Todd Ross Turner v. Wendi Nicole Turner ( 2023 )

RENDERED: JUNE 2, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0422-MR
TODD ROSS TURNER APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE DAVID A. LANPHEAR, JUDGE
ACTION NO. 11-CI-01279
WENDI NICOLE TURNER APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Todd Turner appeals from a family court order denying
him visitation with his children for at least three months, requiring him to attend
individual therapy, and providing that visitation would not resume until his
therapist determined Turner was ready to constructively participate in family
therapy. He also challenges the family court’s holding him financially responsible
for the court appearance of another therapist and its denial of his motion to vacate
without a hearing. For the reasons set forth herein, we affirm the family court in
all other respects but we vacate its total denial of visitation for at least three months
and remand to determine whether the serious endangerment standard is met.
FACTS
Todd Turner (Father) and Wendi Turner1 (Mother) have two children
together: Older Child and Younger Child. Older Child was about sixteen years
old and Younger Child was about eleven years old when the family court entered
the orders at issue.
The parties had joint custody with Mother being the primary
residential parent under their settlement agreement, which was incorporated into
their 2012 divorce decree. The agreement noted Father previously had supervised
visitation but stated the parties intended to shift towards him having unsupervised
parenting time under local co-parenting guidelines. Attached to the settlement
agreement was a copy of the court’s standard timesharing and visitation guidelines
signed by both parties. Several years passed with no litigation about custody,
timesharing, or visitation.
In early 2020, Father filed a pro se motion to enforce his visitation, or
timesharing rights, and to modify visitation/timesharing so the children could
spend roughly equal time with both parents. Mother also moved to modify
1
According to the Appellee brief and a filing in the record on appeal, Wendi Turner is now
known as Wendi Ford. However, she is referred to as Wendi Turner in the notice of appeal.
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timesharing and requested that the family court enter co-parenting guidelines and
order the parties to participate in co-parenting counseling. She asserted the
children would benefit from spending less time with Father. She attached an
affidavit in which she alleged Father engaged in inappropriate behavior which
posed risks to the children’s safety and well-being. She averred there was a
pending juvenile dependency, neglect, and abuse action regarding the children
which had been filed since the divorce decree was entered.2
Both parties’ motions to modify visitation or timesharing were
initially set to be heard in September 2020 but the hearings were delayed for
various reasons. In July 2020, an incident occurred resulting in a domestic
violence petition being filed on behalf of the children. An emergency protective
order was issued. But the domestic violence action was dismissed after an
evidentiary hearing in August 2020.3
Also in August 2020, the family court entered an order requiring both
parties to submit to psychological evaluations with psychologist Dr. Robert Bruce
Fane. Mother complied with the order to submit to a psychological evaluation by
late 2020. But Father did not. Mother successfully sought a continuance of the
2
The record of the dependency, neglect, and abuse case is not before us.
3
The record of the domestic violence action is not before us. But both parties alluded to the
filing of the domestic violence petition in July 2020 and to the dismissal of the domestic violence
action a few weeks later in pretrial compliance statements in this case’s record on appeal. And
the occurrence of these events appears undisputed.
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hearing on timesharing until early 2021 based on various factors including Father’s
not having obtained a psychological assessment.
Mother asserted in pretrial compliance documents that the children’s
relationship with Father had deteriorated further since the dismissal of the domestic
violence action and that Father had banned one of the children from his home. She
also stated Older Child became depressed due to issues with Father and had been
hospitalized.
In early February 2021, the family court conducted an evidentiary
hearing on both parties’ motions for modification.4 Mother presented the
testimony of the children’s guidance counselors and family therapist Sarah Light.
Their testimony was generally consistent with the allegations in pretrial
compliance. However, the proof was not concluded at that time, in part because
Father indicated he would need more time to cross-examine Light than the court’s
schedule allowed that day. (Also, Father had not submitted his assessment by Dr.
Fane prior to this hearing and the family court and opposing counsel needed
additional time to review the assessment.)
In March 2021, the family court entered an order stating that upon
Father’s agreement to follow Light’s recommendations on an interim basis and
4
Father’s original motion had been initially denied for failure to provide contact information
necessary for a virtual hearing. But Father filed another motion for modification of timesharing
in early 2021 which was set to be heard along with Mother’s modification motion.
