Lexington Family Law

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.

The Kentucky Court of Appeals addressed the issue of whether a parent with sole custody can reach into the other parents visitation time and direct that the child attend a specific church service. The Court in Wireman v. Perkins, 2006-CA-001981-ME (July 13, 2007)(to be published) found that “statutes like KRS 403.330 as according custodians, such as Wireman, the right to make the major decisions affecting the child’s education and religious training, but not as authorizing them to interfere permanently or unduly with the non-custodian’s visitation.” Id. at 5 & 6.

In this case, David Wireman had been awarded sole custody of his daughter, J.W. who was born in 1996. The original award had been for joint custody, but the mom, Lori Perkins, developed a bit of a drug problem and lost joint custody. Mom still had “reasonable” visitation, but apparently David and Lori could not agree on what reasonable meant from 2003 to 2005 when the trial court decided that it meant one evening a week and every other weekend. The Court notes that the parties were back in court SEVERAL times from November 2005 until September of 2006 making complaints of non-compliance on visitation. Apparently Lori, David or both disagreed with the trial judges definition of “reasonable” also.

In his bid to make Lori take J.W. to Fern Creek Christian Church, David relied on KRS 403.330 which states in part:

[e]xcept as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including h[er] education, health care, and religious training, unless the court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical health would be endangered or h[er] emotional development significantly impaired.

The Court distinguished David’s demand for J.W. to go to his church EVERY weekend from prior cases that required the non-custodial parent to temporarily alter their visit for religious classes of a short duration. In this case, the burden upon Lori’s time share would be too great if she were ordered to take her daughter to David’s church every weekend and so the Court denied David’s appeal. David will simply have to find an alternate way of teaching his daughter about the love, forgiveness, peace and mercy of Jesus Christ then by dragging her mother into court and spending a great deal of time and money on the conflict in trying to control what the mom and daughter do during their visits. Does anyone else see the irony here?

The practical lesson from this case is for divorced, divorcing or separated parents to recognize that one cannot control every aspect of their child’s life anymore. Actually, one never could fully control their life, but the illusion of control is definitely shattered in these situations. Staying in turmoil and conflict with your child’s other parent will accomplish little than more pain. So, be very careful that the issue is important enough, find a lawyer that will help you discern this rather than automatically taking your case (and money), and then try to resolve it out of court first. Many issues will not be worth going that next step to court. Finally, setting an example by your behavior of the beliefs you want your child to adopt will, by far, be the most effective method of parenting.

Divorce is both the result of unresolved disappointments and resentments and the source of terrible desires for revenge. Thus, it is common for people to try and exact revenge through the courts. Common, but not particularly beneficial to any party. The Court of Appeals reminds us on this in their unpublished decision, Hollis v. Hollis, 2005-CA-000770-MR (June 1, 2007). The Court states:

“While we do not now find that John should be directed to show cause why he should not be sanctioned, we give fair warning that this Court is not to be used as a tool to frustrate the peaceful resolution of a broken marriage.”

Mr. Hollis apparently had a penchant for filing pro se motions attacking everything from the refusal of the trial court to give him a videotape of the proceedings to an attempt at trying to force Ms Hollis to return unspent child support.

So, a word of free legal advise. Let Mr. Hollis teach you if you are contemplating or undergoing divorce and talk to a counselor or scream at a pillow and leave such acts of retribution out of the courtroom. Do not expect satisfaction from the judicial process in a divorce; the court just forces a resolution in the most efficient manner it knows.

Occasionally I am asked why I refer to myself as a Counselor at Law rather than Attorney. It is a sublety that most miss, but it actually encapsulates a key philosophy to my practice. An Attorney is an agent. They go and do what they are told to do by the principal. I remember going to an attorney in my prior life over an employment issue. I really needed to understand what was happening, but this highly recommended attorney told me very little. I later realized that this was because he either: 1) did not know what he was doing so stayed silent to look wise, or 2) said very little to minimize any liability on his part.

Anyway, he went and did what I asked him to do, but I was very dissatisfied with the process because I felt very much in the dark most of the time. I mean for my clients to feel informed. This is one thing a counselor does. They help you understand what you are going through.

Secondly, a counselor counsels. In my example above, I sought wise counsel as well as understanding. This is because I was faced with something outside of my experience. I recognize that it was ultimately my decision to make as to whether or not to pursue the matter, but I needed at least some rough estimates about the expected outcomes would be depending on my decision. So, as a Counselor at Law I take the risk I believe I believe my profession calls upon me to take to explain options and the likely outcomes of each.

We are coming down to the final stretch of the school year, but it is still possible to end up at court for habitual truancy. Under Kentucky law, if a student misses more than 3 days of school (consecutively or not) without an excuse, then that child is truant. If this happens more than once (meaning more than 6 unexcused absences) then that is habitual truancy.

