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Grandparents’ rights: custody and visitation

I have come across situations recently where parents were surprised by legal stances the grandparents (their own parents) took regarding their children. In one situation, a young parent went to college to make a better life and was not at a point where he/she embraced the obligations of parenthood. The parent and grandparents agreed that her young child would stay with the grandparents for extended periods of time with the understanding that the child would return to the parent once school was completed. Another situation involved grandparents, who had liberal visits with the grandchild, threatening litigation to ge more visits when the child was grounded for a time.

Common to both situations was the shock by the parents over the standing they discovered the grandparents had to solidify their position in the child’s life legally. This information is not intended to take the side of parents or of grandparents, but simply to educate people about unintended consequences of decisions they make regarding their children and grandchildren.

Kentucky, and many other states now have provisions for establishing a de facto custodian standing by persons, often grandparents, who provide extended care for a child. The exact criteria for Kentucky can be found in KRS 403.270. Basically, if a person other than a parent is the primary care provider and financial supporter of a child for a certain amount of time, courts are to give them equal consideration as the parent in custody determinations. There are more complicated aspects to this law and it interacts with other custody laws, but the basic idea is that if a parent leaves a child in the care of a grandparent (or other person) for six months (children under 3 years of age) or a year (children 3 or older), then that care provider may gain rights to that child that equal that of the parent. It is unlikely that even written agreements to the contrary would alter that standing, and verbal agreements certainly would not prevent this legal standing from coming into being.

Similarly, Kentucky and many states have statutes that appear to grant visitation rights to grandparents. In Kentucky, the statute is KRS 405.021. This law turns out to be weaker than the de facto custody law because of U.S. Constitutional concerns so it is less likely that a grandparent could get a court to force visitation with a grandchild over the reasoned objection of the parents. However, it does open the door to grandparents filing suit in court which can be an expensive and conflict ridden experience.

For parents contemplating using someone, like a grandparent, for extended child care, you should consult with a family law attorney regarding the specifics and the risks involved. For grandparents who are care providers and concerned about losing that status and the wellbeing of your charge, consult a family law attorney with the specifics to see what standing you may have. Although potential legal actions exist, it is best to work out visits between grandchildren and grandparents with reasonableness and the interests of the child in mind.

July 21, 2008 Posted by | child custody, Family Law, Parenting | , , , , , | 54 Comments

Voluntary versus Involuntary Termination of Parental Rights

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.

May 15, 2008 Posted by | Civil Procedure, Family Law, Parenting | , , , , , | 52 Comments

Time-sharing guidelines


I was recently asked by a reader about what kind of time-sharing he can expect with his daughter. He and the mother never married and he believes the mother is exerting excess control over his contact. I am uploading the Fayette County time-share guidelines as an example of typical time-sharing. If you open it and go to the end, you will see enhanced time-share for children under two years of age. This is a tiny step towards developmentally sensitive time-sharing. I am a proponent of developmental time-sharing and I hope to see these standard guidelines continue to move in that direction.

It is interesting to note, KRS 405.020 assigns joint custody to parents of a child as the default. A father of a child born out of wedlock starts out with joint custody as a matter of law. Mother’s tend to assume they have sole custody straight from the chute since they effectively have it during the pregnancy. In reality, the father gains custody at the moment of birth. As a practical matter, though, he must be able to show he is the father. This is either by birth certificate naming him as the father or a judgment.

May 14, 2008 Posted by | child custody, Family Law, Parenting, Paternity | , , , | 2 Comments

Paternity Pandemonium III

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.

May 14, 2008 Posted by | Civil Procedure, Divorce, Family Law, Parenting, Paternity | , , , | 1 Comment

Paternity Pandemonium II

I wanted to post a brief follow-up to Paternity Pandemonium. Mr. Rhoades wrote a comment to that post that I encourage everyone to look at. I also wanted to link to TIME online article “Despite DNA, Dad’s Paternity Denied” that was provided to me by a reader. The article does not quite get the nuances of the law correct, but it gives more of the history and highlights the two broad views of this issue.

One camp is the Biology is Paternity camp which, in its extreme, denies any meaning of marriage in regards to children born during the marriage. Here, if one donates DNA, then some legal right is deemed to have arisen out of a single moment despite violating something every culture recognizes and values – a marriage. Usually in our jurisprudence, one does not get the benefit or gain from doing something wrong. However, we have decriminalized adultery and seduction while also turning to no-fault divorces. So, those in this camp would argue, there was no “wrong” done here in the eyes of the law and the courts should not be moral arbiters of such sexual behavior. Besides, the argument proceeds, it is not about punishment or equity, it is about a new life and what is best for that child.