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pending a further hearing, Father would have timesharing with Older Child only in
a therapeutic setting and timesharing with Younger Child would be at Light’s
discretion. The order specifically provided Light with discretion to determine the
frequency, timing, and methods of timesharing with Younger Child. The March
2021 order further provided that timesharing may occur in a public place,
supervised by Father’s then-fiancée. Should there be a need for someone other
than Father’s fiancée to supervise timesharing periods, Light had discretion to
approve the supervisor.
Prior to the next hearing on timesharing modification, Mother filed
her updated pretrial compliance including a letter from therapist Light. Light noted
that Younger Child stated she was uncomfortable with having visitation with
Father outside the therapy office. Light also stated she had asked Father whether
he was recording therapy sessions and reminded him that recording was prohibited
to protect confidentiality. She asserted Father admitted to recording therapy
sessions, said he was doing so to protect himself, was legally entitled to do so, and
refused to stop.
Light recommended that timesharing remain supervised until progress
was made in Father’s relationship with the children. She also requested the court
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order Father to stop recording therapy sessions.5
Meanwhile, Father filed a pro se motion in August 2021 requesting
the family court undo its March 2021 order requiring that his time with the
children be supervised. He contended he agreed to the supervision because proof
had not been concluded. He asserted that due to two court dates being missed or
postponed due to illness or pandemic-related backlogs, he was missing a lot of
time with the children since the next court date was set for February 2022.
In September 2021, Father filed an emergency motion to dismiss the
March 2021 order concerning visitation or timesharing. He argued the March 2021
order did not change his joint custody decision-making authority. He stated he
found Light unprofessional or unethical and had informed her there would be no
more therapy sessions and she would only be overseeing supervised visits.
Shortly thereafter, the family court entered an order denying the
emergency motion. The family court found that having the children stop therapy
with Light would not be in the children’s best interests and would impede
resolving the pending motions to modify timesharing. It ordered that Light
5
Light also reported in this letter that Father had told the children he refused to bring their half-
sibling from another relationship to therapy and they could only see the sibling if they agreed to
spend time with him outside therapy. She also informed the court that Father’s former fiancée –
who had previously supervised Father’s visits prior to the couple’s breakup – expressed concerns
about Father’s children and her own children being fearful of Father or inappropriately
disciplined by him. Light also opined that Father was manipulating the children by asking them
to choose between their safety and seeing their sibling and by speaking negatively about Light.
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continue as the children’s therapist and that the next hearing would remain set for
February 2022.
At the February 2022 hearing, Father appeared pro se and Mother
appeared with counsel. Mother’s attorney told the court that Older Child had
recently attempted suicide due to fears that visits with Father would become
unsupervised and that Older Child had entered a psychiatric hospital. Mother did
not testify nor did either child.
The family court heard testimony, including from Light and from
Father. Light testified that, shortly prior to the suicide attempt, she and the
children had discussed upcoming court dates and the fact the court would be
considering Father’s request for unsupervised time with the children. She stated
the children expressed concern about the court date and Father’s request for
unsupervised visits. She opined that the fear of a change to unsupervised time with
Father was among other factors leading to Older Child’s suicide attempt.
Light also testified to encountering difficulties with Father in therapy
sessions – i.e., his recording sessions, his lack of respect for authority in her view,
and his refusal to participate meaningfully. She recommended that Father’s visits
with the children be suspended until he underwent individual therapy resulting in a
change of attitude to make family therapy productive. She testified she had never
made such a recommendation before and that she thought it was important for
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children to have relationships with both parents as long as it did not endanger the
children. But she opined that Father’s lack of cooperation with family therapy was
causing the children harm and impeding their progress.
Father testified about why he sought relief from the court and his view
of the events. In response to the family court’s questions, Father stated he believed
he and Mother needed to communicate more effectively to co-parent and suggested
individual and family therapy to help them co-parent and reduce the children’s
stress. He also stated that he needed to listen to the children and spend time with
them without outside interference. He also expressed that he did not perceive
Light as being fair or therapy with her as benefitting the children.
The family court inquired into what Father was willing to do to repair
his relationship with his children and expressed concern about Older Child’s recent
suicide attempt. The judge further stated he perceived Light’s testimony as
indicating that the children were distressed and that he did not view Light’s
testimony as totally off base. He asked Father why was that the case and what
would Light’s motive be to fabricate? Father replied he did not believe Light’s
testimony was entirely fabricated and he did not know what her motivation was.
But he expressed his belief that therapy with Light was causing alienation from his
children.
