Opinion
NO. 2013-CA-001513-ME
05-09-2014
CHRISTOPHER GENTILE APPELLANT v. MARSHA HARDIN AND KERMIT RAY HARDIN APPELLEES
BRIEF FOR APPELLANT: William T. Hutchins Bardstown, Kentucky BRIEF FOR APPELLEES: Michael E. Coen Bardstown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM NELSON CIRCUIT COURT
HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NO. 09-CI-00247
OPINION
AFFIRMING
BEFORE: JONES, LAMBERT, AND STUMBO, JUDGES. LAMBERT, JUDGE: Christopher Gentile has appealed from the order of the Nelson Circuit Court granting grandparent visitation with his minor child, Reece Gentile, to her maternal grandfather, Kermit Ray Hardin. Because we hold that the circuit court did not err in determining that grandparent visitation was in Reece's best interest, we affirm the order on appeal.
This proceeding began in 2009 with the filing of a Petition for Custody by Christopher against Marsha Hardin, Reece's natural mother. He was seeking temporary and permanent custody of their daughter, Reece, who was born on September 23, 2002. Christopher indicated that Reece had lived with his mother, Mary Gentile, in Cox's Creek, Kentucky, from the time of her birth until the present. Pursuant to a temporary order entered later that month, the circuit court granted Christopher visitation with Reece. Marsha filed an answer in which she indicated that Reece had lived with her from the date of her birth until August 2007; with Mary, with her permission, for four months beginning in September 2007; and with her (Marsha) from January 2008 until the present. The parties were ordered to mediate the unresolved issues of custody and visitation. By a handwritten agreed order entered August 12, 2009, the parties were to share temporary joint custody of Reece, with Christopher having parental time pursuant to the local rules as well as every Tuesday night. Exchanges were to take place at Handy Food Mart, and the matter was to be reviewed in two months.
In December 2009, Christopher filed a motion for a show cause rule, stating that Marsha should be held in contempt for her failure to meet him at the Handy Food Mart for an exchange. He included an affidavit in which he stated that Marsha had relocated to Indiana and had refused to meet him at Handy Food Mart. Christopher stated that it was in Reece's best interest to reside primarily with him in Nelson County. In response, Marsha stated that she and Christopher had reached an agreement in October. An e-mail thread established that Marsha's lease had ended and that her parents, who lived in Clarksville, Indiana, told her that they would help with her bills if she moved in with them. Another message indicated that Marsha had made arrangements with Christopher to meet halfway between their two residences to make visitation exchanges. While Christopher agreed to this, he failed to show up, and Marsha could not get in touch with him. A hearing was held on February 25, 2010, but the recording of the hearing was not included in the appellate record.
By order entered March 3, 2010, the court entered its findings of fact, conclusions of law, and judgment denying Christopher's motion to be designated as Reece's primary caretaker but granting his motion to hold Marsha in contempt. The parties were to continue to share temporary joint custody with Marsha designated as the temporary primary caretaker and Christopher having visitation in accordance with the local rules. At that time, Christopher, age 27, was living in Bardstown, Kentucky, with his girlfriend, Pam Braden, and he worked in the transportation industry. Marsha, age 25, lived in Clarksville, Indiana, with her three children and was enrolled at Ivy Tech to become a registered nurse. The court expressed concern about the lack of a relationship between Christopher and Reece, noting that Christopher was unaware of the name of the school Reece attended, the identity of her teacher, or the identities of her previous teachers. Furthermore, Christopher had been married two times and had worked in Illinois, Alabama, and Ohio since Reece's birth. He had also lived in Hopkinsville, Kentucky, for two years. The court did note that Christopher had taken a more active role with Reece the previous summer when he volunteered to coach her softball team. Christopher's girlfriend, Pam, had lived with him for about a year and testified to issues with Marsha's parenting, including that Reece's clothing and shoes were often too small; her teeth were dirty; she did not smell good at times; and she brought up Marsha's failure to make Reece wear a seatbelt at times. The court was impressed with Mary's involvement with her granddaughter, noting that Mary had volunteered to care for Reece on a daily basis for about five months starting in August 2007 when Marsha "became overwhelmed with her parenting responsibilities[.]"
