Opinion
NO. 2018-CA-000903-ME
02-08-2019
TONYA MARIE SIZEMORE LINDON and PHILLIP MICHAEL LINDON APPELLANTS v. KRYSTAL ANN HONSBERGER APPELLEE
BRIEF FOR APPELLANTS: Jerry W. Gilbert Beverly A. Brewer Richmond, Kentucky BRIEF FOR APPELLEE: Nanci M. House Winchester, Kentucky
NOT TO BE PUBLISHED APPEAL FROM POWELL CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 16-CI-00078 OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES. KRAMER, JUDGE: Tonya and Phillip Lindon, the de facto custodians of K.H. ("Child"), appeal from the judgment of the Powell County Circuit Court's order awarding sole custody to Krystal Honsberger, Child's biological mother. The Lindons also challenge the circuit court's limitation of their visitation with Child. After careful review of the record and applicable law, we vacate and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Krystal Honsberger is the biological mother of four children, including Child. She currently resides in Toledo, Ohio, with her mother, Angela Goodnight. While pregnant with Child, Krystal was abusing methadone and continued struggling with substance abuse after giving birth to Child. After Child's birth on June 2, 2014, Krystal resided with Angela, who had custody of Krystal's three older children. Sometime before Child was four months old and due to Krystal's substance abuse problem, Krystal left Angela's home with Child while Angela maintained custody of the older three children.
In May 2015, Tonya Lindon became aware of Krystal's substance abuse problem. Tonya offered to allow Child to stay with her at her home in Stanton, Powell County, Kentucky. Tonya traveled to Toledo to retrieve Child, who at the time was eleven-months old. In May 2015, Krystal signed a notarized agreement that essentially gave custody of Child to the Lindons for one year. During this time period, Krystal was to seek treatment for her substance abuse problems.
Tonya's cousin was previously married to Angela, but she is of no blood relation to Krystal.
Initially, Krystal and Tonya kept in contact. However, the communication between the two began to deteriorate. There was no contact between the parties from December 2015 to April 2016.
In April 2016, the Lindons, pro se, petitioned for custody and to be declared de facto custodians of Child. The Lindons eventually retained counsel and sought an ex parte order for temporary custody, which was granted. In May 2016, the parties entered into an agreement concerning temporary custody and visitation. Per the agreement, the Lindons maintained custody of Child, and Krystal was awarded specific dates for visitation. The circuit court ordered that if the parties were unable to come to an agreement regarding Child's permanent custody, they were to mediate the matter before requesting a final hearing. Unfortunately, Krystal and the Lindons were unable to come to an agreement, resulting in the matter being assigned for a final hearing in August 2017.
At the August 2017 hearing, Tonya testified that Child: Immediately integrated into their home; was unhealthy when she arrived but that the Lindons had attended to her medical issues; had her emotional and physical needs met; had a loving relationship with the Lindons and their two older children; Child attended church and was attending head start; and was described as a normal three-year old by her preschool teacher. Tonya also testified that she had failed to take Child to Toledo to visit with Krystal, which was part of their agreement.
Krystal also testified at the hearing that she: had been struggling with drugs for the past ten years; had been in six different treatment programs during this period; had traded sex for drugs; and her drug of choice was heroin. Krystal also testified that she had consistently visited with Child since May 2016, and always traveled to Kentucky for her visits. She also testified that in April 2016, she had relapsed and admitted to using heroin, cocaine, Xanax, and marijuana. Due to her relapse, Krystal explained that she is currently participating in a methadone program receiving daily dosages and that it will take her two years to successfully complete the program. When asked about her relationship with Child's father, Krystal explained that she has not had much contact with him; that they had a violent incident in the past; and that he is a violent person. However, she also testified that she does not believe that he would ever hurt his daughter and that she would allow him to have contact with Child. Continuing her testimony, Krystal explained that she has had consistent and stable employment for over a year; that she has regained custody of her other three children; that she would be living with Angela; and that she has obtained her driver's license.
