BRANTLEY FAIRCHILD v. KRISTIAN R. FAIRCHILD (NOW ROUP)
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RENDERED: NOVEMBER 30, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000760-ME
BRANTLEY FAIRCHILD
v.
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 04-CI-00526
KRISTIAN R. FAIRCHILD (NOW ROUP)
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; HOWARD, JUDGE; GUIDUGLI,1 SENIOR
JUDGE.
GUIDUGLI, SENIOR JUDGE: Brantley Fairchild (“Brantley”) appeals the March 13,
2007, findings of fact, conclusions of law, order and judgment and the March 15, 2007,
order of the Greenup Circuit Court. Those judgments effectively denied Brantley
visitation with his and Kristian Fairchild's (“Kristian”) daughter. We reverse and remand.
1
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
The parties were married in 1991 and separated in 1995. At the time of the
parties separation, Kristian was residing in Beaverton, Michigan, and Brantley relocated
to Branson, Missouri. There was one child born of the marriage, Martha, in 1994. The
last time Brantley had contact with Martha was Christmas of 1996.
In 2002, Kristian and Martha moved from Michigan to Kentucky. Kristian
filed for divorce in 2004 and on January 10, 2005, a divorce decree was entered. The
decree awarded sole custody to Kristian and ordered that Brantley was to have no
visitation with Martha, pending further court orders. Brantley became aware of the
decree and on September 28, 2006, filed a motion for visitation. The issue was referred
to the Domestic Relations Commissioner (“DRC”) and a hearing was conducted on
December 19, 2006. A portion of the hearing consisted of an interview between the DRC
and Martha.
On January 19, 2007, the DRC submitted his report recommending that
Brantley not have any contact with Martha. In support of his conclusion, the DRC
concluded that Martha had been traumatized by Brantley's absence in her life and to force
reunification would only result in further trauma for Martha. The circuit court entered its
findings of fact, conclusions of law, order and judgment on March 13, 2007, overruling
Brantley's motion for visitation, ordering him to pay the court costs and attorney's fees of
Kristian and ordering that any contact between Brantley and Martha was only to be
commenced by Martha. Two days later, the court issued an order confirming and
adopting the DRC's report. This appeal followed.
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When reviewing a family court's decision regarding visitation, this court
will reverse only if the trial court abused its discretion or, in light of the facts and
circumstances, its decision was clearly erroneous. Drury v. Drury, 32 S.W.3d 521, 525
(Ky.App. 2000).
Brantley argues that the court's denial of visitation with Martha violated his
fundamental right to visitation under KRS 403.320. The relevant section of KRS 403.320
reads as follows:
(1) A parent not granted custody of the child is entitled to
reasonable visitation rights unless the court finds, after a
hearing, that visitation would endanger seriously the child's
physical, mental, moral, or emotional health. Upon request of
either party, the court shall issue orders which are specific as
to the frequency, timing, duration, conditions, and method of
scheduling visitation and which reflect the development age
of the child.
The burden of proving that visitation would harm the child is on the party
seeking to deny visitation. Smith v. Smith, 869 S.W.2d 55 (Ky.App. 1994). In Kulas v.
Kulas, 898 S.W.2d 529 (Ky.App. 1995), a panel of this court found that “restrict” means
to provide the non-custodial parent with something less than reasonable visitation. The
same panel found that modification provisions of the child visitation statute are not to be
used in an effort to punish an errant parent. Id.
Brantley specifically argues that the circuit court improperly used a best
interest standard as opposed to the serious endangerment standard required by the statute.
Brantley references that portion of the March 13, 2007, order which states “It is the
Conclusion of the Court, it is in the best interest of the infant child, [that] the following
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Order and Judgment be entered.” Kristian argues that the serious endangerment standard
was met by the DRC's report and dicta therein. We do not agree. In his report, the DRC
states “Martha Rose evidences a strong and active resistance to any opportunity to know
her father or to have any contact or relationship with him.” He concludes his report by
stating:
It is conventional wisdom that a child growing up (even in a
divorce) needs both parents and significant contact with both
parents. It is not unusual to see children who loose [sic]
contact with one or the other parents [sic], to actively seek
that parent out after long periods of time even into adulthood.