The court noted that when she was at Marsha's residence, Reece would have substantial contact with her mother, her two half-siblings, her maternal grandfather, and her step-grandmother, Michelle Hardin. Kermit and Michelle lived in Clarksville, Indiana, across the street from Marsha's residence. The court went on to state that Marsha had a more substantial relationship with Reece than Christopher did, but recognized that she had repeatedly made poor decisions that were not in Reece's best interest, including dating a man with a history of drug and/or alcohol abuse, leaving Reece with numerous individuals including an alcoholic, becoming so overwhelmed in August 2007 that she was unable to care for her children, and being unable to deliver Reece to school on time during the past school year. Marsha had two other children, a five-year-old and a nine-month-old, who were Reece's half-siblings, and the court preferred to keep the children together. The court also stated that it was extremely impressed with Reece's step-grandmother, Michelle, who was a nurse. She had cared for one of Marsha's other children when she became overwhelmed. The court believed that Marsha needed family assistance situated close to her because of the demands of raising three young children.
After considering all of the factors, the court stated that the custody litigation had been beneficial to Reece because it had forced Marsha and Christopher to become better parents, but noted that both parents had much room for improvement. Therefore, the court decided to maintain the status quo of temporary custody in the hopes that the parties would continue to improve. If Marsha failed to meet the expectations that she make Reece her top priority, maintain her present housing, timely transport Reece to school, monitor her progress in school, and make progress toward her nursing degree, Christopher would have the option to petition the court for permanent custody.
Two and one-half years later, on September 28, 2012, Christopher filed a motion requesting that the court enter a temporary emergency custody order. In an attached affidavit, Christopher stated that he found out that Marsha had abandoned her three children by leaving them with Kermit and Michelle earlier that month. Michelle told him that Marsha intended to terminate her parental rights to her children due to a mental breakdown. Christopher feared for Reece's safety because Kermit and Michelle were also caring for Marsha's seven-year-old son, who had acted out sexually and had abused Marsha's youngest child. The youngest child had been removed from the home and was living with her paternal grandmother. The court entered the emergency order granting Christopher temporary custody of Reece the day the motion was filed.
On October 19, 2012, Christopher moved for sole custody of Reece and to amend Reece's birth certificate to reflect her full name and that he was her father. The court granted the motion to amend the birth certificate by order entered December 19, 2012. Christopher later filed a motion to terminate his child support obligation retroactive to September 28, 2012, the date he claimed to have been granted sole custody.
On January 29, 2013, Kermit filed a motion to intervene in order to file a petition for grandparent visitation. The court granted the motion to intervene, and the petition was filed on February 6, 2013. In the petition, Kermit stated that he had enjoyed substantial visitation with Reece since the time of her birth and that he had provided substantial care and support for her, but that Christopher was denying him visitation. Kermit stated that it was in Reece's best interest to have grandparent visitation with him due to their stable relationship, because he and his wife had spent substantial time with and had provided substantial child care for Reece, and because visitation would not be detrimental to Reece or to the relationship between Reece and her parents. Kermit included an affidavit in support of his petition in which he stated that the Indiana Department of Child Services came to their home in Indiana only one time, which was when he and Michelle called them; that Marsha's youngest child had never been removed; and that Marsha's middle child posed no danger to Reece because of his age, size, and supervision by them.
Marsha filed a notice that she did not intend to defend against Kermit's petition and also filed an affidavit in which she stated that Kermit and Michelle had provided substantial financial support and shelter for her and her children. Her children had visited with Kermit and Michelle on a regular basis when they lived across the street from November 2009 through May 2012. Marsha stated that Reece had a stable relationship with Kermit and Michelle and that she saw no detriment to regular and substantial visitation between them. Christopher filed an answer to the petition in which he stated that grandparent visitation was not in Reece's best interest. After an unsuccessful mediation on the outstanding issues of custody, visitation, and child support, the matter was set for a final hearing.
The record does not reflect that the circuit court has ruled on Christopher's motion for sole custody or his motion to terminate child support.
