266 S.W.3d 759 (Ky. 2008), 2006-SC-000642, Pennington v. Marcum

Docket Nº2006-SC-000642-DG.
Citation266 S.W.3d 759
Party NameChristopher M. PENNINGTON, Appellant, v. Heather M. MARCUM (f/k/a Miles), Appellee.
AttorneyRhonda M. Copley Ashland, KY, Counsel for Appellant. Martha Alice Rosenberg, Lexington, KY, Counsel for Appellee.
Case DateOctober 23, 2008
CourtUnited States State Supreme Court (Kentucky)

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266 S.W.3d 759 (Ky. 2008)

Christopher M. PENNINGTON, Appellant,


Heather M. MARCUM (f/k/a Miles), Appellee.

No. 2006-SC-000642-DG.

Supreme Court of Kentucky

October 23, 2008

As Modified Oct. 24, 2008.

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[Copyrighted Material Omitted]

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Rhonda M. Copley Ashland, KY, Counsel for Appellant.

Martha Alice Rosenberg, Lexington, KY, Counsel for Appellee.


Justice NOBLE.

The Appellant, Christopher M. Pennington, appeals the order from the Boyd Circuit Court dated October 31, 2005. The Appellant argues that the trial court abused its discretion by setting forth findings of fact contrary to the recommendation of the domestic relations commissioner without conducting an evidentiary hearing or considering the testimony presented. Additionally, the Appellant argues that the Boyd Circuit Court erred when it overruled a motion to modify custody pursuant to the best interests of the child and submits that relocation with a minor child is sufficient to trigger a modification hearing pursuant to KRS 403.340. After reviewing the record, the applicable statutes, and relevant case law, this Court finds no abuse of discretion by the trial

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court, there being substantial evidence to support the trial court's findings in favor of the Appellee, Heather M. Marcum. The Court of Appeals is affirmed for the reasons stated herein.

I. Background

On May 17, 1999, Mikayla L. Pennington was born to the Appellant, Christopher M. Pennington, and the Appellee, Heather M. Miles. The couple was never married but resided together for approximately one year after the birth of Mikayla. By Agreed Order entered February 7, 2001, which was the final custody decree, the parties received joint custody of Mikayla with the Appellee designated as having “ joint physical custody (residential parent)" and the Appellant receiving “ liberal visitation" of at least two days per week.

In 2002, the Appellee married Jeremy Marcum and moved to West Virginia. The Appellant remained in Boyd County where he married and was employed at Kings Daughters Medical Center though he continued to spend his agreed-upon time with Mikayla. Various motions were filed concerning visitation and support from time to time. However, it was not until after the Appellee and her husband subsequently relocated to Appomattox, Virginia (approximately six hours from the Appellant's home), that the Appellant filed a motion asking the court to “ award custody of the minor child" to him, on or about July 28, 2004, more than two years after entry of the custody decree. However, in his supporting affidavit he asked that he be granted “ primary custody" or in the alternative, that the court “ modify visitation" to give him extended contact “ of at least every weekend." No modification motion had been filed when Appellee initially moved to West Virginia.

On referral from Boyd Circuit Court, the domestic relations commissioner held an evidentiary hearing and recommended that the parties continue to have joint custody, but changed “ primary physical custody" to Appellant, with Appellee to have “ secondary physical custody with liberal visitation." The commissioner emphasized that the Appellant was actively involved in his daughter's life, he and his wife arranged their work schedules so that one adult would be at home with Mikayla and the couple's other children at all times, that the Appellee provided no advance notice to the Appellant of her move to Appomattox, Virginia, and that the Appellee generally did not consult with the Appellant when making decisions regarding Mikayla.

The Appellee filed exceptions to the report and the circuit judge conducted a hearing on August 22, 2005. On October 31, 2005, the court sustained the Appellee's exception to the award of primary physical custody to the Appellant. The Boyd Circuit Court specifically noted in its October 31, 2005 Order that it was “ not inclined to end a 6-year relationship with a parent merely because the parent remarries and moves to a different location." Additionally, the Boyd Circuit Court found Mikayla to be well-adjusted in her new environment, including school, and involved with several extracurricular activities. Most importantly, the court ruled “ that it would be in the best interest of the minor child for the parties to continue to have joint custody, but for the Respondent [mother] to have primary physical custody and the Petitioner [father] to have secondary custody with liberal visitation as the parties have been exercising."