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The family court judge stated he was concerned about the suicide
attempt and had a duty to do everything in his power to protect children from
harm. The judge indicated he would not rule from the bench, but he asked Father
if there was anything else he needed to say. Father repeated he needed to see his
children and expressed his desire to pursue family therapy – separately and
together – to take the pressure off the children and to allow effective co-parenting.
Mother’s attorney then made a closing statement. She noted she did
not have her client testify due to Mother’s hoarseness from screaming at
discovering the suicide attempt. She also stated that despite Mother’s previous
request for co-parenting counseling, Mother was no longer requesting that due to
difficulties dealing with Father over the past couple of years. Counsel argued
individualized assessments should be required before co-parenting counseling
could occur and counsel asserted Father showed no accountability for actions
which had harmed the children.
The family court took the matter under advisement. A few weeks
later, it issued a written order that “all visitation and family therapy between”
Father and the children cease immediately for at least three months while Father
“seeks individual therapy” with Dr. Fane. It found Father had not cooperated with
family therapy and stated: “His noncompliance in therapy has led this Court to
believe a different approach to reunification is necessary.” It also found a
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complete breakdown in communication between Father and the children. It further
found neither child had visited with Father outside therapy since February 2021. It
found that Light testified Father had a “lack of reality” and that Light
recommended Father have no further contact with the children “until [Father] has a
change of attitude.”
The family court also stated in this order that Father would be held
financially responsible for Light’s court appearance at the February 2022 hearing.
It noted Mother paid for Light’s previous court appearance in February 2021.
Lastly, it denied Father’s motion regarding visitation/timesharing, finding
unsupervised 50/50 visitation not to be in the children’s best interest.
Father filed a pro se motion to vacate. The trial court summarily
denied the motion to vacate, holding Father failed to comply with CR6 7.02 by
failing to state grounds with particularity and not clearly stating the relief sought.
It also noted the motion failed to comply with CR 5.02’s service requirements.
Father then obtained counsel and filed a timely appeal. On appeal,
Father contends that the family court committed reversible error in not scheduling
a hearing on his motion to vacate, suspending his visits with the children for at
least three months without finding that visitation would seriously endanger the
children, and holding him financially responsible for Light’s court appearance.
6
Kentucky Rules of Civil Procedure.
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ANALYSIS
Family Court’s Denial of Motion to Vacate is Not Reviewable on Appeal
Father first contends that the family court erred in denying his CR
59.05 motion to vacate without a hearing. But even if we agreed the denial of the
CR 59.05 motion to vacate was erroneous, “we could not provide a remedy for the
simple reason that we do not have jurisdiction over the trial court’s denial of
a CR 59.05 motion.” Ford v. Ford, 578 S.W.3d 356, 365 (Ky. App. 2019). Orders
denying motions to alter, amend, or vacate pursuant to CR 59.05 are interlocutory
and not appealable. Id. (quoting Hoffman v. Hoffman, 500 S.W.3d 234, 236 (Ky.
App. 2016)).
Though an order denying a motion to vacate under CR 59.05 is not
appealable, the denial of CR 59.05 relief does not change the underlying judgment.
So, we construe the attempt to appeal from the denial of CR 59.05 relief as an
appeal from the underlying judgment. Ford, 578 S.W.3d at 366. In sum, we do
not review the family court’s denial of the motion to vacate in itself. But we
consider whether Father is entitled to relief on his appeal from the underlying
Order Regarding Visitation and Therapy.
Order Regarding Visitation and Therapy is Appealable
Before addressing the merits of Father’s arguments of error in the
Order Regarding Visitation and Therapy, we note this order is appealable. This
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order may not facially appear final and appealable under CR 54.01 or CR 54.02
requirements especially since the family court envisioned possibly issuing
additional rulings after the passage of at least three months.7 But we conclude the
order is by its nature appealable as a decision impacting the custody and care of the
minor children. See N.B. v. C.H., 351 S.W.3d 214, 219 (Ky. App. 2011) (quoting
Gates v. Gates, 412 412 S.W.2d 223, 224 (Ky. 1967)) (rejecting party’s argument
that a post-divorce order regarding various issues including counseling was not a
final and appealable order as: “When, by the exercise of its continuing
jurisdiction, the family court enters an order regarding a minor child’s care and
custody, that order ‘is an appealable order and this Court may review it.’”).
Furthermore, our Supreme Court has specifically held that orders modifying final
7
“Typically, only final judgments are appealable. CR 54.01 states: ‘[a] final or appealable
judgment is a final order adjudicating all the rights of all the parties in an action or proceeding.’”
