Hardin v. Hardin, 85-CA-302-MR
| Decision Date | 13 June 1986 |
| Docket Number | No. 85-CA-302-MR,85-CA-302-MR |
| Citation | 711 S.W.2d 863 |
| Parties | Patricia Sue HARDIN (Now Ralph), Appellant, v. Johnnie Allen HARDIN, Appellee. |
| Court | Kentucky Court of Appeals |
John W. Stevenson, Thomas O. Castlen, Owensboro, for appellant.
Richard T. Ford, Owensboro, for appellee.
Before HOWARD, LESTER and REYNOLDS, JJ.
This is an appeal from findings and conclusions of law in a dissolution of marriage action. Several errors are alleged by the appellant, the first of which is that the trial court abused its discretion in awarding joint custody of two minor daughters.
The parties were married in 1965, and the appellant, hereinafter referred to as Sue, filed for dissolution in August of 1983. The two children born of the marriage are now 12 and 10 years of age, respectively. During the pendency of the action, both parties have filed numerous pleadings and various motions relating to issues of custody, support, property division and visitation. Several depositions were taken and a great deal of testimony was heard, most of which relates to the custody of these two children, it being obvious that both parties desired sole custody. The trial court specifically found that both parents were fit and suitable custodians, and determined that it was in the best interests of the children that the parties be awarded joint custody. While there is no dispute as to the finding that either parent is fit, the mother appeals from the court's ruling that joint custody would be in the best interests of the children. In light of the particular circumstances of this case, we agree that the trial court's division was not in the children's best interest. KRS 403.270(3).
During the course of the proceedings below, appellant remarried and moved to Hobart, Indiana, approximately 300 miles from Ohio County where the appellee resides and where the children were raised. The fact that Sue's new husband is also her first cousin has been argued as evidence of her unsuitability by the appellee. This, in addition to disputes over numerous issues below and in this Court, indicates that there is a great deal of discord and lack of cooperation between these parents.
There is very little law in this Commonwealth relating to joint custody, undoubtedly because of the rather recent enactment of legislation giving the court authority to grant such an arrangement. KRS 403.270(3). However, the benefits to be gained by both the children and the parents can be great. H. Robinson, Joint Custody: An Idea Whose Time has Come, 21 J.Fam.L. 641 (1983). Unfortunately, the particular circumstances of some cases make joint custody infeasible. 17 ALR 4th 1013, Annot. (1982). This is such a case.
In dividing custody, the trial judge provided for the children to spend one-half of the school year with their mother in Indiana, and one-half of the year with their father in Kentucky, essentially splitting the summer vacation in the same manner. While the parties agree as to a desire that the children attend private rather than public schools, it seems they can agree to little else.
Normally, where one parent is given custody, he or she has the right to determine matters such as the child's education, health care, and religious training. In a joint custody arrangement, both parents share the decision-making in major areas concerning their children's upbringing. Burchell v. Burchell, Ky.App., 684 S.W.2d 296 (1984). In the case at bar, it appears highly unlikely that these parents would be able to agree and cooperate with each other on such matters. Indeed, there is already an apparent dispute over the need for orthodontic treatment for one of the children and who should pay the costs.
It would seem obvious that joint custody cannot be in the best interests of the children where the parents are not sufficiently understanding and mature enough to cooperate in such an arrangement. Petrilli's Kentucky Family Law Sec. 26.86 (Supp.1985); Revell & Slyn, Kentucky Divorce Sec. 9.6 (1984). Moreover, we believe the logistical problems, mandating a change in the children's school and residence every six months, would be extremely disruptive and detrimental to these children.
Consequently, we are reversing and remanding this cause for the trial judge...
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...867 (1986); Erdman v. Clements, Ky.App., 780 S.W.2d 635 (1989). A leading joint custody decision in this jurisdiction is Hardin v. Hardin, Ky.App., 711 S.W.2d 863 (1986), a case in which the custody dispute arose upon dissolution of a marriage of long duration, when the children were twelve......
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