Following the hearing, the circuit court made oral findings from the bench. The circuit court found the Lindons to be de facto custodians of Child, but nonetheless awarded Krystal sole custody. The circuit court awarded the Lindons visitation and directed the parties to agree on visitation and how they wanted to transition Child to Krystal's home in Toledo. The parties were unable to come to an agreement; therefore, Krystal moved for the circuit court to specify the Lindon's visitation. Krystal also filed an addendum to that motion, alleging that the Lindons had contacted social services making allegations against her. The Lindons responded requesting an evidentiary hearing and the appointment of a guardian ad litem.
In September 2017, a hearing was held on the motions. The circuit court awarded the Lindons visitation "on the first weekend of the month from 7:00 p.m. Friday to 7:00 p.m. Sunday," and that the Lindons would pick up and return Child to Krystal's home in Toledo. The final order was entered in November 2017.
Thereafter, the Lindons moved to alter, amend, or vacate the circuit court's order. They also moved for a new trial and additional findings. This matter was heard in January 2018. The circuit court granted the motion to amend for the limited purpose of removing certain language from the previous order and included a judgment for past due child support owed by Krystal. The order overruled the other arguments of the Lindons, keeping the November 2017 order substantively intact. The amended order was entered April 2018.
This appeal followed.
STANDARD OF REVIEW
The standard of appellate review regarding custody determinations is well established.
Trial courts are vested with broad discretion in matters concerning custody and visitation. In the absence of an abuse of discretion, we will not disturb a trial court's decision. "Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." The test is not whether we as an appellate court would have decided the matter differently, but whether the trial court's rulings were clearly erroneous or constituted an abuse of discretion.Truman v. Lillard, 404 S.W.3d 863, 869 (Ky. App. 2012) (citations omitted).
ANALYSIS
Initially, it is vitally important to distinguish between the interrelated concepts of visitation and timesharing. When sole custody is awarded, the sole custodian has "full control and singular decision-making responsibility for his or her children to the exclusion of the other parent who received a limited period of access to the children through visitation, a term which denoted the right to see the children, but not to control them legally." Pennington v. Marcum, 266 S.W.3d 759, 763 (Ky. 2008). When joint custody is awarded,
[b]oth parents have responsibility for and authority over their children at all times. Equal time residing with each
parent is not required, but a flexible division of physical custody of the children is necessary. . . . [B]oth parents possess the rights, privileges, and responsibilities associated with parenting and are expected to consult and participate equally in the child's upbringing.Id. at 764.
Consequently, "visitation" is a sole custody term that is frequently misused in practice, while "timesharing" is a joint custody term being that both parents are considered the legal custodian of child. Id.
On appeal, the Lindons argue that due to their de facto custodian status, the circuit court: (a) abused its discretion by awarding sole custody to Krystal by improperly applying the standard of proof required in juvenile dependency proceedings as opposed to the best interest standard; (b) erred in denying the Lindons' request for an evidentiary hearing and including findings based on unsworn testimony in the final order; and (c) unreasonably limited the Lindons' timesharing award. We agree.
Although Krystal does not dispute the circuit court's determination that the Lindons qualify as de facto custodians (and we agree that there is sufficient evidence to support this determination), it is essential to our analysis that this qualification is explained and the consideration they are to be given in custody matters. KRS 403.270 states that,
Kentucky Revised Statute.
We note that KRS 403.270 was amended by the General Assembly in July 2018, but we utilize the version of the statute in effect when this action was brought. However, on remand the circuit court is directed to utilize the amended statute which adds the following to KRS 403.270(2):
Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare.(Emphasis added.)
(1) (a) As used in this chapter . . . "de facto custodian" means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.
(b) A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection. Once a court determines that a person meets the definition of de facto custodian, the
court shall give the person the same standing in custody matters that is given to each parent under this section and KRS 403.280 , 403.340, 403.350, 403.822, and 405.020.
(Emphasis added.)
(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian.
(a) The circuit court's award of sole custody to Krystal was erroneous.
The Lindons primarily take issue with the circuit court's determination that it is in the best interests of Child for Krystal to be awarded sole custody. They assert that because it is undisputed that they are de facto custodians, the circuit court applied the incorrect standard. They argue that the standard applied to this case is more consistent with that used in dependency, neglect, and abuse cases where the goal is reunification. We agree.
