Fulkerson v. Calvert, 2018-CA-001425-ME
| Decision Date | 21 June 2019 |
| Docket Number | NO. 2018-CA-001425-ME,2018-CA-001425-ME |
| Parties | CAROLINE ANN FULKERSON APPELLANT v. JUSTIN BLAKE CALVERT APPELLEE |
| Court | Court of Appeals of Kentucky |
NOT TO BE PUBLISHED
APPEAL FROM GRAYSON CIRCUIT COURT
The Appellant, Caroline Ann Fulkerson ("Mother"), appeals an order of the Grayson Circuit Court, which adopted the report and recommendations of the Domestic Relations Commissioner ("DRC") with respect to custody and timesharing issues concerning the parties' minor child. Following review of the record and applicable law, we affirm in part, vacate in part, and remand with instructions.
Mother and Justin Blake Calvert ("Father") have one child together, A.E.C. ("Child"), who was born in August of 2017. Mother and Father have never been married, but were in a romantic relationship at the time of Child's birth. That relationship ended in early December of 2017. The separation was not amicable. On December 22, 2017, Mother filed a petition for child custody. In her petition, Mother requested that she and Father have joint custody of Child and that she be Child's primary residential parent. Mother requested that Father have parenting time with Child pursuant to the local guidelines, with the exception that Father not be permitted to have any overnight visits with Child. Mother noted that she currently had an emergency protective order ("EPO") against Father.1 While a domestic violence order had not been entered, the district court had granted Mother temporary custody of Child.
Father filed his own petition for custody of Child on December 27, 2017, which was consolidated with Mother's petition for custody. In February of 2018, the circuit court entered an agreed restraining order for Mother and Father, and Mother dismissed the domestic violence action. On March 14, 2018, the DRCfiled a report concerning temporary custody of Child. Therein, the DRC recommended that Mother and Father have joint custody of Child, that Mother be Child's primary residential custodian, and that Father have supervised parenting time with Child every Saturday from 9 a.m. to 5 p.m. Over Father's objections, the circuit court confirmed the DRC report on April 25, 2018.
The DRC held a final custody hearing on June 26, 2018. Mother testified that at the time of Child's birth, Father was working and temporarily residing in Pennsylvania. Father worked in Pennsylvania until November of 2017. While Mother acknowledged that Father did return to Kentucky for Child's birth and would make trips to Kentucky to visit, Mother testified that Father's visits would only be for short periods of time. Mother stated that sometimes when Father came to Kentucky he would spend time with his friends instead of spending time with her and Child. Because of Father's intermittent presence in Child's life until November of 2017, Mother felt like Child did not really know Father. Mother testified that she believed it was best for Child to be with her because Child had a bond with her. Mother thought that it would confuse Child to alternate weeks with her and Father. Mother testified that Child was currently meeting her milestones and was very active. Mother is primarily responsible for taking Child to the doctor and for scheduling appointments for her. She testified that she keeps Father apprised of all Child's doctor appointments and acknowledged that becauseof the restraining order she and Father could not attend medical appointments for Child together. Mother testified that Child was on a set routine and that she did not think it would be best for Child to disrupt that routine. Mother testified that she has two other children from previous relationships: K.F., who was nine years old at the time of the hearing, and S.T., who was four years old at the time of the hearing. Both of those children reside primarily with Mother, and there are no court orders concerning custody or parenting time for those children and their respective fathers. Mother testified that Child had a strong bond with both of her half-siblings.