Upper Pond Creek Volunteer Fire Department, Inc. v. Kinser, 617 S.W.3d 328, 333 (Ky. 2020).
CR 54.02(1) provides that a court may grant a final judgment on less than all of the
claims in an action by reciting that the judgment is final and there is no just reason for delay but:
“In the absence of such recital, any order or other form of decision, however designated, which
adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not
terminate the action as to any of the claims or parties, and the order or other form of decision is
interlocutory and subject to revision at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.”
Given the multiple pending motions noted but not all expressly resolved in the Order
Regarding Visitation and Timesharing, it is not clear whether all of the parties’ rights in the
action were adjudicated. And this order does not contain the CR 54.02 recitations that it is final
or that there is no just reason for delay.
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orders about visitation and timesharing are final and appealable. See Anderson v.
Johnson, 350 S.W.3d 453, 455-56 (Ky. 2011).
Standards of Review for Order Regarding Visitation and Therapy
Generally, we review a family court’s decision to modify visitation or
timesharing for abuse of discretion. See Pennington v. Marcum, 266 S.W.3d 759,
769 (Ky. 2008). Similarly, we review for abuse of discretion its decisions
regarding counseling, N.B., 351 S.W.3d at 220; and assessment of costs, Culver v.
Culver, 572 S.W.2d 617, 622 (Ky. App. 1978). However, we review its
application and interpretation of statutes de novo. See Adamson v. Adamson, 635
S.W.3d 72, 77 (Ky. 2021) (“The interpretation and application of statutes is a
question of law and the lower courts’ judgments are not entitled to deference.”).
Lastly, we review factual findings for clear error; meaning we will not disturb
factual findings unless they are not supported by substantial evidence. Miranda v.
Miranda, 536 S.W.3d 196, 198 (Ky. App. 2017).
Any Error in Family Court’s Holding Father Financially Responsible for
Therapist Light’s Court Appearance is Unpreserved and Not Palpable
Father argues the family court erred in holding him financially
responsible for paying for therapist Light’s February 2022 court appearance. He
argues this is especially so since the family court did not expressly discuss the
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parties’ financial circumstances, see KRS8 403.220,9 and since, in his view, Light
testified as an expert on Mother’s behalf.
Father asserts he preserved this issue by filing his motion to vacate the
family court’s order regarding visitation and therapy. But his written motion does
not mention any issues about financial responsibility for Light’s court appearance
at all. Thus, he does not show where in the record he preserved this issue by
bringing alleged errors in this regard to the family court’s attention. See Oakley v.
Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012) (purpose of preservation statement
requirement is to assure appellate court that issue was “properly presented” to the
trial court and thus appropriate for review on appeal).
Father’s failure to show where this issue was preserved affects the
standard of review we employ – “whether we employ the recognized standard of
review, or in the case of an unpreserved error, whether palpable error review is
being requested and may be granted.” Id. Father did not expressly request
palpable error review in his brief.
Even if we leniently conduct an unrequested palpable error review on
8
Kentucky Revised Statutes.
9
KRS 403.220 provides: “The court from time to time after considering the financial resources
of both parties may order a party to pay a reasonable amount for the cost to the other party of
maintaining or defending any proceeding under this chapter . . . .”
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this unpreserved issue,10 the family court’s handling of this matter does not arise to
the level of palpable error resulting in manifest injustice. See CR 61.02. This is
particularly true since the family court had previously ordered Mother to pay for
Light’s previous court appearance in February 2021. And, as Mother points out,
the record is not devoid of information about the parties’ finances. Also, the
parties agreed to split the children’s health care costs, and the cost of the therapist’s
court appearance might reasonably be construed as akin to a health care cost.
Furthermore, we do not construe Poe v. Poe, 711 S.W.2d 849 (Ky.
App. 1986) – cited in Father’s brief – as calling for Father to be relieved of the cost
of paying for Light’s court appearance.
