Florence Baker v. Rachel Kuffner

RENDERED: MAY 13, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
OPINION OF MARCH 25, 2022, WITHDRAWN
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1247-MR
FLORENCE BAKER AND ERIC
JUSTUS APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANGELA JOHNSON, JUDGE
ACTION NO. 19-CI-502952
RACHEL KUFFNER AND CASEY
KUFFNER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Florence Baker and Eric Justus appeal from the
Jefferson Family Court’s denial of Baker’s motion for immediate possession of
C.R.B. (child) from Rachel Kuffner and Casey Kuffner, who have guardianship of
child through a Jefferson District Court order in In re of: C.R.B. Guardian, No. 19-
P-003594. We affirm the denial of this motion as the family court’s decision was
amply supported by evidence indicating it is currently in child’s best interest to
remain with the Kuffners and because matters related to whether the guardianship
was fraudulently obtained are best addressed in the district court.
This case is a poster child for the continued problems of not dealing
with all matters relative to guardianship/custody of children within the family
courts. District courts are still empowered to deal with guardianship matters
regarding children, while family courts deal with custody matters. This dichotomy
leads to parties seeking to overturn what one court has done by filing an action in
another court which can result in inconsistent rulings. In the interest of providing a
complete accounting of the events regarding guardianship and custody of child, we
provide a brief history of relevant proceedings in all courts.
In June 2016, child was born to married couple Lonnie Baker and
Nicole Baker (collectively parents). At the time of their marriage, parents were
friends with the Kuffners. Baker is Lonnie’s mother and child’s grandmother.
Justus is Lonnie’s brother and child’s uncle.
In June 2017, Lonnie died in the hospital. A year later, a medical
malpractice action for Lonnie’s death was initiated on behalf of his estate, child
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and Nicole. In February 2021, one of the doctors settled for a confidential amount
which was approved by the circuit court.1
After Lonnie’s death, later in 2017, Nicole obtained a $500,000 life
insurance policy and named the Kuffners as the beneficiaries. Nicole also named
Rachel Kuffner as the beneficiary of her employer provided life insurance policy
and her 401(k).
On July 25, 2019, Nicole died after accidentally falling to her death
while hiking.2 This occurred while Nicole and child were on vacation in Hawaii
with the Kuffners. Casey Kuffner was appointed as administrator of Nicole’s
estate and was subsequently substituted for Nicole as administrator of Lonnie’s
estate.
According to Baker’s testimony,3 she was unable to take possession of
child when the Kuffners returned with child from Hawaii because Casey claimed
the Kuffners had been granted custody of child from a court in Hawaii, which
1
This litigation is still ongoing. See Kuffner v. Saint Joseph Health System, Inc., No. 2021-CA-
0168-MR, 2022 WL 414106, (Ky.App. Feb. 11, 2022) (unpublished) (reversing and remanding
the dismissal of the hospital on summary judgment grounds) (motion for discretionary review
filed Mar. 15, 2022).
2
While Baker and Justus state circumstances which make them suspicious about the cause of
Nicole’s death, there appears to be no evidence that Nicole’s death was anything other than a
tragic accident.
3
We refer to Baker’s testimony which she gave in the hearing regarding her motion for
immediate possession of child to support her allegations on appeal as most of the district court
records which she alleges support her position are not part of the record.
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Baker believes is false. Baker testified she wanted to pick up child from the airport
but did not attempt that given what Casey had told her. Baker also testified Casey
told her that he thought he was the executor of Nicole’s estate.
Baker testified she was able to see child after the Kuffners returned
with her from Hawaii but believed she could not take child with her because they
had custody. She testified that Rachel told her during this visit that the Kuffners
were the beneficiaries of Nicole’s life insurance policy.
On July 29, 2019, Rachel signed an application for appointment as
guardian for minor child and this application (along with a petition for
appointment) was filed the following day. The application for appointment as
guardian is the only portion of the district court record that was made part of the
circuit court record on appeal.