The final hearing took place on July 24, 2013. Jennifer Bivens Haynes was the first witness to testify. She is a social worker with the Cabinet for Health and Family Services in Breckinridge County. She conducted an investigation in December 2012 after a referral for neglect by Kermit and Michelle related to a sexual abuse allegation against Marsha's younger daughter by Marsha's son. The neglect was not substantiated. Ms. Haynes did not have any concerns for the younger daughter regarding future abuse by Marsha's son because of his referral to a support system for sexual abuse as well as the institution of separate bedrooms and bathroom times for the children. Kermit and Michelle were doing everything they knew to do to prevent further abuse and readily accepted services when provided. Ms. Haynes also reported that Kermit and Michelle had filed DNA petitions in Breckinridge County and had obtained temporary custody of Marsha's younger children, which she supported.
On cross-examination, Ms. Haynes confirmed that Marsha's son still lived in the home and that Marsha had lived with the family for about two weeks until Kermit and Michelle asked her to leave for the benefit of the children. Marsha apparently had some outstanding felony charges for drug-related offenses. She was not aware of Michelle's son, Cameron Yates, who had been in prison. She was not aware that Kermit had filed an EPO against Michelle in the past. If it had been found to be true, that would have been concerning to her. She had never met Reece and did not know how she interacted with her two half-siblings. She knew Marsha's former boyfriend, Mack St. Clair, from court proceedings related to Kermit and Michelle's DNA petitions. He was the father of Marsha's younger daughter. Ms. Haynes confirmed that Marsha's three children had three different fathers.
Michelle testified next. She is a registered nurse and had been married to Kermit for seventeen years. They had lived in Irvington, Kentucky, since 2012 and had lived in Clarksville, Indiana, for the previous seventeen or eighteen years. Marsha's younger children lived in the house with her and Kermit, but Marsha no longer lived there. All three children had separate bedrooms in the house, although Reece had not been in the house in Irvington since they had purchased it. She agreed that Marsha had experienced some difficulties in her past, in particular with Mack. In 2009, Michelle picked up the children and brought them to her and Kermit's house in Indiana where they stayed for a couple of months. She and Kermit purchased the house across the street for Marsha where she could live with the children and be close to them. Michelle had regular, daily contact with the three children, and she cooked for them every day at her home. She and Kermit purchased the children's school supplies and clothes because Marsha did not have regular employment. In May 2012, Marsha moved out of the house to a new residence three blocks away, but Michelle and Kermit continued to have regular contact with Marsha and the children. The children came over frequently to swim in the pool during the summer. She helped the children with homework and took them to school festivals and activities.
On September 19, 2012, Marsha dropped the children off at Kermit and Michelle's house. Michelle later found out that Marsha had written her mother a letter to say that she could no longer take care of the children and that she had given them to Kermit and Michelle. She and Kermit contacted the police, CPS was notified, and Michelle called Christopher. At the end of the month, Christopher's mother and his wife picked up Reece from their house, and Christopher told Michelle at the end of the weekend that he was keeping Reece. Christopher told her Reece had asked when she was going to see Kermit and Michelle. Michelle had spoken with Reece on the phone two times since she left their home. She and Kermit planned to seek custody of Marsha's younger children, and Michelle stated that she would not let Marsha take the children back because of her inability to be a mother to them. Michelle stated that she had a stable and good relationship with Reece. Reece was very intelligent, but she was not very athletic. Michelle had been involved with Reece for her whole life and believed it would be detrimental for her to be cut off from that side of the family.
Michelle testified about the sexual abuse allegation, which she learned about in July 2012, and stated that she had acted as an advocate for Marsha's son when sodomy charges were filed against Marsha's former boyfriend. She stated that nothing had happened in their house and detailed the steps she had taken to prevent future occurrences. Michelle stated that if Reece were permitted to stay in their household, she would be with her at all times, and she did not believe Reece's half-brother would pose a threat to her because Reece was much bigger and could defend herself. Michelle did not have any mental or physical problems that would prevent her from caring for Reece, and she did not express any animosity against Christopher. She did not know where Marsha was at that time, but she was aware that she had a drug addiction problem and had been charged with manufacturing methamphetamine in December 2012. Michelle also testified about Cameron, her twenty-four-year-old son, who had been released after serving a prison sentence for armed robbery. He lived in New Albany and was not permitted to return to her home. She stated that Kermit had been arrested several times for DUI and for an altercation at the house with her daughter, Danielle, and Marsha when he chased them around the yard. He had been drinking that day. Kermit filed for divorce in 2010, but they later reconciled. He had also obtained a restraining order to prevent her from taking items from the house.