Also under Kentucky law, the parent is held responsible for the child’s crime! The penalties range from $100 to $250 in fines. Here is a list of acceptable excused absences for Fayette County:

Death or severe illness in the pupil’s immediate family;
Illness of the pupil:
After a total of ten (10) cumulative full-day absences due to illness, students are required to present a written statement from a medical professional (doctor, dentist, psychologist, etc.) for each additional absence for the school year in order to be excused.
After a total of ten (10) cumulative tardies due to illness, students are required to present a written statement from a medical professional (doctor, dentist, psychologist, etc.) for each additional tardy for the school year in order to be excused.
Religious holidays and practices approved in advance with the Principal;
Medical and dental appointments (times and dates shall be verified by the physician’s signed statement);
Students will be excused only for the length of time of a scheduled doctor’s appointment and a reasonable amount of travel time. Doctor’s excuses shall state the date(s) and/or number of days for which the student will be excused.
Family emergencies requiring immediate attention are limited to three cumulative absent events per school year. Additional absent events must have the approval of the Principal to be excused. (An absent event is defined as tardy, half-day, or full-day absence.)
One (1) day for attendance at the Kentucky State Fair per Kentucky State Law;
Three (3) visits to colleges or universities approved in advance by the Principal and restricted to seniors. Documentation from the college visited will be required;
Court appearance requiring the student’s attendance. Students will be excused only for the length of time of the scheduled court appearance; or
Documented military leave;
One (1) day prior to departure of parent/guardian called to active military duty;
One (1) day upon the return of parent/guardian from active military duty;
Up to ten (10) school days to pursue an educational enhancement opportunity determined by the Principal to be of significant educational value. This opportunity may include, but not be limited to, participation in an educational foreign exchange program or an intensive instructional, experiential, or performance program in one (1) of the core curriculum subjects of English, science, mathematics, social studies, foreign language, and the arts.

Other valid reasons as determined by the Principal.

Multi-millionaire founder of the “Girls Gone Wild” video series, Joe Francis, appears to be reaping some of what he has sown. Check out this post by Lowering the Bar.

Here is some good, basic information about jury duty at Lawreader.com. Serving on a jury is a crucial part of the American justice system.

Check out the prayer here.

Dr. Ananthi Jebasingh, Founder and Director of The Good Samaritan Schools in New Delhi, India will be speaking in Lexington this Thursday, March 1, 2007, at our offices at 4740 Firebrook Boulevard. The event begins at 7:00 PM and will be followed by a dessert reception. It is hosted by Dale Ditto, Tim Philpot, and Mike Troutman.

The Good Samaritan Schools are dedicated to providing education, nutrition, and medical care to underprivileged children from Delhi’s slum communities. Since 1989, when Ananthi took the first child into her home, The Good Samaritan Schools have educated over 7,000 impoverished children.

Legislation has been introduced in Kentucky to create a super-marriage or Covenant of Marriage. Here is a summary of the bill:

Create new sections of KRS Chapter 402 to provide the option for couples to enter into a covenant marriage; provide that a couple may designate a covenant marriage when applying for a marriage license or after marriage; require authorized counseling before entering a covenant marriage; define “authorized counseling”; establish the procedure for declaring a covenant marriage; require marriage license and certificate to indicate if the marriage is a covenant marriage; provide limited grounds for dissolution, legal separation, or divorce from bed and board, including a requirement of authorized counseling before divorce in a covenant marriage; require the Human Resources Coordinating Commission of Kentucky to develop an informational pamphlet regarding covenant marriage; amend KRS 402.100, 402.230, 403.025, 403.044, 403.110, 403.140, 403.150, and 403.170 to conform.

First, let me explain that I made a decision in representing divorce cases to limit my client base by about 1/2. I believe in the sanctity of marriage and do not wish to facilitate divorce as a means of relieving so many of the normal difficulties of marriage. To that end, I will represent those responding to a divorce petition filed, assist in legal separations, and represent those seeking to begin a divorce only under certain circumstances. This is a very counter-intuitive, principle base stance in the area of family law (I call it family law rather than divorce law because there are still many areas of practice touching on the family other than divorce).

That being the context, I am not in favor of the Covenant of Marriage legislation proposed. I see it as superfluous. Those having the religious conviction that would draw them to a Covenant would already be making a covenant before God. Everyone else will opt for a regular marriage. I would suspect that some would pressure their partners into a covenant marriage: “If you really loved me you’d agree to the super-sized marriage.” This would start things off on an uneven foot. I can even imagine horrible discussions at dinner parties and bible studies: “Oh, did you hear that Marge and Bill only got a regular marriage.” “Marge, the poor dear - doesn’t she realize he is just waiting to upgrade in a few years.” Introductions would be awkward. “Pastor, I’d like to to meet my wife . . . oh, well, uhm, no - she’s not my covenant wife - just a regular one.”

Then there’s the jurisdictional issue. If you get a covenant marriage in Kentucky and then move to California, what law prevails. A divorce action is one where the court has jurisdiction of the marriage itself, so unless California wanted to honor a Covenant Marriage, then the plain old divorce would suffice.

Mainly, it is my believe that legislation should reach only so far into one’s life. Many spiritual beliefs and religious convictions should remain with the church and between an individual and God and not become law. I agree that people should be open with their prospective spouse, engage in pre-marital counseling, and take it seriously when they marry. I agree that counseling should be sought to resolve conflict leading to a divorce and that one should try other steps including legal separation for a year or more prior to taking that final step to divorce. I do not believe the state should be in the business of regulating those behaviors and choices.

I am sure proponents would say that the state is not regulating it absent the choice of the parties agreeing to the covenant. That is true to an extent - however, we are talking about human beings who develop and change over the decades of their lives. They are not businesses where we can entirely reduce things to contract law. No, it may be chosen to the best of their knowledge at the moment when the hormones are flowing and no one is truly sane. But, decades later, it is the state going too far in regulating what amount to religious convictions.

Here’s the bill: Covenant of Marriage.