Kishpaugh v. Kishpaugh

• Decision Date: 06 November 1987
• Docket Number: No. 20423,20423
• Citation: 745 P.2d 1248
• Parties: Karla KISHPAUGH (Kornmayer), Plaintiff and Respondent, v. Richard Bruce KISHPAUGH, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1248

745 P.2d 1248

Karla KISHPAUGH (Kornmayer), Plaintiff and Respondent, v. Richard Bruce KISHPAUGH, Defendant and Appellant.

No. 20423.

Supreme Court of Utah.

Nov. 6, 1987.

Michael Z. Hayes and Ronald L. Dunn, Salt Lake City, for defendant and appellant.

Jane Allen, Salt Lake City, for plaintiff and respondent.

ZIMMERMAN, Justice:

Richard Kishpaugh appeals an order awarding custody of his natural child, Brian Kishpaugh, to William and Kathryn Kornmayer, the boy's maternal grandparents. Richard challenges the trial court's finding that the presumption in favor of a natural parent, most recently articulated by this Court in Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982), had been rebutted and that it was in the best interests of the child to award custody to the maternal grandparents. We affirm the trial court.

Brian Kishpaugh was born on February 18, 1976. He has cerebral palsy and a severe hearing impairment that has rendered him functionally deaf. His parents, Richard Kishpaugh and Karla Kornmayer Kishpaugh, were divorced in 1981. Karla was awarded custody of Brian. Because of illness, however, Karla never assumed actual custody of the child. Since the divorce, Brian has resided in Chico, California, with Mr. and Mrs. Kornmayer, Karla's parents, and Mrs. Kornmayer's mother, Mrs. Landrum. For the three years between the divorce and the filing of the petition to change custody, Richard knew that the Kornmayers had actual custody of Brian and were caring for him. During this period, Richard maintained contact with Brian. He visited during Thanksgiving and Easter recesses and on several weekends a year, and he had the child in his custody for varying periods of time during the summers. Until Richard filed his petition in 1984, the Kornmayers were unaware that he wanted custody of Brian.

In April of 1984, Richard refused to return Brian to the Kornmayers after an Easter visit. The Kornmayers obtained a temporary restraining order requiring Richard to return Brian to the Kornmayer home in Chico. Richard then filed a petition to modify the divorce decree to change custody. The Kornmayers responded by filing a petition to obtain guardianship over Brian after it was determined that Karla would not be able to resume actual custody of Brian because of chronic illness.

The district court heard both matters together and entered detailed findings and conclusions disposing of both petitions. It first recognized that under Hutchison, there is a presumption that custody of a child should be awarded to a natural parent. In the present case, however, the court found that presumption to have been rebutted. It then proceeded to determine which placement was in Brian's best interests, treating the contestants as though they were on an equal footing. Custody was awarded to the Kornmayers. This appeal followed.

A long line of Utah cases deals with child custody disputes between natural parents and persons other than natural parents. Although a review of these decisions shows that the results depended heavily on the facts, this Court has consistently stated that there is a presumption in favor of a natural parent who has the care, custody, and control of his or her child. See, e.g., Farmer v. Christensen, 55 Utah 1, 5, 183 P. 328, 330 (1919); Hummel v. Parrish, 43 Utah 373, 134 P. 898 (1913); Stanford v. Gray, 42 Utah 228, 236-37, 129 P. 423, 426 (1912) (quoting Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1912)); accord State ex rel. R.L., 17 Utah 2d 349, 411 P.2d 839 (1966); Walton v. Coffman, 110 Utah 1, 12-13, 169 P.2d 97, 102 (1946); Wallick v. Vance, 76 Utah 209, 228-29, 289 P. 103, 110 (1930); Kurtz v. Christensen, 61 Utah 1, 10, 209 P. 340, 344 (1922). These cases run the factual gamut from permanent deprivation of custody, e.g., State ex rel. R.L., to a simple change of custody, e.g., Walton v. Coffman.

The rationale for the presumption is that it will normally serve the best interests of the child, which is the governing consideration in custody cases.

In a controversy over custody, the paramount consideration is the best interest of the child, but where one party to the controversy is a nonparent, there is a presumption in favor of the natural parent. Walton v. Coffman, 110 Utah 1, 169 P.2d 97 (1946).... [This presumption] is rooted in the common experience of mankind, which teaches that parent and child normally share a strong attachment or bond for each other, that a natural parent will normally sacrifice personal interest and welfare for the child's benefit, and that a natural parent is normally more sympathetic and understanding and better able to win the confidence and love of the child than anyone else.