Kermit was the next witness to testify. He was 51 years old and worked as tow boat pilot. He detailed his arrest for intimidation - he had been attempting to take the car keys away from Danielle and Marsha to prevent them from going out - as well as his prior DUI arrests. Kermit did not report any violence in his marriage to Michelle and stated that he obtained the restraining order to prevent her from taking any additional furnishings from the house. Regarding Marsha and her children, Kermit confirmed that he and Michelle purchased a house for them to live in because Marsha had no money to support the family. He would not allow Cameron to live in the home, but noted that he had paid his debt, was a different person since he had been released from prison, and took care of himself. He learned about the issues with Marsha's son (that he had been abused and then abused his half-sister) when the court notices arrived. Kermit stepped up as a father figure for him and the other grandchildren. He did not believe Reece would be in any danger from her half-brother, stating that she was twice his size. Marsha would not be allowed in the house or to see the children until she went to church, found help, and got into a drug program. He believed she had mental issues. Kermit did not see any detriment to visitation and said he did not have any problems with Christopher. He thought Christopher did not want them to see Reece because he had a grudge against Marsha. It had been hard not seeing Reece, as they had raised her for ten years.
On cross-examination, Kermit denied being treated for any emotional problems and denied having any physical disabilities. He denied that he still drank alcohol. He last had any alcohol when he was arrested for intimidation. His tow boat pilot's license had never been suspended for an alcohol offense. Regarding his interaction with the children, Kermit stated that he did not do the wash or help with homework, but he sometimes cooked dinner. He stated that Michelle took care of medical and dental appointments.
Christopher testified on his own behalf. He lives in Bloomfield, Kentucky, where he owns a trucking company. He was in a relationship with Marsha for a total of three years. They lived with Marsha's mother, and Marsha and Reece continued to stay with her after the breakup until Reece was six or seven years old. Marsha had not wanted Reece to see Kermit due to his anger issues. Christopher had never lived with Kermit and Michelle, or in the house across the street from them. Reece had lived with him since October 2012, and she had lived with him previously for six to eight months while Marsha tried to get her life together. He first learned about Marsha's letter that she no longer wanted the children four days after the incident. Christopher did not trust Kermit or Michelle and stated there was always drama with them. They made up allegations to prevent the fathers of Marsha's children from obtaining custody of their respective child, and he thought that the molestation allegation was part of that. He also expressed concerns about Kermit's alcohol and anger problems, which Marsha had reported to him in the past. Kermit had threatened to kill him after he found out that Christopher had gotten Marsha pregnant. Marsha has also told Christopher that Michelle had problems with Oxycontin.
Christopher testified that Kermit and Michelle had not sent any cards or letters, presents, clothes, or money to Reece since she had returned to his custody. When Christopher regained custody, Reece was failing academically. Christopher enrolled her in Bloomfield Elementary, sat down with her teachers, and had her tested. He and his wife worked with her as much as they could, including helping her with her homework, and her academic performance improved. He had also placed Reece in counseling due to her behavior, such as lying. He was concerned that Reece's seeing Kermit and Michelle again would put her in the same position as before, having no drive or motivation and thinking it was acceptable to lie. He was also concerned about sexual abuse and that Marsha would be present. Christopher stated that Reece had progressed with them and had friends she played with. She would never have been able to do this before and instead would have been afraid to come out of her shell. Christopher did not think visitation with Kermit was a good idea at that point and would be harmful to Reece. On cross-examination, Christopher stated that he did not have any personal knowledge of the sexual abuse.
Pam Gentile testified next. She and Christopher had been married for three years and had known each other for thirteen years. When Christopher got custody of Reece in October, Reece was emotionally torn up and needed help. They took her to a counselor, and she was happy and doing much better. Pam had concerns related to Reece's hygiene. Reece did not know how to wash her hair, and they had to teach her to wash her body parts, how to brush her teeth correctly, and that she needed to change her underwear. Pam stated that she had a great relationship with Reece. She did not believe Reece would be safe at Kermit and Michelle's house because of Marsha, Cameron, and the possibility of sexual abuse.
