FAMILY LAW: Custody, parenting time: T.A.N. V. M.J. (COA 9/26/2008)

T.A.N.  V.  M.J.
FAMILY LAW:  Custody, parenting time
2007-CA-002584
PUBLISHED: AFFIRMING
PANEL: LAMBERT, PRESIDING; STUMBO, THOMPSON CONCUR
JEFFERSON COUNTY
DATE RENDERED: 9/26/2008

Mother appealed TC’s order providing additional parenting time to her ex-boyfriend, Father.

FACTS:
Mother and Father lived together briefly and conceived Child. Mother accused Father of domestic violence and Father accused Mother of drug use during this time. Mother and Father had no further contact until they went to court to determine custody and visitation. Initially, Mother and Father agreed on a temporary visitation schedule allowing Father short but frequent periods of visitation with child. They also agreed on a custodial evaluator, and that either party had the right to request the other to participate in a drug screening and that Father was to pay the costs for such tests. All of these agreements were adopted into TC’s order. While the permanent resolution of the issues was still pending, Mother filed motion to suspend Father’s visitation with Child, due to Father’s alleged alcohol abuse while Child was in his care. TC overruled Mom’s motion and after the hearing issued an Order giving Father frequent, unsupervised parenting time with Child. Mother subsequently filed a motion for TC to clarify its judgment and to provide particularized additional findings of fact, for supervised visitation, and for clarification on the required drug testing established in previous orders. The parties agreed to attend mediation though the custodial evaluation was not complete. Mediation having failed, several months later, TC ordered Father to contact custodial evaluator and to submit to drug screening on a weekly basis or lose his visitation for that week.

On the day of the trial, Father’s attorney fell ill and TC rescheduled trial. Mother indicated to TC that day that Father had not complied with TC’s order to contact Dr. Cebe and had not complied with the drug screens. That day and later at trial, Father testified that he had contacted custodial evaluator but without prepayment she would not begin the custodial evaluation. TC determined that case could proceed without the custodial evaluation, given that a home study had recently been conducted in 2006 and that the case focused largely on factual issues, which were able to be addressed through testimony and argument. TC found that Father wanted more time with Child, that Father’s testimony was that he did not use drugs, and that Father had enrolled in a parenting class to prepare to care for a baby. It found that Father has sole custody of another daughter, whom TC stated was “thriving in his care and is an honor roll student.” Further, TC took judicial notice of parenting concerns regarding Mother due to her previous drug convictions and removal of sibling children through state prosecuted child protective actions. TC then awarded sole custody of Child to Mother due to “the extent of domestic violence in the relationship.” TC gave Father three weekends per month and one overnight per week.

One week after issuance of TC’s order, Mother filed motion to modify visitation requesting reduced parenting time for Father, arguing that only competent evidence TC had to consider was the home study, and that the home study led the parties to agree that a custodial evaluation should be conducted and TC issued such an order. She renewed her previous arguments that Father had not complied with previous orders regarding the custody evaluation or the required drug screenings. She then argued that TC had ignored its own orders and had instead allowed Father to verbally smear her character by asking the court to take judicial notice of dependency actions that were eight years old. Finally, Mother argued that her proposed visitation schedule was the standard visitation schedule when one parent has sole custody and the other visitation. Father responded that he could not afford the allergy testing of the home, the drug tests, or the custodial evaluation. He argued that TC could conduct the trial without the custodial evaluation and drug tests, because TC still allowed both sides to present evidence and testimony. TC overruled Mother’s motion, providing no grounds for the ruling but simply that the motion to alter, amend or vacate is overruled.

ANALYSIS:
On appeal, Mother presented the same arguments as at trial, in addition to an argument that TC erred in not taking into consideration her work and school schedule when ordering the parenting schedule

CA found that though parties agreed to custodial evaluation and TC adopted agreement into its orders, at no time did TC, on its own, determine that a custodial evaluation was necessary. It was also within TC’s discretion to let trial proceed without custodial evaluation given that the case had gone on for two years. CA held that Mother’s claim that TC ignored its previous drug screen orders was without merit, as Father underwent drug screenings for seven months, none of which came back positive for drug use. Father testified that he could no longer afford to have weekly screenings and was not being permitted to see Child, even when the screenings came back negative. Mother’s claims that TC did not take into account her school and work schedule were not preserved on appeal, and therefore we need not address them. Finally, CA found that TC considered home study in its award of visitation to Father and that TC’s award was not an abuse of discretion. TC’s order affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

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