On July 31, 2019, the district court appointed the Kuffners, who are
non-relatives, as temporary guardians of child. Baker and Justus allege while the
district court was informed about some of child’s relatives who did not want to
claim guardianship of child, that the district court was not informed about their
existence or Baker’s interest in taking guardianship of child as is required by
Kentucky Revised Statutes (KRS) 387.025.
Baker testified she was not informed that the Kuffners had filed to be
appointed as child’s guardian or when there was a court date on that. Baker
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testified she did not find out that the Kuffners were appointed as child’s guardians
until she consulted with an attorney in late August of 2019. Baker testified she
was unaware of a second court date on August 21, 2019, concerning guardianship.
On September 27, 2019, Baker filed a petition for sole custody of
child before the family court, rather than attempting to intervene and participate in
the district court guardianship action. Baker also requested temporary visitation.
On October 16, 2019, the Kuffners responded and filed a counter-petition for sole
custody with the family court. According to Baker, she was permitted limited
supervised visitation by the Kuffners but was unhappy with this arrangement.
On February 25, 2020, again before the family court, Baker filed a
motion for “immediate possession of her granddaughter” and for the first time she
alleged:
[The Kuffners] obtained guardianship by misrepresenting
to the Jefferson District Court that [Baker] had no
objection to their guardianship request; and they
simultaneously failed to disclose the child’s substantial
estate in their application to the Jefferson District Court,
thereby perpetrating a fraud on that Court.
It is the resolution of this motion that is before us on appeal.
Also, on February 25, 2020, Justus moved to intervene in the family
court action to seek either joint legal custody with Baker or sole legal custody. On
March 25, 2020, the family court permitted Justus to intervene and Justus filed a
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petition for custody, either sole or joint with Baker. Baker filed a new petition for
custody in which she continued to request sole custody.
Prior to any hearing on Baker’s motion for immediate possession of
child, on March 9, 2020, Baker and Justus filed a motion in the district court
guardianship action, seeking to remove the Kuffners as child’s guardian.
Due to COVID-19, a hearing on Baker’s motion for immediate
possession of child was delayed until June 3, 2020. At the hearing, the family
court heard testimony from Baker, Casey, Rachel, child’s therapist Leanna
Gardner, and child’s maternal grandmother Joyce Raymond.
On August 28, 2020, the family court’s order denying the motion for
immediate possession was entered. In the family court’s findings of fact and
conclusions of law, the family court noted evidence supporting the fact that Lonnie
and Nicole were close friends with the Kuffners both before and after Lonnie’s
death: (1) Casey attended Lonnie’s and Nicole’s private wedding, signed the
wedding certificate (along with Baker), and then the Kuffners later attended
Lonnie’s and Nicole’s destination wedding (along with Baker and Justus) with
Casey serving as Lonnie’s best man and the Kuffners’ daughter also being in the
wedding; (2) Casey and Lonnie began a joint business venture together and owned
property and a business together, and Jennifer Baker (Lonnie’s sister) rents out one
of the properties owned by Casey and Lonnie; (3) the Kuffners had Lonnie and
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Nicole over for dinner about three to four times per week and, after Lonnie’s death,
had Nicole and child over for dinner around five nights per week and the Kuffners,
Nicole, and child would do weekend activities together; (4) Rachel assisted Nicole
with daycare after Lonnie died by watching child full-time for four or five months
and then part-time after child began attending daycare; and (5) Rachel would talk
to Nicole about eight times a day. The family court also noted evidence that Baker
was close to Lonnie, Nicole, and child: (1) Baker visited with child every three to
four weeks since her birth, staying with Lonnie and Nicole; (2) after Lonnie’s
death, Justus routinely drove Baker to visit with Nicole and child and Baker had a
great relationship with child and would read and play games with her.
The family court recounted the parties’ concerns about who should
raise child, with Baker being concerned that the Kuffners were after financial gain
from Nicole’s life insurance policy, and from Lonnie’s and Nicole’s estates, while
the Kuffners believed Baker could not keep up with the physical demands of
raising child or handle her other needs. However, there was absolutely no
evidence in the record that Baker could not take care of child other than their
testimony and supposition. The family court explained that the Kuffners believe
that child is best off in their home as she is like one of their children and gets along
well with their other children, while Baker believes child is best off in her care as
child is Baker’s only grandchild and Baker loves her as her own child. The family
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court also recounted lay testimony by child’s therapist (who the Kuffners hired)
that she believes child is well bonded with the Kuffners, child looks to them for
reassurance, and the therapist believes the Kuffners are very patient and
encouraging with child.