Mary, Reece's paternal grandmother, was the next witness to testify. She spent time with Reece when Christopher and Marsha were together; they would leave Reece with her for a few hours in the evening. Reece moved in with Mary in August the year she started kindergarten, and she remained with her until February when Marsha came back to get her. Mary did not know how involved Kermit and Michelle were with Reece. When Christopher got custody of Reece, she was not doing well in school, but she had improved and was no longer shy. Mary described her as reserved and confused before. Mary reported that she saw Reece every day, and she watched her if necessary. Mary put her on the bus in the morning and would get her off of the bus after school if Christopher and Pam were not yet home. Mary thought that Michelle had lied to her, and she did not believe Reece would be safe at Kermit and Michelle's house. Her concerns were drugs and the lack of stability in Kermit and Michelle's relationship.
The court then questioned Reece. She was ten years old at the time of the hearing. She would be entering the 6th grade at Bloomfield Elementary. She said living with her father was going well. She described him as funny, smart, and loveable. She also described her relationship with Pam as good. Her six-year-old half-brother, Christopher, came to live with them every other weekend. They played together and got along well. She had not seen her mother for a year and stated that she missed her. She last saw her on the way to school one morning. At that time, she was living with her mother, her mother's boyfriend, Steve, her half-brother, her half-sister, and sometimes a guitar teacher by the name of Drew. She shared a bedroom with her half-sister. She is a year older than her half-brother and said that she missed him. She said they sometimes fought over the television and what they were going to play. Her relationship with her half-sister was also good. They would play with toys after school. She said she missed her as well.
Reece called Kermit "Papaw," and she called Michelle "Mammy." Before they moved in with Steve, they lived across the street from them. They would go over to swim in the pool and play video games. She was closer to Kermit. She liked that he played jokes on them and would make big splashes in the pool. Kermit bought an X-Box and Netflix for them to use. She described their relationship as good and stated that she missed seeing him. Regarding Michelle, she would show them how to swim and was a good cook. Michelle would also help her wash her hair. There was nothing she did not like about Kermit or Michelle, but she said her half-brother used to bother her by tapping her on the shoulder. She would also have to clean up her half-sister's toys. Reece said she would like to visit with all of them. She also wanted to see her mother. She enjoyed going to counseling and had been there a few times. She attended 4H camp that summer and said it was a fun experience. Reece said she used to play softball and that her dad was the coach. She also liked to play soccer and would be attending a soccer camp. She did not have any problems making friends at her new school, and she was making As and Bs. She had not been doing well at school in Clarksville because she was not paying attention and sometimes did not do her homework. She was not getting any help with her homework because her mother did not pay attention to that.
After the hearing, the court entered its findings of fact, conclusions of law, and judgment on July 30, 2013, in which it granted grandparent visitation one weekend per month. After considering all of the relevant factors, the court found that Kermit had:
established by clear and convincing evidence that grandparent visitation is in Reece's best interests. As grounds, [Kermit] and Reece's half-siblings have played a substantial role in Reece's life, and it is simply unfair and potentially harmful to completely remove these individuals from this child's life. In addition, this Court sincerely believes that Reece desperately wants and needs to have contact with her mother's side of the family.The court recognized, however, that Christopher had expressed some legitimate concerns, and it therefore placed several restrictions on Kermit's monthly visitation, including that Kermit was not to permit Marsha to have unsupervised contact with Reece; that his stepson, Cameron, was not to have any contact with Reece; that Kermit was to ensure that Reece had a separate bedroom and separate bathroom times from her half-brother; and that Kermit would not become intoxicated during visitations.
Christopher filed a motion to alter, amend, or vacate the order, requesting that the decision be placed in abeyance pending an appeal of the ruling. Kermit, by separate motion, requested that Michelle be permitted to pick up Reece for visitation if necessary. By order entered August 21, 2013, the court denied Christopher's motion and granted Kermit's motion. This appeal by Christopher now follows.
On appeal, Christopher contends that the circuit court was clearly erroneous in granting grandparent visitation over his objection and in applying the factors of the modified best interest standard. Kermit, on the other hand, contends that the circuit court's judgment was not clearly erroneous based upon the testimony and the record.
An appellate court may set aside a lower court's findings made pursuant to Kentucky Rules of Civil Procedure (CR) 52.01 "only if those findings are clearly erroneous." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted). In order to determine whether findings of fact are clearly erroneous, the reviewing court must decide whether the findings are supported by substantial evidence:
"[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached aId. at 354 (footnotes omitted).
contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.