However, this wisdom is sometimes tested by an extreme fact
situation, such as in this case. Usually there would be
considered some type of restricted visitation in the presence
of the child's mother to determine if the relationship can be
established and is worth developing from the perspective of
the child and the absent parent. However, after the interview
it is obvious to the Commissioner, that the 12 year old young
lady has dealt with the fact that apparently her father did not
care enough for over 10 years to even send her a letter, card,
attempted phone contact or come to this area to visit. Given
that situation, the Commissioner declines to further
traumatize her by ordering her to visit with an individual who
is a complete and total stranger to her. Any re-approachment
[sic] between the respondent and his daughter, if it ever
occurs, should come from the wishes of the daughter, either
during her continuing minority or adulthood, not at the
insist[e]nce of the respondent who has effectively abrogated
any parental claim or entitlement that he might have
otherwise had.
It has long been held in custody hearings that the wishes of the child,
although warranting consideration, are not binding on the court. Bowman v. Bowman,
313 Ky. 806, 233 S.W.2d 1020 (Ky. 1950). We find the same to be true in a visitation
hearing. This is especially true because the visitation statute is specifically concerned
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with the non-custodial parent's entitlement to visitation, whereas the child's wishes are
never mentioned. This court has regarded a parent's right to visitation as natural, sacred
and exceedingly important. Smith, 869 S.W.2d at 57.
The non-custodial parent is not required to show
visitation is in the child's best interest . . . clearly the statute
has created the presumption that visitation is in the child's
best interest for the obvious reason that a child needs and
deserves the affection and companionship of both its parents.
Id at 56. KRS 403.320(1) states that visitation should not take place if it would seriously
endanger the child mentally or physically. While we recognize that there are situations in
which a child could be endangered by being forced to have a relationship with a
previously absentee parent, we are not satisfied that such a situation exists here.
After reviewing the hearing transcript, it appears as though the DRC's
report is based almost entirely upon his own testimony, not Martha's. In the six pages of
transcription covering the interview between the DRC and Martha, Martha only manages
to get out about half a dozen complete sentences. The only statements which she makes
in regards to her father are “He's a stranger to me, sir.” and “I have never met him. I don't
really want to get to know him, sir.” Martha never states that she is afraid of Brantley or
afraid to begin a relationship with him. She simply states that she does not wish to. Nor
does she ever state or even imply that she has or will be traumatized by a relationship
with her father.
There is no testimony by Martha which we believe “evidences a strong and
active resistance to any opportunity to know her father or to have any contact or
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relationship with him.” In fact, the bulk of Martha's contribution to the discussion
focused on her mother, not her father. When asked by the DRC if she would like to say
anything else, she asked if she could speak about her mother. She then stated “My mom
is a good mom. I love my mom very much. She's never dated or partied or anything.
She's always taken good care of me and loved me.” Martha also states “I just wanted to
say that my mother was a really good person to me.” This rant suggests that Martha was
unclear about why she was there and possibly seemed to believe that she was at risk of
being taken from her mother.
On the other hand, the DRC contributed greatly to the conversation
between himself and Martha. The first thing he tells Martha is:
Your mother said something about that you've really been
scared about all this, and so I wanted to talk to you for a
minute. There's one thing that's not going to happen. Of
course, I'm not going to order you to go off with somebody
that's basically a stranger with you. Okay? Forget that. That's
not on the table. All right?
Instead of asking Martha if she is scared, the DRC testifies for her. He also
assures her that he will not order unsupervised visitation, testifies that Brantley is a
stranger to Martha and that she does not “even know who he is as a person” and
continues to assure Martha that he will not require that she have visitation with Brantley.
Other than this testimony, given largely by the DRC, the only other testimony relating to
Martha's well-being was given by her mother who stated that Martha had been
experiencing nightmares and had become physically ill. No proof was offered supporting
this testimony. Not even Martha herself testified as such. There was no expert testimony
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concluding that Martha faces danger if forced to spend time with her father. It is our
conclusion that Kristian failed to meet her burden of proving that visitation with Brantley
would cause harm to Martha. Martha's statement that she does not “really want to get to
know him” fails to rise to the standard of serious endangerment.
We do not believe the circuit court's finding that the best interests of
Martha were served by terminating Brantley's visitation was supported by sufficient
evidence or the appropriate findings. Nor are we satisfied that the DRC's conclusion that
Martha has been traumatized and will continue to be traumatized is supported by
sufficient evidence, if any at all. The statements made by the DRC to Martha suggest he
had already formed an opinion, fashioning his claim that it was his interview with Martha
which brought about his decision, as unconvincing. Lastly, this court questions the
validity of an unbiased fact-finder in this case, given a statement by the DRC to Martha
that he is acquainted with her uncle who had testified on behalf of Kristian just moments
before.
For the foregoing reasons, the March 13, 2007, and March 15, 2007,
judgments of the Greenup Circuit Court are reversed and remanded for proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tracy D. Frye
Russell, Kentucky
James E. Armstrong
Greenup, Kentucky
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