Poe does not discuss issues about ordering a party to pay costs
associated with a witness’s testimony. The issues on appeal in Poe included a
challenge to the award of attorney fees under KRS 403.220 and a challenge to the
trial court’s reliance on the testimony of psychologists retained by a party. Poe,
711 S.W.2d at 850. Poe only discusses KRS 403.220 requirements in the context
10
At least in the context of criminal cases, there is binding authority stating that appellate courts
need not consider unpreserved issues in the absence of a request for palpable error review unless
there are “extreme circumstances amounting to a substantial miscarriage of justice[.]” See
Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008) (“Absent extreme circumstances
amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable
error review pursuant to [Kentucky Rule of Criminal Procedure] RCr 10.26 unless such a request
is made and briefed by the appellant.”). But there appear to be no published Kentucky appellate
opinions clearly adopting this principle in civil cases despite the identical language used in RCr
10.26 and CR 61.02.
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of attorney fees to say that consideration of finances was required – though this
Court affirmed the attorney fee award despite a lack of supporting affidavits. See
id. at 852. Its discussion of expert witness testimony issues states only that a court
may consider testimony of experts retained by parties under KRS 403.290 and is
not limited to considering only experts appointed by the court. Id. In short,
financial responsibility for a witness’s court appearance was not at issue in Poe.
On the other hand, other authority indicates that a court may sometimes validly
assign costs associated with evidence to a party despite the evidence being
unfavorable to that party. See generally Culver, 572 S.W.2d at 622 (upholding
party being held financially responsible for cost of accountant report unfavorable
to that party).
In short, Father is not entitled to relief on this unpreserved issue –
particularly as he does not identify the amount of money at stake to pay for Light’s
February 2022 court appearance nor indicate he is unable to pay such an amount.
Furthermore, there is no clear indication in the record that he is indigent as he has
not requested to proceed in forma pauperis on appeal and has not pointed to any
affidavit of indigency in the record.
Standards Governing Modification of Visitation or Timesharing
Next, we address the key issues in this appeal – the validity of the
family court’s judgment regarding Father’s rights to visitation or timesharing.
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Both parties, who had joint custody of the children, sought modification of
timesharing – which they and the family court sometimes referred to as visitation.11
Modification of timesharing and visitation is governed by KRS 403.320. Layman
v. Bohanon, 599 S.W.3d 423, 431 (Ky. 2020).
KRS 403.320 provides in regard to parents:
(1) A parent not granted custody of the child and not
awarded shared parenting time under the presumption
specified in KRS 403.270(2), 403.280(2), or 403.340(5)
is entitled to reasonable visitation rights unless the court
finds, after a hearing, that visitation would endanger
seriously the child’s physical, mental, moral, or
emotional health. Upon request of either party, the court
shall issue orders which are specific as to the frequency,
timing, duration, conditions, and method of scheduling
visitation and which reflect the development age of the
child.
(2) If domestic violence and abuse, as defined in KRS
403.720, has been alleged, the court shall, after a hearing,
determine the visitation arrangement, if any, which
would not endanger seriously the child’s or the custodial
parent’s physical, mental, or emotional health.
(3) The court may modify an order granting or denying
visitation rights whenever modification would serve the
best interests of the child; but the court shall not restrict a
parent’s visitation rights unless it finds that the visitation
would endanger seriously the child’s physical, mental,
moral, or emotional health.
11
Technically, parents with joint custody have timesharing rather than visitation. If one parent
has sole custody, the non-custodial parent may have visitation. But often, as in this case, the
terms visitation and timesharing are used interchangeably. Pennington, 266 S.W.3d at 765.
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Our Supreme Court has construed KRS 403.320(3) to mean
timesharing can be modified if the family court finds modification in the children’s
best interests. But a court cannot restrict timesharing – meaning order less than
reasonable timesharing – unless it finds the child’s health “was seriously
endangered.” Layman, 599 S.W.3d at 431. There is no set definition of what less
than reasonable timesharing means in every case; however, “it does not necessarily
mean that a parent has less than reasonable timesharing just because he or she
spends less time with the child than under the original timesharing arrangement.”
Id. at 432.
Even though precedent does not rigidly define what less than
reasonable timesharing is, surely the family court order’s denying any form of
timesharing or visitation for at least three months is a restriction and not a mere
modification.12 After all, the practical effect is to deny any visitation or
timesharing – even supervised – for at least three months. And long-standing
precedent holds that a parent should not be denied visitation entirely without a
12
Our holding that the suspension of visitation for at least three months with additional
conditions to resume visitation here is a restriction is limited to the facts of the instant case.
Perhaps in some factual scenarios a prior visitation or timesharing order might be modified in
such a way that a parent does not have visits with his/her child(ren) for a period of a few weeks
or more without that modification amounting to restricted or less than reasonable visitation or
timesharing. For example, where a child lives hundreds of miles away from a parent, a
modification from the parent having visits once a month to only having visits once every two or
three months might be considered a reasonable modification rather than a restriction or less than
reasonable visitation or timesharing under some circumstances.