In KRS 405.021(1), the General Assembly set forth the statutory authority for grandparent visitation in Kentucky:
The Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so. Once a grandparent has been granted visitation rights under this subsection, those rights shall not be adversely affected by the termination of parental rights belonging to the grandparent's son or daughter, who is the father or mother of the child visited by the grandparent, unless the Circuit Court determines that it is in the best interest of the child to do so.In Walker v. Blair, 382 S.W.3d 862, 867 (Ky. 2012), the Supreme Court of Kentucky confirmed that "the interpretation of KRS 405.021(1) in accordance with federal constitutional law and the application of the appropriate standard to the facts are issues of law that we review de novo." (Footnote omitted.)
In Walker, the Supreme Court described the application of KRS 405.021(1):
When ruling on a grandparent visitation petition under KRS 405.021(1), the trial court must presume that the parent is acting in the child's best interest. The grandparent petitioning for visitation may rebut thisWalker, 382 S.W.3d at 874-75. Through this holding, the Walker Court approved the modified best interest standard and factors to consider that were set forth by this Court in Vibbert v. Vibbert, 144 S.W.3d 292, 294-95 (Ky. App. 2004):
presumption with clear and convincing evidence that visitation with the grandparent is in the child's best interest. And the trial court may consider several factors, which we have denominated the modified best interest standard, to determine whether visitation is clearly in the child's best interest.
The Court emphasized that the focus of these factors is not whether the parent is fit to make a decision regarding third-party visitation. A grandparent seeking visitation over the objections of the parent is not required to show that the parent is unfit, but must present clear and convincing evidence that the parent is mistaken in the belief that visitation would not be in the best interests of the child.Fairhurst v. Moon, 416 S.W.3d 788, 792 (Ky. App. 2013) (internal citation omitted). The Walker Court described the relevant factors as follows:
A trial court can look at several factors to determine whether visitation is clearly in the child's best interest. The Vibbert court laid out many of these factors, including:Walker, 382 S.W.3d at 871. "[T]hrough the Vibbert factors, which inherently address parental fitness, a grandparent can show that the parent is mistaken in the belief that visitation is not in the child's best interest." Id. at 871-72. However, the Court cautioned that "a trial court may not override parents' constitutional liberty interest in rearing their child simply because the judge believes that a better decision could be made." Id. at 873.
1) the nature and stability of the relationship between the child and the grandparent seeking visitation;
2) the amount of time the grandparent and child spent together;
3) the potential detriments and benefits to the child from granting visitation;
4) the effect granting visitation would have on the child's relationship with the parents;
5) the physical and emotional health of all the adults involved, parents and grandparents alike;To this list, we add:
6) the stability of the child's living and schooling arrangements; and
7) the wishes and preferences of the child.
8) the motivation of the adults participating in the grandparent visitation proceedings.The motivation of the parent in prohibiting visitation and the motivation of the grandparent in pursuing visitation are factors that can be used to determine the child's best interest.
Turning to the present case, the circuit court thoroughly considered the Vibbert and Walker factors in determining that grandparent visitation was in Reece's best interest, and our review of the record confirms that the findings are supported by clear and convincing evidence of record. Furthermore, the application of these factors support the circuit court's ultimate ruling that Christopher was mistaken in his belief that grandparent visitation would not be in Reece's best interests.
Specifically, the first and second factors require a consideration of the nature and stability of the relationship between Reece and Kermit and the amount of time they spent together. The record establishes that Reece and Kermit remained in contact throughout her life, until she returned to Christopher's custody in 2012, and that Reece had lived in Kermit's household, in a house across the street, or a few blocks away for a large portion of her life. Reece described her relationship with her grandfather as "good" and stated that she missed seeing him. She described how Kermit would play jokes and splash in the pool with her and her siblings. These findings support the circuit court's award of visitation.
The court spent much time considering the third factor, the potential detriments and benefits Reece would receive from visitation with her grandfather. The court considered Christopher's concerns that Reece would be a potential victim of abuse at the hands of her younger half-brother; that she would have contact with Marsha or Michelle's son, Cameron; that Reece would begin lying again; and that Kermit and Michelle's relationship was unstable because he filed for divorce in 2010. However, the court noted that neglect allegations against Kermit and Michelle were unsubstantiated and appropriate steps had been taken to protect Reece's half-sister. The court also considered the benefits Reece would derive from visitation, including the ability to reestablish relationships with her grandfather and with her half-brother and half-sister, who continued to live with Kermit and Michelle. Finally, the court was able to address Christopher's concerns listed above by imposing several restrictions for the visitation periods, all of which support the award of visitation. We note that Christopher raised concerns in his brief related to Kermit's drinking and anger issues, which the court chose to address in a separate factor.