While the circuit court did designate the Lindons as de facto custodians of Child, it appears from the remarks made from the bench and the November 2017 order, that the driving force behind its decision to award sole custody to Krystal was the fact that she is the natural mother of Child. This fails to comport with the mandate of KRS 403.270, i.e., "[o]nce a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent[.]"
At the August 10, 2017 hearing, the circuit court made the following statements from the bench:
The court commends the petitioners for being willing to care for a child they're not related to. And to, have, they have bonded with this child. And they have appropriately cared and provided for her and that's a wonderful thing. And, I'm sure Krystal and her family are thankful for that.
The court notes that the intentions of both parties at the time [Child] was placed in the petitioner's custody, was that she would be there for a year. It's not unlike a child being removed from the parents care for neglect and being placed in the custody of a relative or in foster care. And that parent given, being given a case plan, and the parent working the case plan, and the Cabinet recommending that the Child be returned to the custody of the parent because they have worked the case plan.
But the court finds that Krystal Honsberger has made progress. Her mother and sister, who see her daily, have testified that they believe her progress is different this time than it has been previously. And, the evidence is that she has the support of family members in Toledo to assist her in caring and providing for her minor daughter. The, the United States Supreme Court has said that a natural parent has a constitutional right to their children, and a constitutional right to dictate who visits and doesn't visit with their children.
And the court finds that [Child] has a good interaction and interrelationship with her mother because of the consistent visiting she has done. The court finds that, that relationship has been strained by her not having had any overnight visitation with the minor child since May of 2015. The court has considered the mental and physical health of all individuals involved. There's not
evidence of any domestic violence in either parties' home. And no evidence of any other de facto custodians.
The court finds that it would be in [Child's] best interest to be raised with her siblings. And the court, will order that, umm, that it's in the best interest of this minor child for her mother to be awarded her primary custody. And for the petitioners to be awarded timesharing with [Child], because they have definitely developed an extensive bond with the child. And they have been Good Samaritans in caring and providing for her for the last year.
In the circuit court's November 2017 order, it stated that, "[t]he court equates the respondent's accomplishments to be tan[t]amount to complying with a CHFS case plan in a DNA juvenile case." Also, the circuit court cited Moore v. Asente, 110 S.W.3d 336 (Ky. 2003), stating that,
Cabinet for Health and Family Services.
Kentucky's appellate courts have recognized not only that parents of a child have a statutorily granted superior right to its care and custody, but also that parents have fundamental, basic and constitutionally protected rights to raise their own children[.]The circuit court also stated that,
[t]he court concludes that due to the respondent natural mother's foregoing progress, the availability of family members to assist her, and the expiration of the parties' temporary one (1) custody agreement, it would be in the best interests of [Child] to be returned to the custody of her mother Krystal Honsberger and be raised with her siblings and for the [Lindons] to be awarded timesharing.
The Lindons argued in their motion to alter, amend, or vacate that this was the improper standard. Thereafter, the circuit court entered an April 2018 amended order stating,
[t]he court has reviewed and considered the record and recognizes that while Moore v. Ascente [sic]110 S.W.3d 336 (Ky. 2003) indicates a natural parent otherwise has a superior right to custody of their child, pursuant to KRS 403.270 (1) (a), (b) and (2) in the determination of custody between de facto custodians and a natural parent the court shall give equal consideration to the de facto custodians and each parent; and the court shall determine custody in accordance with the best interests of the child, which is the standard applied by this court in this case.
The court mentioned Moore v. Asente, supra, because the parties initially agreed that the petitioners would have custody of the respondent's minor daughter for one (1) year, a time certain, and the respondent had not waived her superior right to custody indefinitely. The Lucas County Ohio Court of Common Pleas returned the respondent's other three (3) minor children to the respondent's custody and the respondent's mother's home, where the respondent and her children reside, was approved by the Lucas County Ohio Children's services, which would indicate that the respondent is not unfit.