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finding that visitation would result in serious endangerment. Smith v. Smith, 869
S.W.2d 55, 56 (Ky. App. 1994) (construing KRS 403.320(1)).
Father contends the family court improperly suspended his visitation
for at least three months without making a finding of serious endangerment and
erroneously required him to attend individual therapy with Dr. Fane. He asserts he
preserved this issue for review through his motion to vacate the family court’s
Order Regarding Visitation and Therapy.
Father Preserved Issue of Alleged Insufficiency of the Evidence but Family
Court’s Factual Findings are Not Clearly Erroneous
Father generally expressed his unhappiness with the family court’s
rulings on visitation or timesharing and counseling in his pro se motion to vacate.
He specifically asked to vacate the family court’s order about visitation and
therapy “in regard to breakdown in communication between [Father] and both
children” as well as “Ms. Light’s testimony, and lack of evidence submitted to the
courts.” We construe this as a challenge to the sufficiency of the evidence,
especially for the family court’s finding of a breakdown in communication, and a
suggestion that Light’s testimony was problematic.
In his appellate brief prepared by counsel, Father points out that
neither Mother nor either child testified at the hearing. And he asserts that Light’s
testimony was mainly about his failure to follow her rules and conditions, such as
his recording therapy sessions – which he points out the family court had not
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previously forbidden and which he asserts was necessary to show Light misstated
what happened in therapy. But he cites no authority precluding the family court
from considering Light’s testimony about the effect of Father’s recording sessions
in the absence of a prior court order forbidding the recording of therapy sessions.
Furthermore, based on our review of the record, the family court’s
factual findings are not clearly erroneous as they are supported by substantial
evidence. See CR 52.01. Whether or not we would have made the same findings
and regardless of conflicts in the evidence, we cannot disturb factual findings
supported by substantial evidence as we must give due regard to the family court’s
assessments of the weight of the evidence and the credibility of witnesses. Jones v.
Jones, 617 S.W.3d 418, 424-25 (Ky. App. 2021); Moore v. Asente, 110 S.W.3d
336, 354 (Ky. 2003). In sum, we reject his argument that the family court’s factual
findings are not supported by sufficient evidence.
Family Court Identified Facts Leading to Its Decision, but Failed to Identify
or Address Proper Legal Standard to Deny Visitation or Timesharing
Entirely for At Least Three Months
As for Father’s argument that the family court failed to make findings
of fact or conclusions of law identifying why it found the restrictions it imposed
necessary, we agree in part but disagree in part. The family court made factual
findings indicating what facts led it to make the decision it made. For example, it
found a total breakdown in communication between Father and the children, noted
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its greatest concern about the suicide attempt, and found Father’s answers about
what he would do to restore the relationship with the children unsatisfactory. The
family court discussed the circumstances leading to the entry of the March 2021
interim order in written findings, and it found the children had not visited with
Father outside therapy for a year. It also found that Light testified to her serious
concerns about Father’s behavior and parenting ability, to his blatantly
disregarding rules (including recording therapy sessions), his “lack of reality,” and
his refusal to engage in therapy. It noted her recommendation of no further contact
with the children until Father’s attitude changed in its written findings. The family
court also orally indicated it found Light’s testimony credible when asking Father
questions during his testimony.
However, the family court failed to identify what legal standard it
applied to totally deny visitation for at least three months subject to additional
conditions to resume visitation.13 For example, the court made no reference to best
interests or serious endangerment when proclaiming that Father’s visitation would
cease for at least three months. See KRS 403.320(3). In other words, it failed to
make the necessary conclusion of law to restrict timesharing or visitation by not
13
In contrast, the family court clearly stated that it denied Father’s request for unsupervised,
50/50 timesharing based on that not being in the children’s best interest. But the family court did
not expressly grant or deny Mother’s motion to modify timesharing. (We also note that Mother’s
motion for modification did not explicitly and specifically request that the family court deny
Father any visitation, although she clearly opposed his request for unsupervised visits and she
asserted that reducing his time with the children would be in the children’s best interest.)
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allowing it at all for a period of months. See Anderson, 350 S.W.3d at 458-59
(explaining trial court made the required conclusion of law in that case to modify
timesharing by determining modification to be in the child’s best interest, but trial
court made no factual findings to explain why it reached that conclusion).
