M. (S.) VS. C.(P)

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RENDERED: DECEMBER 30, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2009-CA-001111-ME S.M. v. APPELLANT APPEAL FROM MADISON CIRCUIT COURT HONORABLE JEFFREY M. WALSON, JUDGE ACTION NO. 07-CI-01769 P.C. APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON AND STUMBO, JUDGES; KNOPF,1 SENIOR JUDGE. STUMBO, JUDGE: Mother2 appeals the order of the Madison Circuit Court awarding Father sole custody of their minor child. Mother argues that the circuit court erred in awarding sole custody to Father. Father claims the court’s findings of fact were not erroneous and that the court properly exercised its discretion in the custody determination. We affirm. 1 Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580. 2 Since this case involves a minor child, we will not use the parties’ names in our opinion. Mother and Father began dating sometime in 2005 and moved in together in September of 2007. The parties’ minor child (hereinafter referred to as Child 1) was born October 2, 2007. The relationship between Mother and Father deteriorated shortly after the birth of Child 1. Father initiated custody proceedings on December 12, 2007, when he discovered Mother had gone to Maine to live with her mother and taken Child 1. The parties attempted reconciliation and even went to counseling, but to no avail. After a number of court proceedings, a final custody hearing was held on April 23, 2009. Mother was seeking joint custody and Father wanted sole custody. The trial court found that Mother and Father were unable to cooperate and therefore decided sole custody was in the child’s best interest. Sole custody was given to Father. This appeal followed. Further facts will be discussed when they become relevant to our opinion. In reviewing a decision of the trial court regarding the custody of a child, “the test is not whether we would have decided differently but whether the findings of the trial judge were clearly erroneous or he abused his discretion.” Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974)(citing Hamilton v. Hamilton, 458 S.W.2d 451 (Ky. 1970)). When dealing with child custody issues, the trial court must utilize KRS 403.270. The specific sections of this statute that are relevant for our purposes are KRS 403.270(2)(a)-(f). The court shall determine custody in accordance with the best interests of the child and equal consideration shall be 3 given to each parent and to any de facto custodian. The court shall consider all relevant factors including: (a) The wishes of the child’s parent or parents, and any de facto custodian, as to his custody; (b) The wishes of the child as to his custodian; (c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests; (d) The child’s adjustment to his home, school, and community; (e) The mental and physical health of all individuals involved; (f) Information, records, and evidence of domestic violence as defined in KRS 403.720; KRS 403.270(2)(a)-(f). Based on the trial court’s findings of fact, we cannot say the court was clearly erroneous or abused its discretion. It appears as though both parents were on equal footing when it came to the listed statutory factors. Both parents wanted custody of Child 1. Child 1 was too young to express his wishes regarding custody. Child 1 had a good relationship with Father’s family who lived in Kentucky. Mother had no immediate extended family in Kentucky, but she did have custody of a child from a previous relationship (hereinafter Child 2). Child 1 and Child 2 got along well. Child 1 was too young to be able to determine his adjustment to his home, school, or community, but both parents had a residence that could accommodate Child 1. A mental evaluation was performed and both 4 parents were determined to be fit parents. Mother did have a domestic violence order (DVO) against Father, but the court felt that it was not relevant to the custody proceeding because it did not affect the child or his relationship to his parents. KRS 403.270(3). The issue the trial judge focused on was whether Mother and Father could cooperate and make joint custody reasonable. The trial court found joint custody would not work in this case because the parents could not agree on anything or make joint decisions. Since future cooperation between Mother and Father is a factor for consideration, Squires v. Squires, 854 S.W.2d 765 (Ky. 1993), we find the court did not abuse its discretion in awarding one parent sole custody. We also find that awarding Father sole custody was not a clearly erroneous decision or an abuse of discretion. The court had to choose one parent over the other. Evidence presented at the hearing showed both parents were willing and able to care for Child 1, but both had made mistakes. The court emphasized the fact that Mother had “absconded” to Maine with Child 1. The trial court stated that it did not want this to happen again. We cannot say the trial court abused its discretion. Accordingly, we affirm the order giving Father sole custody of Child 1. ALL CONCUR. 5 BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Sean M. Pierson Richmond, Kentucky Nanci M. House Winchester, Kentucky 6

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