The other camp would be the Sanctity of Marriage camp which, in its extreme, denies a biological father any standing to be in his child’s life. Here, the argument focuses on the preservation of the marriage and the assumption is made that the ongoing presence of the biological father will destroy what is already tenuous. Some would argue that the child should never know his genetic origin because it would be harmful to know he or she is the product of an illicit affair only creating an insecure sense of his or her place in the family.

As a father, I know I would not want to be denied contact with a child I fathered. As a husband, I understand protecting my family from those outside. This is why the SCOKY decision ultimately rests on the wording of a statute. Those of that opinion pulled into the safe harbor of avoiding the appearance of judicial activism by focusing on the exact language of the relevant laws. By doing so, they essentially said, this is a matter to be decided by the people through their representatives in the Kentucky General Assembly. That is where this debate really belongs.

Mr. Rhoades plans to appeal to the U.S. Supreme Court, but I will be surprised if he wins. This is because the Kentucky decision is about subject matter jurisdiction and not about whether Mr. Rhoades is the biological father or not and the U.S. Supreme Court will most likely defer to the power of the State to determine such things. So, only the General Assembly can change the outcome for future Mr. Rhoades.

As for me, the one thing I am confident of is that our judicial system should not be morally mute and that there is basic right and wrong outside of the confines of our laws (there are varying degrees of judicial activism and I believe it should be constrained to areas where statutory laws are silent). I also tend toward the Sanctity of Marriage camp and believe that the marital union, which remains a spiritual union and not merely a civil matter in my mind, trumps biology. My hope for Mr. Rhoades is that he recognizes and atones for the damage he did by participating in an extramarital affair. My hope for baby JAR’s parents is that they are convicted that JAR’s interests are paramount and wrestle with whether denying him his biological father serves those interests best. I doubt that would be the wisest course of action, but the burden is upon them to arrive at the decision. I have these hopes because even though I believe that courts have moral authority where statutory law is silent, the most just results are often found outside the courtroom and they often come out of humility rather than force.

May 1, 2008 Posted by | Family Law, Parenting, Paternity | , , , , , , | 7 Comments

Paternity Pandemonium

A recent Kentucky Supreme Court (SCOKY) case has created quite a stir in the webdom. In J.N.R. & J.S.R. v O’Reilly, 2007-SC-000175-MR (April 24, 2008)(to be published), SCOKY rebuked a man’s attempt to establish that he was the biological father of a child born in the marriage of the appellants. Apparently everyone is this case has a first name starting with J and a last name beginning with R, so this might get a little confusing. Here is the scorecard: JGR is the man trying to establish that he is the biological father and obtain a custody status, JAR is the child in the center of the contest, JNR is the mother/wife, and JSR is the legal father/husband.

JNR and JSR are married when JAR is born giving rise to the presumption that JSR is the father of JAR. JGR apparently engaged JNR in an extra-marital affair and believed he was the biological father of JAR. JGR apparently had DNA evidence that proved him to be the bio-dad and he had even had some visits with JAR. Despite the injury to the marriage, there was apparently some mighty powerful affection remaining and so JNR and JSR wanted to make a go of it and did not want JGR interfering. JGR, displaying persistence that would be admirable in other circumstances, filed a petition in Jefferson Family Court to establish paternity, custody and support. The family court allowed the action to proceed and also ordered some time-sharing. JNR and JSR filed a Writ of Prohibition with the Kentucky Court of Appeals (COA) and then with SCOKY when the COA failed to issue the writ.

A Writ of Prohibition is an action that can be taken when a lower court is about to do something that they really have no business doing (lack the legal authority to do) OR will cause irreparable harm to one or more of the parties if they are allowed to do it anyway. In this case, if JGR was allowed to establish a psychological bond with baby JAR, who was 3 months old, then there would be no way to undo it without additional harm to JAR. If JGR was allowed to establish paternity, then arguably, irreparable damage would be done to the marriage. The COA refused to issue the writ to stop the paternity proceeding because JNR and JSR failed to show irreparable harm to the marriage, but they did stop the visits. JNR and JSR then took their Writ to SCOKY who granted it and stopped everything.

JNR and JSR had a pretty smart lawyer who argued that the Family Court was acting OUTSIDE its authority and thus no irreparable harm showing was necessary. The reason that SCOKY gave for issuing the Writ of Prohibition on the paternity action was that the Family Court lacked subject matter jurisdiction to hear the case. In other words, SCOKY agreed that the Family Court was acting outside its authority. This is significant because the decision, arguably, stands on statute alone and not on potentially shifting public policy. So, the Kentucky legislature would have to pass new legislation granting family courts jurisdiction in such a situation (unless a challenge to the existing statutes’ constitutionality is brought and won which is doubtful). The decision also suggests that even if the mother had initiated the action, the legal father/husband (or vice versa) could stop the matter from ever being heard unless they could establish that the marital relationship had ended (at least show no sex) ten months prior.

