Title: Kentucky: Appeals Court Reverse and Remands Judgment on Custody Modification Motion. BY: Crystal S.

Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/

The Kentucky Court of Appeals ruled that in Corns v. Corns, 343 S.W. 3d. 622, 2011 Ky. App. LEXIS 113 (Ky. CT. App. 2011) the mother’s motion to change custody violated the father’s right to due process under the 14^th Amendment because he had not received notice that such hearing would be taking place.

Taffy and Gary Corns, who had divorced in 2007, have a daughter, Allison Corns of whom they share joint custody. When joint custody was established, there had been no primary residence decided. In 2008, Taffy Corns had filed for a custody modification based on the idea that her and Gary could not decide on which district Allison should go to school in. Taffy felt that it would be in the best interest of the child for her to go in the specific county. The Court found that there was no proof that it would be in the child’s best interest, and denied the motion.

In 2009, Gary filed in court to prevent Taffy from allowing Allison to have a tonsillectomy. Gary felt that the procedure was unnecessary despite the medical opinions Taffy had received. The Court allowed Gary to get a second opinion from a doctor of his choice. The doctor Gary had sought opinion from also concluded that the procedure was unnecessary.

At the hearing for the tonsillectomy case, Taffy’s lawyer also asked that the Court review and consider custody modification due to the fact that it had become impossible for Taffy and Gary to agree on any major decisions regarding their daughter, and that sole custody was needed.

In this situation, the Court has no option but to change the custody arrangement. The Court decided that Gary’s inability to agree to a tonsillectomy for his daughter put her in medical danger, and awarded Taffy with sole custody. The Court also stated that Gary would be allowed visitation rights three weekends per month. The established time would be from 6pm Friday to 6pm Sunday, and that Gary and Taffy would meet halfway between the residences to exchange the child.

Gary appealed this decision of the Court stating that the initial hearing had only been scheduled in regards to the tonsillectomy case, and had not been a modification of custody hearing. The Appeals Court found that even though it had been discussed, Taffy’s attorney had only filed as a Response, not as a Response and Motion.

Due to this finding, the Court ruled that due process had not been followed as Gary had not been given the opportunity to be heard or call witnesses. The Appeals Court reversed and remanded the trial court’s decision.

Labels for the post: child custody, Kentucky