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Court of Appeals of Kentucky.


NO. 2011–CA–000674–ME

Decided: February 17, 2012


Emily D. Taylor appeals from an October 11, 2010, order of the Livingston Circuit Court, awarding joint custody of their minor child to Emily and her former husband, William N. Taylor.   Emily argues (1) that the trial court abused its discretion by not giving sufficient weight to a psychological evaluation that recommended giving sole custody to Emily, and (2) that the trial court's findings of fact under Kentucky Revised Statutes (KRS) 403.270 were inadequate and clearly erroneous.   Having reviewed the record, we affirm.

William and Emily were married on May 19, 2007.   In January 2009, while Emily was pregnant with their child, William attempted to commit suicide with a shotgun.   The child was born on February 21, 2009, and the parties separated shortly thereafter.

As a result of his attempt to take his life, William was left with a facial deformation causing blindness in his right eye and partial vision in his left eye rendering him unable to drive.   His speech is impaired, although he is still undergoing oral reconstructive surgery.   He suffered no brain injury from the gunshot wound and is able to dress and care for himself.   He receives Social Security disability payments, lives with his parents and works on their farm.

Emily lives with her parents and is studying to be a registered nurse.   The child has lived with Emily and her family since his birth.   After William's discharge from the hospital, Emily exercised sole custody of the child.   William has visitation which has increased from one overnight stay to two consecutive overnight stays every two weeks.

William filed a petition for dissolution of marriage on May 28, 2009.   An interlocutory decree dissolving the marriage was entered on August 2, 2010, reserving issues regarding child custody for future adjudication.

Prior to the trial court's hearing on child custody, Emily requested that William undergo a psychological evaluation.   He consented, and Dr. Sarah Shelton, a licensed clinical health psychologist, conducted evaluations of both parents.   She recommended against altering the existing custody arrangement due to concerns about William's mental health.   The trial court conducted a hearing on July 27, 2010, and entered findings of fact, conclusions of law and a final order granting joint custody with Emily designated as the primary residential parent.   Visitation was ordered in accordance with the local judicial circuit guidelines, and William's parents were required to supervise his visitations and provide transportation for the child.   This appeal followed.

When determining an award of child custody, KRS 403.270(2) directs the circuit court to give equal consideration to both parents and to award custody in accordance with the best interests of the child.   The standard of review regarding child custody issues is whether the trial court's decision was clearly erroneous and constituted an abuse of discretion.  Eviston v. Eviston, 507 S.W.2d 153 (Ky.1974).   The appellate court will only reverse a circuit court's child custody decision if the findings of fact are clearly erroneous or the decision reflects a clear abuse of the considerable discretion granted to trial courts in custody matters.  CR 52.01 and Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986).  “A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person.”  B.C. v. B.T., 182 S.W.3d 213, 219 (Ky.App.2005).

Emily argues that a modified standard of review should be employed when the testimony of an expert such as Dr. Shelton is uncontroverted.   She cites Hayes v. Hayes, 357 S.W.2d 863 (Ky.1962), for the proposition that “where there is uncontradicted evidence by a disinterested witness who knows of that which he speaks and the witness is in no way discredited and the story is not improbable, the evidence is conclusive, and the jury may not arbitrarily disregard it.”  Id. at 864 –865.   Specifically, she urges that the trial court should be required to explain in detail why the expert recommendation was not adopted or risk having its findings rejected as erroneous.

We find no such requirement in the statutory scheme for determining custody and decline to create one.   Although the trial court is free to adopt in full the recommendations of an expert witness, it is also required to consider all the evidence.   We agree with the trial court's statement that “[f]inding that sole custody is in the child's best interest just because the psychologist made that recommendation would be an abdication of this Court's role and would ignore the other statutory factors.”

Moreover, the opinion of Dr. Shelton was not uncontroverted;  other evidence, in the form of testimony from William, his parents, and his counselor, Bill McMican, supported the trial court's determination that joint custody would be in the child's best interest.   McMican, a licensed therapist and social worker who met with William for ten sessions following his release from the hospital, testified that he had no concerns regarding the state of William's mental health as it relates to his child or to parenting issues.

Although KRS 403.290 allows the court to seek expert assistance in making custody determinations, the court is by no means bound by the opinions of the experts.   Moreover, the trial court did not arbitrarily or lightly disregard Dr. Shelton's report, as Emily claims, but considered it carefully in the context of the other evidence in determining the best interests of the child.

Emily also challenges the trial court's findings made under the factors listed in KRS 403.270(2), which are intended to assist the court in determining the best interests of the child.   Her arguments are directed specifically at the adequacy of the evidence supporting the trial court's findings under subsections (a), (c), (d), and (e).   We will review them in that order.

Subsection (a) requires the court to consider “[t]he wishes of the child's parent or parents” in making a custody determination.   Emily argues that although William may profess that he wishes to be a joint custodial parent, his real wish is to take his own life and not have any role in his child's life.   She bases this statement on William's testimony at the custody hearing that he made a conscious decision to end his life and his admission that, had he been successful, his son would not have had a father.   But substantial evidence was also offered that William has genuinely changed since his attempted suicide and now wishes to be part of his son's life.   Even Dr. Shelton's report states that she supports William's desire to increase contact with his son and to increase his authority in decision making, although she recommended a more gradual change in custody arrangements because of her concerns about his mental state.

Subsection (c) requires the court to consider “[t]he 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 [.]”  Emily argues that there is no evidence to support a finding in William's favor under this subsection.   She points out that all his visitations with the child are supervised by his parents and that he is unable to do anything independently with his son.   She argues that joint custody has in effect placed parental decision-making into Williams's parents' hands, and rendered them de facto parents.   We disagree.   The fact that a parent suffers from physical disabilities and requires assistance from others when interacting with his or her child does not render that individual incapable of making the decisions necessary in a joint custody arrangement.

Similarly, under subsection (d), which requires consideration of the child's adjustment to his home, school and community, she argues that William has had sporadic visitation with the child at his parents' home, and the only home the child knows is the one provided by his mother.   The record indicates that Emily also resides with her parents.   If we accepted this argument, neither she nor William could exercise joint custody.

Finally, under subsection (e), which requires the court to assess “[t]he mental and physical health of all individuals involved[,]” she points out that William is seriously disfigured, blind and incapable of driving an automobile.   Such disabilities do not presumptively disqualify individuals from exercising joint custody over their children.   Moreover, William is able to care for himself and help his father with normal farming activities that require significant physical ability.

Of more serious import, however, are William's suicide attempt and his current mental state.   At the time of the hearing, William was not receiving outpatient mental health therapy (as recommended by Dr. Shelton) or taking any psychological medications.   The trial court acknowledged Emily's fears for her child's safety, but did not believe that William would endanger the child.   This finding is fully supported by Dr. Shelton's report, which expressly states that William is not a danger to his son.   Furthermore, there was evidence presented that William had received follow-up care with a counselor and that the psychiatrist who treated him following the suicide attempt did not find it necessary to refer him for further psychological treatment.   The trial court concluded that William “knows how to seek and obtain support should he descend to the depths of depression in the future.”   The trial court considered the history of the case and expressed concern that if Emily was awarded sole custody, she would make unilateral decisions and exclude William from parental decision-making.   The trial court's decision is supported by substantial evidence, and the award of joint custody did not constitute an abuse of discretion.

The order of the Livingston Circuit Court is affirmed.