The court mentioned this case resembling a dependency, neglect and abuse case only because it was the purpose and intent of both parties at the time the petitioners received custody of this child that the petitioners would have custody of the child for a period of one (1) year from May 4, 2015 to enable and give the respondent mother an opportunity to complete a substance abuse rehabilitation program so the mother would be able to care and provide for her minor child, which is a goal similar to a Commonwealth of Kentucky, Cabinet for Health and Family Services (CHFS) case plan. The court
understands that this a not a CHFS dependency, neglect, and abuse petition and did not and does not apply the KRS 600.010 family reunification standard in determining custody and timesharing in this case.The circuit court went on to state that,
For clarification purposes, on motion of the petitioners, it is hereby Ordered all citations, statements and references to Moore v. Asente, 110 S.W.3d 336 (Ky. 2003) and to this case being tantamount to a CHFS dependency, neglect and abuse case and to this court's statements regarding the parties' alleged actions subsequent to the hearing held on August 10, 2017 set forth in this court's Order/Judgment entered on November 16, 2017 are stricken and set aside.
However, in the same order, the circuit court made the following findings, in relevant part:
The court finds that due to respondent's recovery progress she is a fit and proper person to care and provide for her minor children, including [Child]; the presence and assistance of the children's maternal grandmother will ensure the children's safety; and it is [Child's] best interest for respondent mother Krystal Ann Honsberger to be awarded sole custody and to be raised with her siblings.
It is apparent from the circuit court's remarks and orders that although it noted that the Lindons as de facto custodians should be given equal standing as natural parents in custody matters, it clearly did not consider this statutory mandate in its custody determination. The circuit court mainly focused on the biological relationship of Krystal and Child and whether Krystal was a fit enough parent to be given the opportunity to once again parent her child. This Court has previously explained that, "[t]he purpose of designation as a de facto custodian is to afford a person who has acted as a parent equal status with parents in court." Hicks v. Halsey, 402 S.W.3d 79, 81 (Ky. App. 2013). We understand the importance of a child's relationship with her biological parent and siblings. However, the biological relationship between Krystal and Child is not a determinative -- or even primary -- factor to be considered when determining custody between a natural parent and one granted the status of de facto custodian. By allowing the Lindons to gain the status of de facto custodians, Krystal waived her superior rights to custody. See Truman v. Lilliard, 404 S.W.3d 863, 868 (Ky. App. 2012). As we have previously explained,
it is clear that the statute [KRS 403.270] is intended to protect someone who is the primary provider for a minor child in the stead of a natural parent; if the parent is not the primary caregiver, then someone else must be. . . . [T]he statute is clear that one must literally stand in the place of the natural parent to qualify as a de facto custodian.Consalvi v. Cawood, 63 S.W.3d 195, 198 (Ky. App. 2001), overruled on other grounds by Boone v. Ballinger, 228 S.W.3d 1, 2 (Ky. App. 2007).
After a review of the multiple hearings on tape and an examination of the substance of the orders, we conclude that the circuit court did not apply the proper standard for a determination of custody in this case. The record of the hearing reveals that the circuit court, while making comments from the bench, compared the case to that of a dependency, neglect, and abuse case. Although the court mentioned the statute containing the correct standard, it did not apply that standard to this case. The Lindons, having fulfilled the role of a parent in Krystal's absence sufficiently to be indisputably de facto custodians, are entitled to be given equal standing as Krystal. Therefore, the biological relationship or lack thereof between the parties and Child cannot be the driving force behind the circuit court's custody determination. It was error for the circuit court to have done so.
Hence, the circuit court abused its discretion by making a child custody determination that was unsupported by sound legal principles and statutory mandates. Consequently, on remand, the circuit court is to reassess the custody determination considering the above analysis and specifically KRS 403.270. Krystal's having waived her superior rights to custody for the two years that Child was cared for and raised by the Lindons, they now as de facto custodians stand in the same shoes as Krystal. See Truman, 404 S.W.3d at 868. Accordingly, Krystal does not have an advantage regarding a sole custody decision simply because she is Child's natural parent.
