus for passage of the Class Action Fairness Act of 2005. For lovers of legal history, this would be an enjoyable read and would provide a fuller context to the discussion of class actions in general. Here is the link: Kentucky Class Actions