Unlike issues of the sufficiency of the evidence, Father did not
specifically raise the family court’s failure to discuss KRS 403.320’s legal
standards before suspending any type of visitation or timesharing in his motion to
vacate. Father also has not pointed to anywhere else in the record where he
requested that the family court issue additional findings of fact or conclusions of
law. So, it is not clear that he raised this issue to the family court. See Oakley, 391
S.W.3d at 380. And Father has not expressly requested palpable error review.
Nonetheless, we must vacate that part of the family court’s order
which totally denies Father any form of timesharing or visitation – even supervised
– for at least three months without a determination of serious endangerment.14 See
KRS 403.320(2), (3). See also Baldwin v. Mollette, 527 S.W.3d 830, 834 (Ky.
App. 2017) (reversing family court order denying parent any visitation during
14
KRS 403.320(2) states that where domestic violence is alleged, the court must determine, after
a hearing, what visitation arrangement, if any would not seriously endanger the child or the
custodial parent. It appears undisputed that the dismissed domestic violence case the parties
alluded to was brought on behalf of the children so presumably the allegation was that domestic
violence was directed toward them rather than a parent. Nonetheless, this statutory subsection
requires a determination that any visitation arrangement ordered must not seriously endanger
either the child or the custodial parent when domestic violence is alleged – apparently regardless
of whether the alleged victim(s) was the child(ren) or a parent or both.
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prison term which would last at least a year after the hearing due to family court’s
lack of reference to serious endangerment standard in KRS 403.320(1) and
remanding for new hearing to consider whether visitation would seriously
endanger the child).15
We cite with approval the following discussion from a Kentucky
family law treatise about the standard for totally denying visitation – albeit in the
context of ruling on initial motions for visitation rather than modification motions
– which may provide useful guidance to the family court on remand:
A court may limit a parent’s visitation if it finds that a
parent’s behavior or the conditions under which the
visitation will be exercised seriously endanger the child.
The statutory standard requires that the court use the least
restrictive alternative consistent with protecting the child,
whether that requirement arises from the “children’s
rights” aspect of the statute or the statute’s conception of
parental rights. However, the least restrictive alternative
requirement should not mean that a “no contact” order
cannot be entered if needed to protect a child’s physical,
mental, moral or emotional health. An order barring the
child from all contact with a parent should be used only
15
Despite no prior discussion of KRS 403.320 by the family court or the parties – even in
appellate briefs, we vacated a family court order denying a parent any visitation without
addressing whether visitation would seriously endanger the child in Shofner v. Thompson, No.
2019-CA-001235-ME, 2020 WL 2510910, at *5 (Ky. App. May 15, 2020) (unpublished).
Although this unpublished opinion is not binding authority, see Kentucky Rules of Appellate
Procedure 41(A), we find it persuasive and consider it in the absence of published precedent on
the same point. Further, we believe it consistent with our published precedent in Baldwin, 527
S.W.3d at 830. We did not explicitly discuss whether the incarcerated parent who represented
himself before the family court had argued KRS 403.320 to the family court or preserved the
issue for appeal in Baldwin; however, given the circumstances, the issue was likely not
preserved.
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in extreme cases because there are other, less drastic
alternatives, such as supervised visitation.
...
A parent’s mental health can affect his or her visitation
rights. The parent’s rights can be restricted if his or her
behavior is dangerous to the children. In Hornback v.
Hornback,[16] the trial court found that visitation with a
seriously mentally ill mother would endanger the
children. If a parent poses some threat, a court may wish
to consider whether supervised visitation can remove that
threat. Some courts have conditioned visitation on the
parent’s participation in treatment.
16 LOUISE EVERETT GRAHAM & JAMES E. KELLER, KY. PRAC. DOMESTIC
RELATIONS L. § 22:6 Visitation – Grounds for limiting (November 2022 update)
(footnotes omitted). See also id. at § 22:8 Visitation – Modification (noting recent
published precedent requiring only a best interest finding to support modification
not resulting in restriction or less than reasonable visitation, but also urging
consideration of risk of harm to children when ruling on modification motions).
The family court’s Order Regarding Visitation and Therapy modified
its prior orders about timesharing and denied Father any visitation – even
supervised visitation – for at least three months. But the family court did not
determine whether visitation seriously endangered the children or whether the
suspension of visitation for three months with the additional conditions for
16
636 S.W.2d 24 (Ky. App. 1982).
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resuming visitation represented the only visitation arrangement which would not
seriously endanger the children’s physical, mental or emotional health. See KRS
403.320(2), (3).
