The trial court is no democracy

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.