After explaining the narrow scope of the petition for immediate
possession, the family court declined the motion, explaining as follows:
[Baker and Justus] would like this Court to find
that Nicole appointing the [Kuffners] as administrator of
her estate, putting insurance policies in their names, and
overall making them responsible should the worst happen
to her, indicates that they are manipulative and money-
driven when in fact it demonstrates to this Court that
Nicole held them in high regard as trust[ed], close
friends. [Baker’s and Justus’] case-in-chief was so
consumed with vilifying the [Kuffners] that there is little
evidence regarding [Baker’s and Justus’] relationship
with the child and Mr. Justus did not even testify.
The Court believes the child is in a loving home
with people she has known throughout her life. The
Kuffners were very close friends of Lonnie and Nicole
and were trusted with business dealings, childcare, and
posthumous matters. The Kuffners live in Louisville,
where the child has lived her whole life. The Kuffners
have the ability and the means to care for the child. This
Court believes that Ms. Baker love[s] [child] very much,
but that is not enough to remove the child from the
Kuffner[s’] home and disturb her life to place her with
[Baker and Justus], at this time. The child is very young
and is working with her therapist to deal with the trauma
related to the death of her parents and since the child’s
wellbeing is not in danger with the Kuffners, then this
Court does not believe it needs to disrupt the child’s life
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at this point. This does not serve as any indication that
[Baker and Justus] cannot have contact with the child.
The family court made this order immediately appealable. Baker and Justus filed a
motion to alter, amend, or vacate and for specific findings of fact. The family
court denied this motion and Baker and Justus appealed.
While the family court’s order denying the motion for immediate
possession was pending before us on appeal, additional action took place in both
the district court and family court actions.
In the district court action, a hearing was held on the motion to
remove the Kuffners as child’s guardians. The motion was denied on February 1,
2021 and Baker and Justus appealed to the circuit court. As this was an appeal of a
district court matter, Baker v. Kuffner, No. 21-XX-000015, was not assigned to the
family court and so a different circuit court judge handled this appeal.
In the family court action, Baker and Justus requested visitation, but
only Baker was granted visitation pursuant to KRS 405.021 (the grandparent
visitation statute) in a temporary order entered on March 29, 2021, after the family
court found that visitation was in child’s best interest. Under this order, Baker was
permitted three Facetime calls per week for fifteen minutes and an in-person visit
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once a month for four hours. The family court also appointed a guardian ad litem
(GAL) for child.4
The Kuffners then filed a motion for de facto custody in the family
court action. In an order entered on July 14, 2021, the family court explained some
of the problems with such a motion considering that no parent was involved and its
belief that they could not be de facto custodians, but ultimately remanded, stating
that it would be more appropriate for this motion to be considered in a hearing for
custody. On August 3, 2021, the Kuffners next filed a motion for custody, which
has not yet been heard.
In an order entered on December 21, 2021, the family court ordered
that Baker’s in-person visitation with child be suspended and Baker be limited to
Facetime calls one time per week for fifteen minutes, based on an acrimonious
incident between the Kuffners and Baker during visitation in which the family
court stated Baker made “inappropriate comments directly to the child regarding
her biological parents, the Kuffners, and this litigation.” The family court stated
this order could be revisited in three months’ time.
Meanwhile, on January 13, 2022, a decision was rendered in the
appeal of the district court matter, Baker v. Kuffner, No. 21-XX-000015. The
4
We believe it would have been helpful had a GAL been appointed sooner, ideally in time to
weigh in on the motion for immediate possession but recognize that COVID-19 made typical
court operations and contact with others difficult.
