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Court of Appeals of Kentucky.


NO. 2009-CA-001864-ME

Decided: July 16, 2010

BEFORE:  CLAYTON AND KELLER, JUDGES;  BUCKINGHAM, Double SENIOR JUDGE.Double BRIEF FOR APPELLANT:  Bryan Underwood Maysville, Kentucky BRIEF FOR APPELLEE:  Kimberly C. Morton Maysville, Kentucky

This is an appeal of a custody determination entered by the Lewis Circuit Court, Family Court Division.   Based upon the following, we vacate the decision of the trial court granting full custody to the appellee, Sharon Kay Corns, and remand their actions for further proceedings consistent with this opinion.


Sharon and Jerry Dennis Corns, the appellant, are the parents of an adult disabled child, Tonya.   During their divorce proceedings, both Sharon and Jerry requested custody of Tonya.   Both parents have provided care for Tonya.   During the hearing regarding custody, Sharon made allegations of sexual abuse of Tonya by Jerry.   While Sharon contended that she did not actually witness the alleged abuse, she stated that she had come into both Tonya's room and the bathroom and witnessed events which she believed indicated Jerry had abused their daughter.

Jerry has denied that he abused Tonya in any way.   After a hearing, the trial court judge found the following:

The Petitioner [Sharon] wants full custody and no visitation rights to be granted to the Respondent [Jerry].   She relates that she believes the Respondent has sexually abused the parties' child.   She states she saw him standing over the child with the child's underwear pulled down.   She further relates she has seen what she considers to be sperm being wiped from her daughter.   Mrs. Corns is adamant about her belief that the Respondent has sexually abused their disabled, adult child and that he should not be allowed anywhere around her.

Mr. Corns is age 58 and denies any sexual abuse of the child and wants some sort of joint custody or visitation with the child.

The trial court judge ordered that:  “The Petitioner shall have sole custody of the adult, disabled child, Tonya Corns.   The Court finds it would be in the best interest of Tonya to allow no visitation by the Respondent based upon the allegations that have been made.”

Jerry now appeals this decision.


Kentucky Rules of Civil Procedure (CR) 52.01 provides that “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.”   A judgment is not “clearly erroneous” if it is “supported by substantial evidence.”  Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).   Substantial evidence is “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.”  Id. Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.1972).

If the trial court's decision regarding visitation is clearly erroneous based upon the facts of the case, the appellate court must reverse the decision.   “[T]his Court will only reverse a trial court's determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case.”  Drury v. Drury, 32 S.W.3d 521, 525 (Ky.App.2000).   Abuse of discretion will not be found unless the trial court's decision was arbitrary, unreasonable, unfair or not supported by sound legal principles.  Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky.2004).


In Kentucky, the determination of how custody is divided between a child's parents depends upon the best interests of the child.  KRS 403.270 provides, in relevant part, that:

(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian.   The court shall consider all relevant factors including:

(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;

(b) The wishes of the child as to his custodian;

(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;

(d) The child's adjustment to his home, school, and community;

(e) The mental and physical health of all individuals involved;

(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;

(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian․

In the present action, the trial court judge, in the absence of substantial evidence, held that it was in the best interests of Tonya to be in the sole custody of her mother and that her father should have no visitation.   He found that the accusations of abuse by Sharon were sufficient to remove all contact with Jerry.   We disagree with this decision.

While the accusations of sexual abuse are certainly to be taken into consideration, we believe there must be a finding that the abuse occurred before all visitations are taken away from Jerry.   The trial court did not appoint a guardian ad litem for Tonya, nor did it hear evidence from medical experts regarding whether there was physical or psychological evidence indicating sexual abuse had occurred.   There is no evidence to support the accusations from Sharon and no actual finding of sexual abuse by Jerry.   The findings of the trial judge regarding custody and visitation are, therefore, not supported by substantial evidence.

Based upon the foregoing, we vacate the decision of the Lewis Circuit Court and remand this action for additional findings and a ruling based upon those findings.