2023-CA-0560-MR
Kentucky Court of Appeals
Bullitt Circuit Court
Opinion by Judge Acree
Date Rendered: October 18, 2024
On December 10, 2017, Mother fatally shot Father and later pled guilty to murder, leaving their Child at the center of legal disputes. Before her incarceration, Mother signed a medical power of attorney granting Great-Aunt authority over the Child’s medical decisions and relinquished physical custody to her. Great-Aunt then moved Child from Henry County to Bullitt County.
On December 12, 2017, Great-Aunt filed a DNA petition in Bullitt County, securing temporary custody the following day. Unaware of this action, Grandparents filed a separate visitation case in Henry County. Grandparents later sought to intervene in the Bullitt County DNA case, challenging Great-Aunt’s custody and requesting joint custody. While their motions for custody were denied, they were granted visitation rights with restrictions on discussing Mother’s criminal case with Child.
In July 2018, the family court awarded permanent custody to Great-Aunt. Despite receiving notice, Grandparents did not object or appeal this decision. Over the years, disputes arose over visitation, leading Grandparents to seek increased visitation and, eventually, custody in 2021. Great-Aunt countered by seeking to limit their visitation. After a December 2022 hearing, the family court issued a January 2023 order maintaining the existing custody and visitation arrangements, deeming them in the Child’s best interest. Grandparents’ motion to alter or vacate the order was denied in April 2023.
Grandparents raised two primary arguments on appeal. First, they claimed the family court violated their due process rights by adjudicating the DNA petition without proper notice, despite their efforts to intervene. Second, they argued the Friend of the Court (FOC) failed to fulfill his statutory obligations to investigate the case.
The claim of a due process violation falls short. While the family court did not formally rule on Grandparents’ motion to intervene in the DNA case, Kentucky law treats an implied denial as appealable, a remedy they did not pursue. Despite this, the family court effectively treated them as participants, granting visitation rights and access to records. Notices were sent to their counsel, whose failure to update contact information does not excuse the lack of response. Furthermore, Grandparents could have appealed earlier orders, including the April 2018 denial of joint custody and the July 2018 custody award, but did not.
The family court emphasized the necessity of adhering to procedural rules, rejecting Grandparents’ attempts to revisit 2018 decisions. They were granted a full evidentiary hearing in December 2022 to argue for custody, resulting in the January 2023 order. Their claims lacked procedural and substantive merit, and the rulings were properly upheld.
Grandparents’ argument regarding the FOC is equally unconvincing. The FOC’s role, as outlined in KRS 403.290-300, is advisory and allows broad discretion. Grandparents failed to identify any mandatory duties the FOC neglected and conflated his role with that of a fiscal-court-created FOC under KRS 403.090, which carries different responsibilities. The family court was satisfied with the FOC’s performance, and Grandparents did not demonstrate how the FOC’s report constituted reversible error. Without pointing to specific judicial errors, their argument cannot justify reversal.
Digested by Nathan R. Hardymon