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circuit court remanded to the district court for it to consider whether there was
fraud in the initial guardianship proceedings for failing to notify Baker and Justus
or gain their consent and, if so, whether pursuant to Kentucky Rules of Civil
Procedure (CR) 60.02, in its discretion this merited setting aside the order
appointing the Kuffners as guardians of child. This order is not final as the
Kuffners filed a motion to alter, amend, or vacate.
We now address whether the family court properly denied Baker’s
motion for the immediate possession of child. Baker and Justus argue that Baker
was entitled to the immediate possession of child because the Kuffners took
possession of child due to fraud in the district court matter in not naming Baker
and Justus as next of kin. Baker and Justus allege the Kuffners purposely failed to
give them appropriate notice and misled the district court into thinking there were
no paternal relatives with an interest in having guardianship over child. Baker and
Justus argue that they have proven the same by clear and convincing evidence, and
the family court erred by failing to consider such fraud and allowing the Kuffners
to benefit from such fraud, and because of such fraud it is in child’s best interest to
be with Baker.
During oral argument, Baker and Justus repeatedly emphasized that
the family court erred by failing to make factual findings about whether fraud took
place, thus depriving the Kuffners of a legal basis for maintaining physical
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possession of child pursuant to the guardianship, and without such a right to
possession, possession should naturally fall to Baker as a blood relative, as
relatives are favored for custody over non-relatives who are not de facto
custodians. Baker and Justus maintained that it would be improper to use the court
system to perpetuate a fraud, and that it could not be in child’s best interest “to
remain with her captors.”
In contrast, in their brief the Kuffners emphasized that after Lonnie
died Nicole relied on the Kuffners for support and that child was a part of the
Kuffners’ family. During oral argument, the Kuffners disagreed with Baker and
Justus that they should be preferred based on being blood relations of child,
arguing there was not a statutory preference for relatives and asserting that
“sometimes family is a chosen family.”
Regarding notice to relatives in a petition for appointment as
guardian, KRS 387.025 states in relative part:
(3) The petition for appointment shall set forth the
following:
...
(d) . . . if the minor has no living parent, the
names and addresses of the minor’s adult next
of kin;
...
(5) The District Court shall appoint a time for hearing the
petition and application. Notice of the time and place
of the hearing shall be given not less than five (5)
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days prior to the hearing . . . to each of the persons or
entities required to be named in the petition. Proof
of notice shall be made in accordance with the
provisions of KRS 395.016. Notice may be waived
as provided in KRS 395.016.
(Emphasis added.)
We do not discount that Baker’s and Justus’ allegations about fraud in
the district court guardianship action are a serious matter. It is undisputed that
Baker and Justus were omitted from the petition and did not receive appropriate
notice; however, it is disputed whether their omission amounts to a fraud upon the
district court which could be properly corrected pursuant to CR 60.02(d). During
oral argument, the Kuffners admitted that Baker and Justus were erroneously
omitted from the petition for guardianship and should have been listed as next of
kin, but denied that this was done for the purpose of depriving Baker or Justus
from being considered as guardians of child or constituted fraud.5 However, the
legal import of the lack of proper notice has yet to be decided as Baker v. Kuffner,
No. 21-XX-000015 is not final, and even if it were, the matter would still need to
be resolved by the district court.
Baker and Justus conflate the district court and family court actions
and seek for our Court to make rulings upon the appropriateness of the proceedings
5
The Kuffners argued that they believed and relied on child’s paternal aunt to give Baker and
Justus notice. We note that such “notice” if it in fact took place, would not be in conformance
with the requirements of KRS 387.025(5).
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that took place in district court even though an appeal from such proceedings is not
before us. Additionally, most of the district court record was never admitted into
the family court record and, therefore, was not examined by the family court.
We do not believe it would have been appropriate for the family court
to rule upon whether the guardianship decision was correct. At the time of the
family court’s hearing on the motion for immediate possession, while Baker’s and
Justus’ June 9, 2020 motion seeking to remove the Kuffners as child’s guardian
was pending before the district court, it had not been ruled upon.