Mother argues in her brief that the family court’s factual findings
indicate that the family court “believed that, at least on a temporary basis,
visitation between the Respondent [Father] and children would seriously endanger
them physically, mentally, or emotionally.” But we do not know what the family
court judge subjectively believed in this regard in the absence of an explicit
determination of whether the KRS 403.320 serious endangerment standard was
met. And while the evidence might be sufficient to support a determination that
any timesharing or visitation – even supervised – would seriously endanger the
children under the circumstances presented at the time of the hearing, we cannot
make this determination for the family court. “As an appellate court, we review
judgments; we do not make them.” Klein v. Flanery, 439 S.W.3d 107, 122 (Ky.
2014).
While we vacate the family court’s denial of any visitation for at least
three months here, we do not suggest that the family court could not suspend
visitation for a few months subject to the same conditions if it does determine that
the serious endangerment standard is met. For example, we are aware that our
Supreme Court affirmed a family court order suspending a parent’s visitation for
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an indefinite period until mental health professionals determined it was appropriate
for visitation to resume – simply stating there was no abuse of discretion under the
circumstances of the case. May v. Harrison, 559 S.W.3d 789, 790-91 (Ky. 2018).
The majority opinion in May does not discuss KRS 403.320.
However, the concurring opinion notes the family court judge would have to
determine whether a child’s health or welfare was seriously endangered “per the
directives of KRS 403.320” before denying a parent any visitation. May, 559
S.W.3d at 794 (Keller, J., concurring in result only). And since a child described
being subjected to parental rape and sexual abuse by a stepparent during an in
camera interview, id. at 790-91, perhaps the majority in May implicitly concluded
the serious endangerment standard was so obviously met that no discussion of
KRS 403.320 requirements was necessary.17
Obviously, the facts of May – involving allegations of parental rape –
are different from this case. Yet May certainly indicates there are situations where
it is appropriate to suspend a parent’s contact with a child until a mental health
professional determines that resuming visitation or timesharing is appropriate. We
17
Here, by contrast, neither Older Child nor Younger Child nor Mother testified. This could be a
factor used by a court to assess whether there was evidence sufficient to meet the serious
endangerment standard. However, there was some evidence in the record regarding Father’s
interactions with the children and his parenting style. Moreover, we are not aware of any effort
by Father to request that either child or Mother testify. The family court on remand must assess
and weigh the evidence afresh to determine whether it is sufficient to meet the serious
endangerment standard.
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recognize the broad discretion afforded to family courts in such matters and leave
the matter for the family court to decide under the proper standard. However, we
caution the family court that it cannot validly modify prior timesharing or
visitation orders to totally deny any visitation for extended periods without first
determining that visitation would otherwise result in serious endangerment.
To be clear, we do not disturb the family court’s denial of Father’s
request for unsupervised, 50/50 timesharing. Nor do we suggest that the family
court cannot require Father to attend therapy or counseling for purposes related to
visitation or timesharing. See N.B., 351 S.W.3d at 220 (citing KRS 23A.110(1))
(recognizing family court’s discretion to order counseling as a tool to improve
family relationships). Under the facts and circumstances here, there was no abuse
of discretion in ordering Father to participate in therapy or in denying his request
for unsupervised, 50/50 timesharing.
We simply vacate the total denial of any timesharing or visitation –
even supervised – in the absence of a finding of serious endangerment and remand
to determine the matter under KRS 403.320’s serious endangerment standard.
That is not to say the family court may not validly enter an amended order with the
same restrictions as the original Order Regarding Visitation and Therapy. It can if,
on remand, the family court determines that visits would seriously endanger the
children. Or also, if it determines that suspending visits for at least three months
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while Father undergoes individual therapy with Dr. Fane and until Dr. Fane
determines Father can constructively participate in family therapy is the only
visitation arrangement which would not result in serious endangerment.
CONCLUSION
For the foregoing reasons, we AFFIRM the Warren Family Court’s
Order Regarding Visitation and Therapy in all other respects, but we VACATE the
total denial of any form of timesharing or visitation for at least three months and
REMAND for the family court to make a proper determination under the KRS
403.320 serious endangerment standard.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kenneth A. Meredith II Ashlea Shepherd Porter
Bowling Green, Kentucky Bowling Green, Kentucky
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