Chad Fitzpatrick v. Jeanette Calloway, 2022 CA 000136

Background

Child C.F. (b. 2006) was placed in paternal grandmother Jeanette Calloway’s custody in 2010 after both parents were found unable to care for her due to substance abuse.
Father Chad Fitzpatrick maintained regular visitation over the years, reported over four years sobriety at the 2021 hearing, and lives in South Point, Ohio with a live‑in girlfriend.
In 2021 Fitzpatrick petitioned to modify custody; the guardian ad litem and the then‑16‑year‑old child stated she wanted to live with her biological parents and split time equally.
Calloway opposed removal, noting the child’s stability in her home and school, prior parental substance issues, the father’s out‑of‑state residence, and an incident where the father’s girlfriend expelled the child during a visit.
The trial court found substantial evidence supported leaving custody with Calloway (child stable, receiving counseling, long‑term placement with grandmother) and denied the petition; the Court of Appeals affirmed.
The panel noted appellant’s briefing rule violation but declined sanctions; Judge Taylor concurred in the affirmance but dissented as to an unlawful delegation of visitation scheduling to Calloway.

Issues

Issue	Fitzpatrick’s Argument	Calloway’s Argument	Held
Whether the trial court abused its discretion in denying a custody modification under KRS 403.340 (best‑interest analysis).	Change is warranted because the child wants to live with her parents, parents are now sober, and GAL recommended living with father.	Continued custody with Calloway is in child’s best interest given long‑term custody, school stability, counseling, and concerns about father’s home stability.	Affirmed — trial court’s factual findings are supported by substantial evidence and not clearly erroneous; no abuse of discretion.
Whether the child’s expressed preference alone justifies changing custody.	The child’s preference should be controlling given her age and maturity.	Preference is a factor but not dispositive; must be weighed with other best‑interest factors and potential parental influence.	Held that preference is considered but insufficient alone to overcome stability and welfare findings favoring grandmother.
Whether the trial court’s failure to follow appellate briefing rules (RAP) warranted dismissal or other sanction.	(Implicit) Any procedural defects should not bar review.	Procedural compliance required, but appellate court may excuse minor noncompliance.	Court excused the briefing defect and decided the appeal on the merits.
Whether the trial court unlawfully delegated visitation scheduling to Calloway (raised by concurring/dissenting judge).	(Not raised by appellant on appeal)	The court’s order delegated discretion to custodian to decide visitation.	Majority did not address; Judge Taylor would remand because delegation violated KRS 403.320(1) and Stewart v. Burton.

Key Cases Cited

B.C. v. B.T., 182 S.W.3d 213 (Ky. App. 2005) (standard of review in custody cases and deference to family court factfinding)
Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986) (factual findings must be supported by substantial evidence)
Moore v. Asente, 110 S.W.3d 336 (Ky. 2003) (definition and application of substantial evidence)
London v. Collins, 242 S.W.3d 351 (Ky. App. 2007) (appellate review limited when findings supported by substantial evidence)
Maxwell v. Maxwell, 382 S.W.3d 892 (Ky. App. 2012) (custody modification standards)
Stewart v. Burton, 108 S.W.3d 647 (Ky. App. 2003) (visitation may not be restricted without court making a finding of endangerment)
Priestley v. Priestley, 949 S.W.2d 594 (Ky. 1997) (appellate court may address issues not raised by parties if record confines review)
Mitchell v. Hadl, 816 S.W.2d 183 (Ky. 1991) (appellate courts may decide unraised issues in appropriate circumstances)