The circuit court's order also appears to have considered the parties "strained relationship" as a factor and predictive of their ability to work together in the future if granted joint custody. This was error. The circuit court made the following statements from the bench at the January 8, 2018 hearing regarding the Lindons' motion to alter, amend, or vacate the previous order:
After a review of this hearing, we notice that after the Lindons and their attorney left the courtroom, a conversation, initiated by the court, began between the court, Krystal, and Angela. During this conversation, there were allegations made against the Lindons and their behavior around Child when exchanging her with Krystal. The court commented on these allegations. Although it is not clear from the record that these allegations were considered by the circuit court in making its final determination, this was clearly an impermissible ex parte contact.
Well, I'm just trying to recall some of the testimony. But, I think the primary reason for sole custody was the distance between the parties and at that time it appeared that they weren't the most cooperative regarding this child. And when you're making medical, medical decisions about medical providers and that kind of thing, umm, it needs to be a civil determination and not a screaming match for something as simple as what doctor she sees or what course of medical treatment she receives. I'm just trying to recall what my thoughts were.This is not a proper statement of the law. Rather, the Kentucky Supreme Court has previously stated that,
[w]hile we have no doubt of the greater likelihood of successful joint custody when a cooperative spirit prevails, we do not regard it as a condition precedent. To so hold would permit a party who opposes joint custody to dictate the result by his or her own belligerence and would invite contemptuous conduct. Moreover, the underlying circumstance, the parties' divorce, is attended by conflict in virtually every case. To require goodwill between the parties prior to an award of joint custody would have the effect of virtually writing it out of the law.Squires v. Squires, 854 S.W.2d 765, 768-69 (Ky. 1993).
We see no meaningful difference in the present case as compared to a dispute involving a divorce.
In previous cases where we have upheld a sole custody decision due to lack of cooperation between the parties, there has been more evidence of a volatility between the parties, a controlling personality of one of the parties, or major differences in opinion concerning child rearing. See, e.g., Gertler v. Gertler, 303 S.W.3d 131, 134 (Ky. App. 2010) (controlling behavior of one of the parties); Johns v. Johns, No. 2003-CA-001704-MR, 2004 WL 1909455, at *2 (Ky. App. Aug. 27, 2004) (volatile relationship between the parties); Brown v. Jenkins, No. 2002-CA-002571-MR, 2003 WL 22417187, at *4 (Ky. App. Oct. 24, 2003) (major differences in parenting). Therefore, the circuit courts conclusion that "it's unlikely the parties would be cooperative in making joint decisions[,]" cannot serve as a basis for disregarding the presumption of joint custody on remand.
We cite to these unpublished cases for illustrative purposes only.
(b) The circuit court erred in entering an order relying on unsworn "evidence" from counsel, while denying the Lindons' request for an evidentiary hearing.
The Lindons also argue that the circuit court erred by denying their request for an evidentiary hearing to refute allegations made against them by Krystal that led to the circuit court's order resulting in further separation between Child and them. They argue it was error for the circuit court to consider unsworn statements by Krystal's counsel as "evidence" without holding an evidentiary hearing. We agree.
Following the final hearing, the parties were unable to work out a transition schedule and the Lindons' long-term visitation schedule. Consequently, both parties filed motions for the circuit court to determine visitation. Subsequently, Krystal filed an addendum to her motion alleging the Lindons were trying to prevent the implementation of the transition of Child to her. The circuit court held a hearing on these matters in September 2017.
The following is the relevant part of that hearing, regarding how the allegations against the Lindons were addressed before and by the circuit court:
Ms. House (Krystal's Attorney): We're here based off of my initial motions. Since the hearing, the parties have great difficulty coming up with a transition schedule as you had ordered. It was either Mrs. Lindon's way or no way. Finally, they did that. However, they completely disagree on what the Lindons' long term visitation should be. So, I filed the motion, initially to get here.