This appeal followed. The Court of Appeals found there was substantial evidence to support the Boyd Circuit Court's finding in favor of the Appellee and affirmed the custody order. We now affirm, but for the reasons stated herein. Further, because

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questions regarding relocation and its effect on custody continue to be problematic, the Court will address the nature of child custody, the effects of relocations, and when and how motions relating to relocation after a custody award should be brought, in an effort to establish clear precedent.

II. Analysis

A. General Discussion

At the heart of all relationships between parents and children is the legal concept of custody. Custody of children is traditionally described as the care, control and maintenance of the children, Black's Law Dictionary 725 (8th ed.2004), with natural parents having the superior right to custody above all others, if they are fit for the charge and have not given up the right. Welsh v. Young, 240 S.W.2d 584, 586 (Ky.1951). Historically, the guardian by nature of the child was the father, and on his death, the mother. For children born out-of-wedlock, the guardian was the mother. Black's Law Dictionary 725 (8th ed.2004). Today, both parents are recognized as having the right to custody, KRS 403.270; putative fathers may seek and obtain custody, KRS 405.051; and de facto custodians have the same right to seek custody as the father and mother, KRS 403.270. While there are a larger number of children born out-of-wedlock today than ever before, the majority of children are still born to a married couple, consisting of a mother and a father, with custody questions arising in relation to a divorce.1

As a consequence of the fault-based divorce scheme, sole custody was the rule for most of the 20th century. As a marital couple, both parents enjoyed full parenting rights and responsibilities; however, the dissolution of the marital bond not only altered the relationship of the parties but also altered the relationship between the parties and any children they might share. The “ innocent" spouse who obtained divorce on appropriate grounds (adultery, insanity, indignities, imprisonment, bigamy, cruel treatment, or desertion) was generally deemed the fit parent. The sole custodian possessed full control and singular decision-making responsibility for his or her children to the exclusion of the other parent who received a limited period of access to the children through visitation, a term which denoted the right to see the children, but not to control them legally. During this time, custodial preference under the law evolved from father first, then to the mother first under the tender years presumption, and finally to equal consideration of both parents seeking sole custody. See generally Mary Kate Kearney, The New Paradigm in Custody Law: Looking at the Parents with a Loving Eye, 28 Ariz. State L.J. 543, 546-50 (1996).

In 1972, the Kentucky General Assembly enacted KRS 403.110 et seq. following a national trend to permit no-fault divorces. With the passage of the no-fault divorce statutes, the Commonwealth's role changed from restricting access to divorce to permitting either spouse to unilaterally sever the marital bond. Still, the goal of the Commonwealth remained unchanged-to preserve family relationships. An explicitly stated purpose of the chapter is to promote the integrity of marriage and safeguard family relationships. KRS 403.110(1). At its inception, the no-fault

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divorce scheme showcased the state's emerging role as maintaining the indissolubility of parenthood after the dissolution of the marital relationship by permitting joint custody of the couple's children.

During the 1970s and 1980s, American society was making rapid changes. Women of child-bearing and -rearing age were increasingly joining the civilian labor force, so that by 1980, over half of that group were working outside the home.2 In part because the “ stay-at-home Mom" was an increasingly less conventional parenting role, fathers began taking more active roles in the day-to-day lives of their children. Consequently, at the dissolution of the marriage both parties began seeking a custody arrangement that allowed them to pursue livelihoods to maintain households and provide for their families, but also permitted them to function as available, responsible decision-makers for their children.

In 1992, the Kentucky Court of Appeals decided Chalupa v. Chalupa, 830 S.W.2d 391 (Ky.App.1992), which included an open endorsement of joint custody over sole custody. The Court of Appeals concluded that it was in the best interests of children for both their parents to be regularly involved in their lives. The court recognized the dynamic nature of family law and stated:

Joint custody is also a natural progression of our no fault divorce concept, recognizing that both parties may be fit parents but not compatible to be married to each other. A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing.

Id. at 393 (citation omitted). Though the Kentucky Supreme Court declined to adopt the Chalupa preference for joint custody over sole custody in Squires v. Squires, ...

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