P. (J. C.) VS. T. (N. A. P.)Annotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MARSHALL FAMILY COURT
HONORABLE ROBERT D. MATTINGLY, JR., JUDGE
ACTION NO. 07-CI-00143
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
COMBS, CHIEF JUDGE: Appellant (Father)1 appeals from a post-decree order of
the Marshall Family Court that suspended his visitation privileges with his son,
J.R.P., until the child could be evaluated and counseled by a mental health
professional. We affirm.
For the preserving of confidentiality in cases involving juveniles, we have utilized generic
designations and initials rather than the actual names of the parties.
In January 2000, a decree of the Henderson Circuit Court dissolved
the marriage of Appellant and Appellee (Mother). The parties’ property and child
custody settlement agreement was incorporated into the decree. Their agreement
provided that the parties would share joint legal custody of J.R.P. (three years of
age at that time). Under the terms of the agreement, J.R.P. would continue to
reside with Mother. He was to have overnight visitation with Father every other
weekend, a mid-week visit, and scheduled holiday visits.
In March 2007, Father filed a motion in the Henderson Family Court
alleging that for several years, Mother had failed to comply with the visitation
arrangement. The matter was eventually transferred to the Marshall Family Court,
which held an evidentiary hearing in August 2007. Father presented testimony at
the hearing indicating that he had not visited with his son since 2002. Mother
produced evidence to the court indicating that she had good cause not to comply
with the visitation order. The court also interviewed J.R.P. in chambers. The child
told the court that he was afraid of his father and provided specific and disturbing
explanations for his reluctance to visit with him.
Following the hearing, the family court ordered Father and J.R.P. to
undergo counseling with a mental health professional. Based upon the evidence
presented at the hearing, the family court concluded that Father’s visitation could
not be safely and immediately restored. The counseling sessions were intended to
re-introduce father and son so that a regular visitation schedule eventually might be
resumed. The court scheduled a hearing to reconsider the visitation dispute two
months later on October 16, 2007.
Two weeks later, the court indicated to the parties that it had received
an ex parte communication regarding J.R.P. The unsigned correspondence, which
was printed on the letterhead of J.R.P.’s elementary school, indicated that it had
been prepared by the school’s principal. The correspondence described in some
detail seriously disturbing comments made by J.R.P. to others concerning his
relationship with his father and his dread at the prospect of resuming contact with
On October 17, 2007, the court gave notice to the parties that a cover
letter and the summary of a single counseling session had been duly filed by
Carolyn Busby of The Counseling Center. The counselor’s summary indicated
that J.R.P. had refused to participate in a counseling session scheduled for October
10, 2007. According to Busby’s summary, J.R.P. believed that the counselor had
tricked him during a prior session by having his father in the room without J.R.P.’s
advance knowledge or warning. J.R.P was adamant that he would not return to the
center. Busby prepared a comprehensive progress report describing the course of
several counseling sessions, which was subsequently filed in the record.
In an order entered on January 15, 2008, the Marshall Family Court
concluded that Father’s continued visitation with J.R.P. “would be emotionally
harmful to the parties’ son and would seriously endanger the child’s physical,
mental and/or emotional health.” According to the order, evidence before the court
indicated that J.R.P. had been profoundly emotionally disturbed by Father’s
attempt to re-establish visitation. A social worker, Deloris Beyreis, was identified
by the court as J.R.P.’s new counselor. The order required J.R.P. to begin therapy
immediately, and Beyreis was ordered to provide the court with periodic reports
with regard to his progress. Finally, the court set the matter for further review at a
hearing scheduled for July 8, 2008. This appeal followed.
On appeal, Father contends that the family court abused its discretion
by suspending visitation. He asks this court to vacate the court’s order and remand
the matter for entry of an order restoring his visitation privileges immediately.
We find no basis upon which to grant the relief sought.
Custody and visitation issues arising out of dissolution actions are
governed in Kentucky by the provisions of Kentucky Revised Statutes (KRS)
403.320. The cornerstone of our statutory scheme is an abiding and overriding
concern for the well-being of children. The factors enumerated in the statute
reflect that fundamental policy:
(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.
(2) If domestic violence and abuse, as defined in KRS
403.720, has been alleged, the court shall, after a hearing,
determine the visitation arrangement, if any, which
would not endanger seriously the child’s or the custodial
parent’s physical, mental, or emotional health.
(3) The court may modify an order granting or denying
visitation rights whenever modification would serve the
best interests of the child; but the court shall not restrict a
parent’s visitation rights unless it finds that the visitation
would endanger seriously the child’s physical, mental,
moral, or emotional health.
We have reviewed the entirety of the record in this matter. It contains
credible indications that J.R.P.’s well-being is seriously jeopardized when the child
is forced to visit with his father. The court expressed grave concern that the child
might resort to suicide if pressured to continue visitation at the present time.
Father was not unduly prejudiced by the court’s receipt of any of this information;
on the contrary, he received a credible explanation for the order. The evidence
provides more than an adequate basis for the family court’s suspension of Father’s
right to visit with his son.
The family court is statutorily authorized in clear terms to modify an
order granting visitation rights whenever modification would serve the best
interests of the child and to restrict visitation where the visitation would endanger
the child’s physical, mental, moral, or emotional health. We cannot conclude that
the court abused its discretion by suspending Father’s visitation under the
circumstances as they existed at the time the order was entered.
We affirm the order of the Marshall Family Court.
DIXON, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa A. DeRenard
K. Bryan Ernstberger