Case No. 2024-CA-0322-MR
Jefferson Family Court
Opinion by Judge Karem
Date Rendered: May 2, 2025
Issues: Whether (1) Family Court erred by allowing the previously appointed FOC to act as legal counsel for one parent, (2) the Family Court Judge erred by failing to recuse, and (3) the Family Court erred by awarding attorney’s fees in Grandparent’s visitation action pursuant to KRS 403.220
Grandparents were determined to be de facto custodians of two minor children. During the De Facto Custodian proceedings, a Friend of Court (“FOC”) was appointed.
Once De facto custodian status was established, Grandparents filed a motion for visitation. The previously appointed FOC began identifying as Father’s attorney and began filing motions on his behalf. The Family Court ordered Grandparents to advance $2,000 towards Mother’s attorney’s fees. Mother’s attorney then filed two motions on behalf of “Respondent Parents,” requesting for attorney fees to be paid to himself and the FOC. A hearing was held on all outstanding issues at which the previously appointed FOC identified herself as Father’s attorney.
The Family Court denied Grandparent’s request for visitation, specifically stating it had been privy to communications in various modes from Grandparents attacking Parents and ordered Grandparents to pay $2,000 of Parent’s attorney’s fees. Grandparents filed a motion to recuse the Family Court Judge, and to alter, amend, or vacate his rulings on visitation at attorney’s fees. The Family Court denied Grandparent’s motions. Grandparents appealed.
The Court of Appeals vacated the Family Court’s order finding that the FOC tainted the proceedings when she deviated from her role as FOC by representing Father. This was an explicit violation of KRS 403.090(6) which states that “[t]he friend of the court shall not directly or indirectly represent any party to a divorce action except as herein authorized to represent the minor children of parties to a divorce action…”. The Court of appeals further disqualified the FOC from further participation in the litigation at the Family Court level and on appeal.
The Court of Appeals further found the Family Court erred when it denied Grandparents’ motion to recuse. The Court of Appeals found that the Judge’s impartiality could reasonably have been questioned which necessitated his disqualification. The record did not contain communications in which Grandparents attacked Parents, and the judge failed to address this when questioned by Grandparents.
Finally, the Court of Appeals vacated the Family Court’s award of attorney’s fees finding that that KRS 403.220 does not apply to grandparent visitation actions which are governed by Chapter 405.
Digested by Emily T. Cecconi