FAMILY LAW: Child custody and effect of mother’s relocation outside of state on determination of child’s best interests; Fenwick: FRANCES V. FRANCES (SC 10/23/2008)

TC awarded primary physical custody of Child to Dad. Mom claimed that TC's findings of fact were clearly erroneous and that TC improperly considered her relocations as a factor in its decision.

1. Background The parties were married thirteen years when Mom filed for divorce in May 2004 and Dad moved to the next town a month later. A dissolution decree was entered on June 8, 2005 but custody, visitation, and child support were reserved. A few months after the parties filed for divorce but before entry of the decree parties entered an agreed order on child support Custody and parenting time was never formalized, but the parties shared almost equal time but Mom functioned as the primary residential parent. Both parties adhered to the informal custody agreement until April 2005, when Mom removed Child from school and relocated to Iowa without notifying Dad or TC. Dad filed an emergency motion for temporary custody shortly thereafter, at which time the parties were awarded temporary joint custody. The order provided for nearly equal time sharing and reasonable telephonic communication between the parties and Child. On June 28, 2005, TC awarded joint custody with primary physical custody to Dad, concluding that Mom's unilateral decision to remove Child from school and relocate to Iowa without notifying Dad disregarded the child's best interests. CA affirmed TC, holding that TC was in the best position to make a custody determination and the decision was neither clearly erroneous nor an abuse of discretion.

II. Analysis Mom argued that it was unreasonable and unfair in light of the evidence for TC to name Dad primary residential custodian when she functioned as Child's primary caregiver throughout her life. Additionally, she argued that it was erroneous for TC to conclude the relocation to Iowa was not motivated by a desire to improve living conditions. Though Mom attempts to characterize TC’s determinations as two distinct errors, CA found that the bottom line is that the finding regarding her relocation to Iowa was simply part of the consideration in determining that it was in Child’s best interest for Dad to be her primary residential custodian.

As TC in this case properly noted, its custody ruling was not entered in response to a motion to modify a permanent order of custody; rather, it was actually the custody determination. As such, TC properly considered the standard required by KRS 403.270, the custody determination statute, which states that custody shall be determined in accordance with the best interests of the child giving each parent equal consideration . The statutory guidelines of KRS 403.270 do not include a definition of the best interests of the child standard; however, KRS 403.270(2) requires TC to consider all relevant factors and provides a list of non-exclusive, demonstrative factors to be considered in custodial determinations. Citing Fenwick as authority, Mom argued that as the primary caregiver in Child's life up until the final custody decree, she was entitled to relocate with her child and that Dad was required to show that the move seriously endangered the child, and that the harm from change of custody to him would be outweighed by the good. However, SC in Fenwick did not consider that relocation had been raised prior to entry of the final custody decree, and thus applied KRS 403.340, the modification of custody statute. In so doing, SC erred because it did not distinguish between a temporary custody order and a custody decree. The effect of relocation by a parent with the child on custody and visitation must be viewed in light of whether relocation occurs pre- or post-decree.

KRS 403.340, the modification of custody statute, speaks to modification of a custody decree. Though Kentucky's child custody statutes include no express definition of custody decree, the statutes distinguish between interlocutory child custody orders and decrees, with the latter meaning a final decision that ends the custody proceeding, is immediately appealable, and is subject to modification at a later date. The decree is the "judgment" (as defined in CR 54.01) in a custody case. Any order entered pursuant to KRS 403.208 is a temporary custody order; such decisions are "pendente lite," "interlocutory," or "non-final." The trial judge's "final" decision about custody is the custody decree. Finality in this context is different than in most others, however, as the decision, while immediately appealable, is subject to modification at a later time under KRS 403.340.

I n making the final custody decree, TC must apply KRS 403.270, which has a best interests standard. Consequently, most of the discussion in Fenwick about the standard to be applied to modification of custody must be disregarded in this case, as must any rule that appears to give a preference on relocation to a primary residential parent. Here, TC correctly applied the best interests standard, and while Mom obviously disagrees with its findings, this Court cannot depart from them unless the factual findings are clearly erroneous or TC abused its discretion in applying the law.

Though TC stated the relocation of Mom was a substantial factor in the custodial determination, the record also indicates that TC placed significant weight on Child's strong relationship with her father, frequent interaction with the father's extended family, and adjustment within the community. Mom's unilateral decision to disregard these substantial components of Child's life supports the conclusion that it is in Child's best interests that the Dad function as primary residential custodian.

Although Mom did relocate with the child, this case is not about the typical relocation questions of whether the relocation warrants a change of custody or of timesharing. Since this was the actual custody determination, TC had a clear directive to make its decision based on the best interests standard set forth in KRS 403.270. After reviewing the record, it is clear TC's decision was supported by substantial evidence. While some of the evidence conflicted with TC's conclusions, and a different trial court or a reviewing appellate court might disagree with TC, the standard on appellate review requires a great deal of deference both to its findings of fact and discretionary decisions. CA affirmed .