The appropriate place to challenge whether the Kuffners’ actions in
the guardianship proceeding before the district court was fraudulent was before the
district court itself. While Baker and Justus did that, this matter has yet to be
finally resolved.
Should the circuit court order remanding for a consideration of fraud
be finalized, the district court would still need to make a ruling on whether there
was fraud and, if so, whether it justifies setting aside the guardianship. Once a
ruling is made, it may be considered by the family court in ruling on custody.
We do not believe it would be appropriate for the family court to
essentially make a ruling either upholding or invalidating the district court’s prior
action, as such a ruling could be inconsistent with an eventual final ruling in that
matter. Instead, it is appropriate for the family court to treat the district court’s
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guardianship order as valid and an appropriate basis for physical possession of
child until and unless it is overturned.
Additionally, ruling on whether the guardianship was fraudulent or
not would have been a difficult decision for the family court to make considering
that the only evidence of record regarding fraud in this action is Baker’s testimony.
We note that even had fraud in the guardianship matter been proven, that would
not automatically mean that the family court erred in failing to award Baker
immediate possession of child.
As established in Galloway v. Pruitt, 469 S.W.2d 556, 558 (Ky.
1971), “a litigant seeking the right to immediate possession of a child may institute
an action by filing a complaint asserting legal entitlement to the immediate custody
and possession of the child and, by appropriate motion, obtain a forthwith hearing
as if the principles of habeas corpus were applicable.” Such a proceeding can, if
the family court feels it is appropriate, lead to a full consideration of custody. Id.Baker did not institute a separate action for immediate possession but
instead filed a motion for immediate possession within a custody proceeding.
However, her motion sought the same relief.
An action or motion for immediate possession, is similar to the filing
of a petition for immediate entitlement to custody of a child pursuant to KRS
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620.1106 after a child has been removed from the home by the Cabinet for Health
and Family Services, as both types of actions are considered custody actions in the
nature of habeas corpus. Compare Galloway, 469 S.W.2d at 557-59 (noting an
action for immediate possession is not a “pure[,]” “true[,]” or “traditional” habeas
corpus action, because while it should be handled expeditiously, none of the
procedural rules of habeas corpus apply and a full custody hearing may be held in
the court’s discretion), with B.D. v. Commonwealth, Cabinet for Health and
Family Services, 426 S.W.3d 621, 623 (Ky.App. 2014) (explaining that petitions
pursuant to KRS 620.110 are original actions of a habeas corpus type).
Therefore, we apply the same standard of review to both types of
cases. In reviewing such a habeas corpus type action, we consider whether the
family court’s findings are clearly erroneous, whether it applied the correct law or
whether it abused its discretion. C.K. v. Cabinet for Health and Family Services,
529 S.W.3d 786, 789 (Ky.App. 2017). We believe that the family court made an
implicit finding that the Kuffners by reason of the guardianship order had a valid
basis for maintaining possession of child, and this was appropriate given the
ongoing validity of the guardianship order at that time.
6
KRS 620.110 provides in relevant part that: “Any person aggrieved by the issuance of a
temporary removal order may file a petition in Circuit Court for immediate entitlement to
custody[.]”
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In reviewing the family court’s decision, we believe it appropriately
focused on the best interest of child as there was a valid guardianship order in
effect which gave the Kuffners some right to possession of child and custody over
child had yet to be determined. As noted in Hinton v. Byerly, 483 S.W.2d 138, 143
(Ky. 1972), a case addressing the right to immediate possession of a child, “in
determining the rights of the contesting parties the welfare of the child is never an
irrelevant issue.” Similarly, in C.K., 529 S.W.3d at 788-89, a case brought for
immediate entitlement to custody under KRS 620.110, the focus was on the child’s
best interest above the father’s custodial rights after the mother died.
While Miller v. Harris, 320 S.W.3d 138 (Ky.App. 2010), involved a
custody dispute between a maternal grandmother and a great-aunt and uncle, rather
than an immediate possession of a child dispute, it is instructive. In Miller the
Court opined:
When the choice of custodian is between non-parents, as
in this case, Kentucky courts seek the result that is in the
best interests of the child. Kentucky courts have not
expressed a preference for relatives in non-parent custody
cases. Williams v. Phelps, 961 S.W.2d 40 ([Ky.App.]