Mother testified that she was concerned about Father having parenting time with Child because he was inexperienced in caring for infant children. Mother testified that she did not believe that Father had the patience needed to care for Child. Mother testified that when Child was first born, Father did very well with Child and was very attentive to her. As time went on, however, Mother felt that Father's interest in Child waned. Mother testified that after returning from Pennsylvania, Father watched Child for two days while she was at work. Mother testified that Father appeared to be very overwhelmed with watching Child all day, so she enrolled Child in daycare. Mother testified that there had been issues with Child when she returned from visits with Father. That past Easter, Father had returned Child approximately an hour and a half later than planned. When Fatherreturned Child to her, Child was inappropriately dressed given the weather that day. Recently, Father had returned Child and informed Mother that Child had defecated on herself. When Mother examined Child, she could see that Child had feces on her hands and legs and that Father had not changed Child's diaper or attempted to clean her. Mother testified that Child had developed a diaper rash from this incident, but that the rash was not so severe that Mother had to take Child to the doctor. Mother introduced photos of Child with excrement running down her leg, which she had taken shortly after Father returned Child to her. Mother additionally testified that she and Child's paternal grandmother have had numerous disputes over Child. Mother testified about one incident where Father and Child's paternal grandmother had taken Child to the doctor because the paternal grandmother was concerned that Child might have a tethered spinal cord. Father did not inform Mother that he was taking Child to the doctor before he did so, which upset Mother. Mother testified that when she attempted to retrieve Child from Father following the doctor's appointment, Father and paternal grandmother did not want to return Child to her.
Mother testified that she and Father ended their romantic relationship because Father had stolen her truck and tried to sell it. Mother explained that she and her previous paramour had purchased the truck together. When she and that paramour parted ways, the title of the truck had been transferred to Father. Motherexplained that the truck had only been titled in Father's name because she did not have identification on her person at the time of the title transfer. Mother obtained the EPO against Father shortly after this incident. Mother additionally testified that Father had sent her numerous threatening and abusive text messages in the past; however, Father had deleted those messages from her cell phone.
On cross-examination, Mother acknowledged that S.T.'s father was currently serving a ten-year sentence in federal prison. Mother testified that she was unsure of the actual charges against S.T.'s father, but knew that they concerned child pornography. Mother clarified that S.T.'s father's charges had not been related to any of her children, but were "Internet crimes." Mother testified that, despite his incarceration, she felt that she and S.T.'s father co-parented very well and that she involved him in all decisions regarding S.T. Because S.T.'s father had been very involved in K.F.'s early childhood, Mother allowed both S.T. and K.F. to visit S.T.'s father in prison. Mother testified that K.F. considers S.T.'s father to be a role model and explained that K.F. and S.T. do not know the reason for S.T.'s father's incarceration. Mother testified that during the summer months, K.F. resided primarily with his father. Mother acknowledged that, when she and Father were still in a relationship, she had allowed Father to babysit S.T. and K.F. for her when she was at work. However, Mother explained that this was only because S.T. and K.F. were very self-sufficient. Mother testified that Father hadpaid the deposit and first month's rent for a duplex that she had moved into in November of 2017, and had paid the deposit for her utilities. She testified that she had been unemployed from May-November 2017, but that during that period her father had paid her to assist in the care of her brother. Mother reiterated that she had been Child's primary caregiver and that she believed it would confuse Child to go back and forth between her and Father. She acknowledged that Child should have a relationship with Father, but testified that right now it was best for Child to be with her. To refute Mother's testimony that Father rarely spent time with Child, Father's counsel showed Mother multiple posts Mother had made on Facebook, which showed Father, Mother, Child, K.F., and S.T. spending time together.
Next, Child's maternal grandfather, Van Fulkerson, testified. Fulkerson testified that Mother did a wonderful job parenting Child, K.F., and S.T. Fulkerson had no concerns with Mother's home. He testified that he did not think that it was in Child's best interest to have equal time with Mother and Father because he believed this time should be a bonding time for Mother and Child. Fulkerson testified that he had observed Child's face "light up" when she saw Mother, but he did not observe Child having the same reaction to Father. Fulkerson testified that he did not believe that Father was mature enough yet to care for Child. In addition to the testimony of Mother and Fulkerson, the DRCalso heard testimony from Child's paternal grandmother and Father. The recording of that portion of the hearing, however, was not included in the record on appeal.
Both Mother and Father tendered proposed findings of fact, conclusions of law, and...
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