Since that time, Mrs. Lindon took the child to a doctor and reported allegations so serious as to cause an investigation by social services. The Lindons had picked the child up from Krystal on August 31. They would have gotten home at about 11:30 p.m and had the child at the doctor the very next day around 8 a.m., because the doctor signed the statement at 8:46 that morning. The medical records show that. Umm, and the medical records, which I have certified copies of, make it very
clear that the doctor had to report to social services based on the allegations that Mrs. Lindon was giving regarding the child. That has all been unsubstantiated. And I filed an un-substantiation in the record, the letter of un-substantiation. Ohio social services was involved as well as Powell County. James Estes, from Powell County has been in communication with me and I actually sent him a subpoena. . . .
It's my understanding from all the professionals involved that they view this as mostly a custody dispute and that's why it occurred. . . .
It's our position, that clearly the Lindons are not interested in what is best for this child. They don't like the ruling of this court so they attempted to go through social services. That didn't work. Now they've filed a motion for a guardian ad litem. So they're trying to take a second bite at the apple and that's not what guardian ad litems should be used for. The court has issued its ruling, umm, it's our position at this point, honestly Krystal's position, based on everything that's happened, based on the investigations, based on this child having to have these procedures, and the nature of these allegations that there should be no visitation. If the court is still going to order visitation, it's our position that that visitation should be supervised because Krystal doesn't want to see this happen to her child again and it should occur in Toledo, Ohio, during the day. No more than once per month. Krystal previously drove to Powell County, umm during the day only to see the child and the Lindons should be required to do that at this point if they're going to see the child. And definitely no more than one time per month. . . .
Again, we have all the documents here. At least one of the professionals here, and there have been many others. And I've sent opposing counsel other letters from
other professionals, again with their concerns about what's happened. It's our position that there's no need for anymore transition. The Lindons caused this investigation, all these inves, invasive evaluations to this child. Krystal didn't see the child for two weeks, it was then unsubstantiated and deemed basically a custody dispute. There's no more need for transition. We just need the court's order with that long term visitation if any will be for the Lindon's.
. . . .
Mr. Gilbert (Lindons' Attorney): After the social services investigation was completed after a prevention plan was entered on September the 1st, and after that was unsubstantiated, she immediately made contact with the mother and delivered the child to her last Friday. Under, with the understanding that and agreement that the child would be returned yesterday. [Mrs. Lindon] hasn't had any contact with the child, she's been prohibited from talking with the child, and any communicating with the child in any fashion. And [Krsytal] has refused to return the child as agreed to. These are very serious allegations that they, that they are putting on Mrs. Lindon, in terms of making an unsubstantiated claim. If that is their allegations, then I would request that the court conduct an evidentiary hearing because there are medical professionals that will dispute that she initiated this type of inquiry. I think Mr. Estes, will, will, will testify with respect to the bonafides of Mrs. Lindon's actions in terms of being required that the hospital reported this to social services not her. Umm, at this point in time we would like to have that type of a hearing. These are very serious allegations, and we need to have these people in here to testify to the court to refute these allegations that are being made. In the meantime, there needs to be, and we have filed a motion for the appointment of a guardian ad
litem and for the court to set a transition schedule. They are refusing to cooperate, refusing to allow the child to communicate. And I would. I would, recommend to the court, or request the court on behalf of the Lindons that we do an alternate week schedule until we get this thing settled.
Judge: Well, the hearing has already been held. And, the court has ordered that this biological mother have sole custody of her minor daughter. And even though the Lindons had physical custody of the child for a year because Mrs. Lindon drafted the agreement that the mother signed, and it was for that length of time, because of that, that qualified as de facto custodians. Now, the Lindons are not related by blood or marriage to this child. Umm, and because they're de facto custodians, I suppose they would be entitled to some sort of timesharing with the child. But of course the only, statute that Kentucky has for that kind of thing is grandparents, not aunts, uncles, cousins, or other relatives. And you know these people aren't even related, to this child. So if the court was hopeful of the parties would be able to agree on some sort of time sharing schedule and it's unfortunate that they haven't, uh, for the sake of this three year-old little girl. . . .
The court, will order that the Lindons receive, umm, that, Toledo is like a six hour drive isn't it? That the Lindon's receive timesharing. Would you prefer to go on a Friday night, or would you rather go on a Saturday morning?
Tonya: (inaudible)
Mr. Gilbert: Would you prefer to go on a Friday or Saturday?