1998).
Id. at 141 (footnote omitted noting there was no de facto custodian).7
7
While neither party has a right to possession of child through a custody order, the Kuffners
have more legal right to possess child under the district court’s order of guardianship than Baker
and Justus have based on blood.
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KRS 403.270(2), which explains how custody should be determined,
hinges such determinations on the best interest of the child. We provide the
portions of that statute which are relevant to custody determinations between
nonparents when neither are de facto custodians.8
The court shall determine custody in accordance with the
best interests of the child . . . . The court shall consider
all relevant factors including:
(a) The wishes of the child’s parent or parents . . .
as to his or her custody;
(b) The wishes of the child as to his or her
custodian . . . ;
(c) The interaction and interrelationship of the
child with . . . any other person who may
significantly affect the child’s best interests;
(d) The motivation of the adults participating in the
custody proceeding;
(e) The child’s adjustment and continuing
proximity to his or her home, school, and
community; [and]
(f) The mental and physical health of all
individuals involved[.]
KRS 403.270(2).
8
As the Kuffners did not argue at this juncture of the litigation that they qualified as de facto
custodians, the family court would have no reason to consider provisions relating to de facto
custodian status. This should not be interpreted as being a ruling on our part about an issue that
is not before us.
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In interpreting this statute, the Court in Miller explained:
KRS 403.270 directs the trial court to consider “relevant
factors.” Importantly, it does not restrict the court’s
consideration to events occurring within the children’s
lives or within a particular span of time. Thus, any factor
that affects a potential custodian’s “relationship to the
child” is to be considered.
320 S.W.3d at 144. Therefore, some factors for consideration could include: (1)
the Kuffners’ conduct in the district court guardianship matter (especially had
Baker and Justus filed the complete certified district court record so that it could be
admitted into evidence as they were given the opportunity to do, rather than just
the application for appointment);9 (2) Casey’s actions as executor of Lonnie’s and
Nicole’s estates; (3) the Kuffners’ actions as trustees for child and how they used
or did not use her funds on her behalf;10 (4) the Kuffners’ relationship with child’s
parents and child’s other relatives; (5) the Kuffners’, Baker’s and Justus’ roles in
child’s life before the death of Nicole; (6) the Kuffners’, Baker’s and Justus’
9
We note that there is a distinction between Baker and Justus seeking to challenge the Kuffners’
right to possession by essentially seeking a ruling from the family court that fraud vitiated the
guardianship order, and considering the underlying circumstances surrounding the way that order
was obtained.
10
It appears that Baker and Justus have not yet asked for an accounting or audit regarding how
any funds belonging to child have been used by the Kuffners. This could provide evidence for or
against Baker’s and Justus’ argument that the Kuffners were motivated by profit in seeking to
become child’s guardians. During oral argument, Baker and Justus indicated that child does
have an independent conservator overseeing the confidential settlement account child has due to
the wrongful death case regarding Lonnie but does not have a conservator for other assets. The
Kuffners noted that child has social security in a guardianship account and has a 529 plan.
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current relationship with child; and (7) how child is doing while in the Kuffners’
physical possession.
An application of the best interest test to determine whether a father
was entitled to the immediate possession of his child was explored in C.K. In that
case, after M.K.’s mother and siblings were killed in a fire, the Cabinet took
temporary custody of M.K. and placed her with her grandmother, and then the
circuit court denied father’s petition for immediate custody pursuant to KRS
620.110. C.K., 529 S.W.3d at 788-89. The Court determined that substantial
evidence supported the circuit court’s findings of fact and ultimate ruling regarding
the child’s best interest, explaining as follows:
The circuit court correctly held, and it was uncontested,
that Father had not seen his daughter in a matter of years,
that M.K. was close to grandmother, and that M.K. was
well-adapted and familiar with her school and other
surroundings in Maysville. Testimony, including that of
Father, supported these findings. With the best interests
of M.K. in mind, considering the trauma through which
she had recently lived and the coming adjustments, to her
mother’s absence and her Father’s presence, we cannot
deem erroneous the circuit court’s intention to ease M.K.