For the fourth factor, the court considered the effect granting grandparent visitation would have on Reece's relationship with her father. While noting that this factor was difficult to determine, the court nevertheless pointed to Reece's favorable testimony about her father and questioned how Kermit or Michelle could turn her against Christopher. In his brief, Christopher points to the tension and frustration he would feel as a result of visitation because of his need to question Reece when she returned from visitations with her grandfather. Kermit suggests that this could be addressed with a counselor. Again, the findings related to this factor favor the award of visitation.
With the fifth factor, the circuit court considered the emotional health of all of the adults involved, including Kermit, Michelle, Marsha, Christopher, and Pam. The record does not contain any allegations that Christopher and his wife have any physical or emotional problems. Marsha certainly has a problem with illegal drugs, and Kermit testified as to his belief that she has mental health issues and needs treatment. The record does reflect, and the court considered, Kermit's admitted alcohol and anger issues, but the record also reflects Kermit's testimony that he stopped drinking alcohol after he had been arrested for intimidation. Furthermore, we agree with the circuit court's determination that there was no evidence to support Christopher's assertion that Michelle was addicted to Oxycontin. Finally, we note that the circuit court addressed any issues that might arise with regard to Marsha or to Kermit's future alcohol use in the restrictions imposed in the order. As with the previous factors, no evidence supports Christopher's belief that visitation would not be in Reece's best interest.
The sixth factor the circuit court considered was the stability of Reece's living and schooling arrangements. The court noted, and we agree, that Reece's life has become much more stable since Marsha abandoned her and her half-siblings and that her school performance has improved dramatically. We cannot agree with Christopher's assertion that visitation with her grandfather one weekend per month would disrupt the progress she has made, especially with the restrictions put in place in the order.
The seventh factor requires the circuit court to consider Reece's preferences, and she certainly expressed a desire to see her grandfather again as well as her half-siblings. Christopher agrees in his brief that this factor leans in favor of grandparent visitation, but posited that the circuit court placed too much weight on this factor.
The eighth and final factor requires the circuit court to consider the motivation of the adults participating in the visitation proceedings, including Christopher's motivation in prohibiting visitation and Kermit's motivation in seeking visitation. The court believed that the animosity between Christopher and Marsha had spilled over into this proceeding, established by Christopher's lack of trust of either Kermit or Michelle and his belief that they caused "drama" and "played games." On the other hand, the court believed Kermit sought visitation to permit Reece to reestablish her relationship with her mother's side of the family, despite his failure to send cards or gifts to Reece after Christopher regained custody. In his brief, Christopher states that the circuit court failed to consider that he simply did not believe Reece would be safe with Kermit and that he was seeking visitation so that Marsha could see her when she could not get visitation herself. Kermit points out that the circuit court's findings are in keeping with his history of care and support for Reece and her half-siblings. Again, we do not believe that the findings above support Christopher's objection to visitation.
Considering the combination of the factors addressed by the circuit court, we must hold that the court's findings are supported by clear and convincing evidence in the record and that its decision to award grandparent visitation is in Reece's best interest. While Kermit's past history of alcohol and anger issues, Michelle's son's and Marsha's criminal histories, and the sexual abuse allegations certainly give this Court, and gave the circuit court, pause, we agree that these potential issues have been adequately addressed in the restrictions imposed in the order. That restrictions had to be imposed does not mean that visitation is not in Reece's best interest or that Christopher was correct in arguing that it was not. Rather, this represented the court's desire to address Christopher's concerns and ensure that Christopher would know that Reece would be safe from any harm during her visitations. Therefore, we hold that the circuit court did not commit any error in awarding grandparent visitation.
For the foregoing reasons, the order of the Nelson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: William T. Hutchins
Bardstown, Kentucky
BRIEF FOR APPELLEES: Michael E. Coen
Bardstown, Kentucky