No. 2023-CA-0942-MR
Jefferson Family Court, Hon. Judge Ogden
Opinion by Judge Acree
Date Rendered: October 25, 2024
Family Court appointed a Friend of the Court (“FOC”) to investigate and make a report regarding the parties’ parenting time schedule, and Mother’s status as sole decision maker for the parties’ two children.
Father moved to take the deposition of the children’s therapist. His motion was opposed by Mother, who filed a Motion for Protective Order asking the Court to prevent Father from taking the therapist’s deposition.
Ten days before the hearing, the FOC filed his report, identifying the children’s therapist among those he interviewed. In accordance with KRS 403.300(3), Father requested the FOC’s file of underlying data, reports, including diagnostic reports. Father did not receive the data until the morning of the hearing.
Two days before the hearing, the court entered an order quashing the deposition of the therapist as it was “contrary to the best interests of the children.” Father moved to exclude the FOC’s report and testimony claiming he had too little time to review the report, and that both would be based upon inadmissible hearsay testimony from the therapist.
The hearing was continued to a later date, at which the FOC gave testimony. After the hearing concluded, Father filed a Motion to strike the FOC’s report and testimony because he did not have a meaningful opportunity to challenge the FOC’s sources, namely the children’s therapist. The Family Court denied Father’s motion.
On appeal, Father argued that the Family Court violated his due process rights under KRS 403.300. The Court of appeals agreed.
Family Courts are authorized to appoint FOC’s to conduct investigations and submit reports on custodial arrangements pursuant to KRS 403.300. KRS 403.300(3) contains due process protections which arise after the FOC files his/her report with the court. The FOC’s report can be received into evidence only if these due process requirements are met.
One of those due process protections is a pre-hearing right to acquire the written materials upon which the FOC relied upon to prepare his/her report. The Kentucky Supreme Court has made it clear that “the parties’ right to due process includes the right to cross-examine the authors…evidentiary reports upon which the fact finder is entitled to rely….all require that the parties be made aware of the court’s inquiries and be allowed to cross-examine the court’s sources of information.” Morgan v. Getter, 441 S.W.3d 94, 112 (Ky. 2014).
The Court of appeals held that the Family Court’s protective order prohibiting Father from taking the deposition of the children’s therapist expressly violated Father’s due process rights by denying him the opportunity to cross-examine a source of the FOC’s report. Relying upon Greene v. Boyd, 603 S.W. 3d 231, 239 (Ky. 2020), the Court of appeals reasoned that it is “error to admit and consider statements contained within the FOC’s report without giving the parties a meaningful opportunity to challenge the sources of those statements.”
Digested by Emily T. Cecconi