– a child of eight –into this new reality. Not only does
the evidence of record support the circuit court’s
conclusions; this seems precisely the situation where the
legal balance of which we speak supra, between parents’
rights and the protection of children, must be struck in
favor of the latter.
Id. at 790.
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In C.K., the child’s best interest was elevated over the father’s right to
possession given the situation. Like M.K., child has experienced a significant
recent trauma due to the death of her mother and appears to be in a placement
where she feels safe. This is even more important considering child’s tender age of
four at the time of the hearing (compared to M.K. who was eight), and the amount
of time she had spent with the Kuffners, both before and after her mother’s death.
In comparison, while Baker has been involved with child, at the time
of the hearing she had not spent nearly the same amount of time with child as the
Kuffners had. While this is not Baker’s fault, as she lives in a different city from
child and after mother’s death the Kuffners were granted guardianship over child,
it is the reality of the situation.11
The best interests of the children were also considered in Scott v.
Scott, 445 S.W.2d 871 (Ky. 1969), an immediate possession case that did not
involve Cabinet removal. In Scott, the Court agreed with the family court that the
grandparents acted improperly be seizing the children of their deceased son away
from their mother simply because the children’s mother proposed to move away.
In doing so, the Court noted that before returning the children to their mother “the
11
Although we noted the restriction of grandmother’s visitation by a subsequent order, it is
irrelevant for our review. Additionally, the restriction was temporary. It would behoove all the
adults involved in child’s life to make every effort to get along and to avoid antagonizing each
other, however we can understand feelings running “hot” given all that has transpired.
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trial court specifically found” that “[t]here [was] no immediate threat to the
children’s wellbeing[.]” Id. at 873. By affirming such a decision, the Court agreed
that the children’s best interest was in being returned to their mother and that her
plan to move was an appropriate parental decision, not a threat to the children’s
well-being and did not justify someone else having custody.
Here the family court found that it would not be in child’s best interest
to be immediately placed with Baker. The family court found that “the child’s well
being is not in danger with the Kuffners” and pointed out that it did not want to
disturb or disrupt child’s life, especially given child’s young age and the trauma
she had experienced. Essentially, while the family court recognized Baker loved
child, the family court identified that removing child could be traumatic for child.
The family court did not err in focusing on what was in child’s best
interest and making a ruling that an immediate removal to Baker’s physical
possession was not in child’s best interest as this was amply supported by the
evidence. Changing custody through a motion for immediate possession is rarely
granted without a full-blown custody hearing unless children were seized away
from their fit parents who had been raising them. When in doubt, family courts
appropriately do not want to disrupt the status quo and cause more upheaval to
children of tender years. While we acknowledge that this may seem unfair to
Baker as she alleges she was precluded from taking possession of child from the
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outset by a fraud perpetrated against her and the district court, the best interest of
child at the time the possession hearing occurred is paramount.
We note that this decision is not an ultimate ruling on custody and
does not preclude the family court from later deciding that placement with Baker
and/or Justus is appropriate. See C.K., 529 S.W.3d at 790-91 (pointing out the
temporary nature of the custody order and acknowledging that the father who was
participating in visitation could prove to be “a worthy custodian in the future”).
We emphasize that this decision has no precedential value in resolving who should
ultimately gain custody of child and we express no opinion on that ultimate issue
which is still pending before the family court. Our decision is limited to the very
narrow grounds relevant to this habeas corpus type action.
Accordingly, we affirm the family court’s denial of Baker’s motion
for immediate possession of child.
ALL CONCUR.
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BRIEF FOR APPELLANTS: BRIEF FOR APPELLEES:
Katie Brophy Sandra B. Hammond
Nolia Batey Louisville, Kentucky
Louisville, Kentucky
ORAL ARGUMENT FOR
ORAL ARGUMENT FOR APPELLEES:
APPELLANTS:
Sandra B. Hammond
Nolia Batey Louisville, Kentucky
Louisville, Kentucky
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