Hutchison, 649 P.2d at 40 (footnote omitted) (emphasis added).

The presumption favoring natural parents is analogous to the presumption favoring an existing custody arrangement. Like the natural-parent presumption, the existing-placement presumption is based on the assumption that it will normally serve the best interests of the child. See, e.g., Kramer v. Kramer, 738 P.2d 624, 626 (Utah 1987); Id. at 628 (Stewart, J., concurring in the result); id. at 629 (Howe, J., concurring in the result); Fontenot v. Fontenot, 714 P.2d 1131, 1133 (Utah 1986); Becker v. Becker, 694 P.2d 608, 610 (Utah 1984); Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). The existing-placement presumption must be overcome by a showing of changed circumstances before a court may apply the best-interests test to a petition for a change of custody. See, e.g., Fontenot, 714 P.2d at 1132-33; Becker, 694 P.2d at 610; Hogge, 649 P.2d at 53-54. Similarly, in the absence of a strong showing rebutting the natural-parent presumption, custody disputes will be disposed of in accordance with that presumption because we assume that such a disposition will be in the best interests of the child.

In Hutchison, this Court set out, in what appears to be a more rigid formulation than that in prior cases, a test for rebutting the presumption. Hutchison identified three characteristics of the parent-child relationship that must be found lacking before a natural parent's presumptive right to custody can be considered rebutted:

[T]he parental presumption can be rebutted only by evidence establishing that a particular parent at a particular time generally lacks all three of the characteristics that give rise to the presumption: [i] that no strong mutual bond exists, [ii] that the parent has not demonstrated a willingness to sacrifice his or her own interest and welfare for the child's, and [iii] that the parent lacks the sympathy for and understanding of the child that is characteristic of parents generally.

649 P.2d at 41. Under Hutchison, therefore, a trial court may base a custody award on its own determination of the best interests of the child only if it finds all three enumerated characteristics lacking.

Against this background, we consider the present case. The trial court expressly found that two of the three characteristics mentioned in Hutchison were lacking. It found that Richard had failed "to sacrifice his own interest and welfare for the child's interest and welfare" and that Richard "lacks the sympathy for and understanding of the child that is characteristic of parents generally." The trial court did not expressly find that no strong mutual bond existed between Richard and Brian. However, the court did enter specific findings regarding the bonds between Brian and the various parties. Findings of fact 10, 11, and 12 state that "there is love between defendant and his son," that "a deep bond of love exists between the minor child and his grandparents," and that "there is a stronger bond between the minor child and the petitioners than with the defendant."

Richard contends that to comply with Hutchison, the trial court must make an express negative finding with respect to all three characteristics. Because only two of the three required negative findings were made, Richard argues, the natural-parent presumption has not been overcome. Therefore, the trial court erred in evaluating his claim and that of the Kornmayers on an equal footing.

In response, the Kornmayers argue that the district court's findings substantially comply with Hutchison. The last two Hutchison findings were expressly made, and findings of fact 10, 11, and 12, when taken together, amount to a finding that no strong mutual bond existed between Richard and Brian. The Kornmayers also urge that substantial evidence supports each of these findings, as well as the finding that Brian's best interests would be served by placing him with them.

No case since Hutchison has considered the application of its three-pronged test. In both Cooper v. DeLand, 652 P.2d 907 (Utah 1982), and Tuckey v. Tuckey, 649 P.2d 88 (Utah 1982), the decisions of the lower courts were remanded for further findings consistent with the test set forth in Hutchison. In neither case did we elaborate on the Hutchison test or have occasion to apply it. Therefore, our case law is silent on whether Hutchison's three negative findings must be made in an almost mechanical fashion before a trial court can properly conclude that the presumption in favor of the natural parent has been overcome.

Hutchison itself indicates that it does not establish a wooden formula to which all trial court findings must conform. In discussing the three-pronged test, Hutchison states that "the parental presumption can be rebutted only by evidence establishing that a particular parent at a particular time generally lacks all three of the characteristics that give rise to the presumption...." 649 P.2d at 41 (emphasis added). Obviously, a "general" lack is not an absolute lack. Thus, the standard articulated in Hutchison is somewhat flexible.

This reading of Hutchison is supported by the rationale for the presumption: that the three characteristics will "normally" inhere in a relationship between a natural parent and child and...