The case itself provides a more in-depth analysis of the statutes in play, but for our purposes, the whole thing turns on the use of the phrase “born out of wedlock” in the jurisdictional statute KRS 406.051. A child born to a married woman can be “born out of wedlock”, but only with a showing that the marital relationship ceased to exist ten (10) months prior to birth of the child. JGR failed to make a showing that JAR was born out of wedlock. Kentucky’s KRS 406.051 does differ from the 1960 Uniform Act on Paternity by narrowing the definition. This evidences the public policy espoused by the General Assembly for the protection of the marriage over those of the contributor of chromosomes. This public policy has shown signs of shifting in recent years coinciding with the more accurate DNA testing as compared to simple blood typing from decades ago.

SCOKY also rejected the argument that subject matter jurisdiction could arise fromt he KRS 403 chapter governing the dissolution of marriage and child custody. The bottom line is that producing a child with a married woman gives a poor prognosis for establishing paternity and is an inadvisable course of action in any circumstance.

April 28, 2008 Posted by | Family Law, Parenting, Paternity | , , , , , , | 6 Comments

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.

March 16, 2008 Posted by | Family Law, Parenting, Visitation/Time sharing | , , , , , , , | Leave a comment

Sole custodian’s rights to direct religious training

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.

July 14, 2007 Posted by | Family Law, Life & Law, Parenting | Leave a comment

Parenting challenging children:

In my former careers as an outpatient therapist for children and then during my years doing child protection for the state, I learned that there is no one formula for behavior management that will work for every child. It is unfortunate when a person new to the social services and clinical fields have educated themselves and focused on a particular theory and technique to the exclusion of others. This is because it is easy to presume that if a parent claims to have tried the technique, but the child continues to act out, then the parent must not have been compliant. Sometimes this is true, but often it is that the particular technique simply had no impact on the child. Rather then question the technique or theory, it is easy to blame the parent.

So many factors effect childnren’s behavior. Having three daughters of my own, I know that each is born with their own biological strengths and weaknesses as well as different personalities and mental/emotional constitutions. The same discipline does not work with each.

Also, environmental circumstances affect children in different ways. For example, going through a divorce presents stresses on everyone involved, especially children who lack the adult experiences to know how to cope with their lives being turned upside-down. This stress can present as withdrawal when a child internalizes their emotions or it can present as behavioral problems when the emotions are externalized. Neither coping strategy, in the extreme, is healthy.

The only thing professionals can really say for certainty is that one must have a variety of techniques and stategies to try. Even when you find one that works, a few months down the road, it may no longer be effective and you will have to pull another parenting tool out of the tool box. To that end, I found this ticket system propounded by John Rosemond to be a great tool to have handy. He points out in this article that basically well behaved children respond to time out, while unruly children do not. In my 15 years of working with children, I found that to be very true. I have quoted the heart of John’s system in case the article cannot be accessed:

    Tickets can either supplement time-out or substitute for it. You’ll need a magnetic clip, three to five “tickets” cut from colored construction paper and a list of no more than five problem behaviors, as in “refusing to do what I tell you to do,” “ignoring me when I speak to you,” “yelling at me when I do not give you what you want,” and the like. For pre-readers, simple drawings can substitute for word descriptions, but if parents are consistent with enforcement, this isn’t necessary.

    The method is simple enough for most 3-year-olds to grasp, but with children younger than 42 months, I recommend starting with one “target” behavior and five tickets. When the initial misbehavior is under control, a second can be added to the program. The target behavior(s) are posted on the refrigerator. The tickets are put in the magnetic clip, which is also affixed to the refrigerator.

    Every time the child exhibits a target behavior, the parent on the scene takes the child to the refrigerator and says, “(The behavior) is on your list, which means I’m taking a ticket.” The parent takes a ticket out of the clip and places it on top of the refrigerator. If the child will cooperate, a time-out of five to 15 minutes also can be enforced. Certain outrageous behaviors — hitting, for example — can result in the loss of more than one ticket at a time.

    The child begins every day with a certain number of tickets. When they have all been lost, the child spends the rest of the day in his room and goes to bed one hour early. The next day, the proverbial slate is wiped clean — all of the child’s tickets are restored and the procedure begins anew.

    The success of the program depends on parents observing the “Referee’s Rule”: no threats, warnings, or second chances. When the child misbehaves, it is essential that parents not say things like “Do you want to lose a ticket?” or “If you don’t do what I just told you to do, I’m going to take a ticket.” Also, lost tickets cannot be earned back with good behavior or acts of service.

    As the child’s behavior improves, the number of tickets can be gradually reduced so as to keep pressure on the child’s progress. Generally speaking, full rehab takes six to 12 weeks, after which the child will be perfectly behaved, forever.

I hope to provide additional tools from time to time because making it through a crisis such as divorce takes more than attention to the legalities.

May 9, 2007 Posted by | Family Law, Parenting | Leave a comment