Tonya: I know, but can we show a video that we have of [Child] coming home saying things?
Mr. Gilbert: I've asked for an evidentiary hearing.
Tonya: And Mr. Estes can tell that I didn't, I just took her to the doctor for thrush that's all I did. And I didn't take her at 8 o'clock in the morning. I took her in the afternoon.
Judge: Whatever the reason, the allegations have been unsubstantiated. So it really doesn't matter.
Tonya: But I, but it wasn't my allegations.
Mr. Gilbert: But they are impinging her character and her intentions with respect to this.
Tonya: Yes, I didn't do this. And Mr. Estes can testify to that. I wouldn't, I mean I wouldn't, I wouldn't do that [Child]. I didn't want to take her to Clark Regional. And they told me if I didn't, then they would take her from me.
Ms. House: And I understand that your Honor. Again, this was un-substantiated, and the medical records make it clear that Mrs. Lindon stated, Mrs. Lindon stated, Mrs. Lindon stated. Not that the child stated, or examination showed. So that is why I'm saying allegations based on Mrs. Lindon.
Judge: I don't need to hear anymore evidence I don't think.
Tonya: But [Child] come home talking about mom on coke.
Judge: Did you tell the social services agency whose responsibility it is to investigate those kinds of things?
Mr. Gilbert: We did. She did your Honor.
Judge: Then that's part of the investigation that they've conducted.
Tonya: He's not seen the video of it.
Judge: Mrs. Lindon, I understand you want this child, at no, and do whatever you can to get her child.(Emphasis added).
Tonya: I would never do that your Honor.
Judge: You've done that! And you're, and you're continuing to try to do that.
Tonya: But your Honor I didn't. And I, and I, I mean the doctors offices' could tell you that. And so could the social service worker. I really didn't. I didn't want to take her, but I was under.
Judge: But that's not what happened. That's not what the evidence has been.
Tonya: I understand, but when they tell me I don't have a choice. I don't have a choice. When they told me that, your Honor.
Judge: That's fine. But whatever the allegations were have been unsubstantiated.
In this case, the circuit court was confronted with the very serious allegations made by Krystal against the Lindons. Krystal depicted the Lindons as manipulative de facto custodians who seek only revenge, accusing them of subjecting Child to invasive procedures and an investigation by social services to avoid the circuit court's previous order. Although the circuit court cited "evidence" during this proceeding, no witnesses were sworn and no evidence was entered. Clearly, the decision of the circuit court was based on unsworn statements by Krystal's counsel, without an evidentiary hearing at which the medical evidence and witnesses mentioned by Krystal's counsel supporting or refuting these allegations could be properly examined. Not only is this clear from the remarks noted above made from the bench, it is also noted in the circuit court's November 2017 order. In relevant part, the circuit court stated the following:
Subsequent to the final hearing, the parties were unable to agree on the petitioner's timesharing schedule. During [Child's] visit with the petitioners, Tonya Lindon took [Child] to a local doctor for thrush, the physician referred her to Clark Regional Medical Center and a referral was made to the Commonwealth of Kentucky, Cabinet for Health and Family Services (CHFS) for investigation of the child's alleged neglect and abuse in the respondent's custody. In addition, the petitioner Tonya Lindon, provided a video tape to CHFS for its consideration and the parties and CHFS entered into a prevention plan[.] The Powell County CHFS Department of Community Based Services contacted the Lucas County Ohio Children's Services and the allegations were investigated. CHFS subsequently recommended that [Child] be returned to the custody of her respondent mother Krystal Honsberger and the allegations were found unsubstantiated.
These statements are troubling because they are all based only on what was said by counsel at the September 2017 hearing. No witnesses were sworn; no evidence was entered into the record. Yet, the circuit court stated, "[t]hat's not what the evidence has been," and incorporated these allegations in its order as if they were based on evidence of record. Accordingly, based on the order of November 2017, the circuit court undisputedly took these unsupported allegations into consideration when making its determination.
