RANDOLPH (JESSE) VS. ROSE (KATRINA), ET AL.
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RENDERED: OCTOBER 1, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000382-ME
JESSE RANDOLPH
v.
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE JENNIFER UPCHURCH CLARK, JUDGE
ACTION NO. 09-CI-00325
KATRINA ROSE AND
MARY MELTON
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MOORE, AND NICKELL, JUDGES.
MOORE, JUDGE: Jesse Randolph, proceeding pro se, appeals the Wayne Circuit
Court’s order denying his motion for visitation in jail with his minor child, as well
as his request for a hearing on the motion. After a careful review of the record, we
reverse because the circuit court failed to hold the required hearing and to enter its
findings regarding the best interests of the child in the matter, and we remand for
further proceedings.
In the circuit court, Randolph petitioned the court for in-jail child
visitation, and he moved for a hearing on the matter. The court denied the motion
for in-jail visitation without a hearing and ordered telephone visitation weekly at
Randolph’s expense. Randolph now appeals, contending that the circuit court
erred in failing to hold a hearing to determine whether in-jail visitation should be
granted and in failing to enter findings concerning the best interests of the child.
Pursuant to KRS 403.320,
(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.
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This Court has held that this statute creates a 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.” Smith v. Smith, 869
S.W.2d 55, 56 (Ky. App. 1994). The Smith Court continued, noting that “[t]he
burden of proving that visitation would harm the child is on the one who would
deny visitation.” Id. “[U]nder our statutory scheme, one may not be deprived of
the right to visit his child without a hearing.” Id. This Court stated that, in Smith,
there had “never been an evidentiary hearing, much less a finding, that [the child]
would be endangered in any manner by visiting her father in prison.” Id. The
Smith Court then held that a parent’s incarceration, “alone does not . . . justify
denial of [the parent’s] right to visitation as a matter of law.” Id. at 57.
Subsequently, this Court reiterated that a “parent’s incarceration does not suspend,
nor deprive him of, his right to a hearing before he is denied visitation with his
child.” Alexander v. Alexander, 900 S.W.2d 615, 616 (Ky. App. 1995).
In the present case, the circuit court erred in failing to hold a hearing
concerning Randolph’s petition for visitation and erred in failing to enter its
findings regarding the best interests of the child.
Accordingly, the order of the Wayne Circuit Court is reversed and this
case is remanded with instructions for the circuit court to hold the required hearing
on Randolph’s petition for visitation and to enter findings concerning whether injail visitation is in the best interests of the child.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jesse Randolph, Pro se
West Liberty, Kentucky
N/A
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