In a subsequent order in April of 2018 on the Lindons' motion to alter, amend or vacate, the circuit court stated, "[t]hat the court did not find the unsworn statement made to be inconsistent with the petitioner's 9-22-17 response and did not consider same in ruling on the parties' motions for custody timesharing." It also then stated that the statements in the November 2017 order were to be stricken and set aside. Despite this--and as examined above-- it cannot be seriously doubted that the circuit court relied upon the unsworn evidence noted supra. In the absence of those unsworn allegations, there is no other basis for the circuit court's decision to so drastically limit the Lindons' time with Child. Therefore, the circuit court abused its discretion by relying on unsworn testimony and evidence in making its ruling. Accordingly, we vacate this order.
(c) The circuit court's limited visitation award to the Lindons was an abuse of discretion.
Lastly, the Lindons assert that the circuit court's visitation award was unreasonable given their de facto status and the fact that Child lived with them and they cared for Child for nearly two-thirds of Child's young life. Despite the fact that the Lindons were the primary custodians of Child beginning at age eleven months in May of 2015 through the time of the circuit court's sole custody decision in favor of Krystal in November of 2017, they were only awarded visitation on the first weekend of the month from 7:00 p.m. Friday to 7:00 p.m. Sunday.
We agree with the Lindons that the circuit court unreasonably restricted their visitation. The circuit court made no findings of whether the Child would be better served by spending only one weekend a month with the Lindons compared to the time she has been accustomed to having lived with them for two years of her tender years. In fact, it is apparent from the remarks made at the September 25th hearing that the Lindons' visitation was reduced simply because they were not of blood relation to the child. This was in error. There has been no evidence that supports a finding that the child's best interests would be served by this very limited visitation.
The Supreme Court of Kentucky has previously explained that,
[v]isitation is not solely for the benefit of the adult visitor but is aimed at fulfilling what many conceive to be a vital, or at least a wholesome contribution to the child's emotional well-being by permitting partial continuation of an earlier established close relationship. A surrogate parent can be as devoted to and concerned about a child as a natural parent. The relationship which develops between a surrogate parent and a child can be as close as that of the child to a natural parent.Simpson v. Simpson, 586 S.W.2d 33, 35-36 (Ky. 1979), abrogated by statute, as noted in B.F. v. T.D., 194 S.W.3d 310 (Ky. 2006).
Therefore, the circuit court abused its discretion in its determination on what is in Child's best interests. It failed to take into consideration the totality of circumstances, including the bond Child has with the Lindons after spending two thirds of her tender years with them. Rather, the circuit court relied almost solely on biological relationships or lack thereof in its decision. Accordingly, we vacate the circuit court's April 16, 2018 order.
CONCLUSION
KRS 403.270 mandates that de facto custodians have the "same standing" as a parent; that "equal consideration shall be given to each parent and to any de facto custodian;" and, as amended in July 2018, "there shall be a presumption, rebuttable by a preponderance of the evidence, that joint custody and equally shared parenting time is in the best interest of the child." In sum, in regard to custody and timesharing, the Lindons and Krystal stand on the same footing. Krystal is to be commended for her progress and for doing what was likely in Child's best interests when she could not care for Child while she took care of her drug abuse problems. But, this is not a DNA reunification case. It is apparent Krystal took advantage of the very real possibility of losing custody of Child through the foster care system in Ohio if the Lindons had not cared for Child for two years while Krystal dealt with her drug abuse problems.
Child was born on June 2, 2014, and lived with the Lindons beginning in May of 2015 until the circuit court's order of November 16, 2017, when Child was returned to the sole custody of Krystal. Krystal alone gave up her superior right to rear Child for two of Child's three and half years of her life, and now the Lindons are undisputedly Child's de facto custodians. As such, KRS 403.270 grants the Lindons the same standing as Krystal.
For the above stated reasons, we VACATE the November 17, 2018 and April 16, 2018 orders of the Powell Circuit Court, and REMAND for further proceedings regarding custody and timesharing in accord with the mandates of KRS 403.270.
ACREE, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANTS: Jerry W. Gilbert
Beverly A. Brewer
Richmond, Kentucky BRIEF FOR APPELLEE: Nanci M. House
Winchester, Kentucky