Maxwell v. Maxwell
2012 Ky. App. LEXIS 223
Ky. Ct. App.2012Background
- Angela Maxwell and Robert Maxwell married in 1994 in Arkansas; three children: J.H.M. (1997), S.M.M. (1999), J.T.M. (2005).
- Parties separated in 2010; divorce filed with request for joint/shared custody; Robert sought sole custody.
- A pre-temporary order (Oct 2010) provided joint custody and weekly alternating parenting time; prohibited overnight non-family guests during custodial weeks.
- A 2011 settlement left custody issues unresolved; Robert was to have exclusive use of the marital home; final hearing held Sep 29, 2011.
- Trial court awarded Robert sole custody on Jan 5, 2012 with limited visitation for Angela and a non-cohabitation rule; Angela appealed.
- Court reverses and remands for proceedings consistent with opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by considering Angela’s same-sex relationship. | Maxwell contends the court relied on an unrelated, discriminatory factor. | Maxwell asserts the court based custody on best interests and relevant factors. | Yes; court abused discretion by basing on sexual orientation. |
| Whether sole custody was clearly erroneous and an abuse of discretion. | Maxwell argues joint/shared custody was working and should continue. | Robert claims sole custody is in the children's best interests. | Held for Maxwell; order reversed and remanded. |
| Whether admission of text-message evidence was improper hearsay. | Maxwell asserts the messages were inadmissible hearsay. | Court properly considered testimony about hostility; texts not admitted. | No reversible error; admission deemed permissible for weight. |
| Whether the cohabitation restriction during parenting time was permissible. | Maxwell argues prohibition is inappropriate and should be retried on remand. | Robert contends restriction is a valid factor to consider. | Remanded to reconsider; prohibition to be retried with best interests standard. |
Key Cases Cited
- Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992) (homosexual activity not criminalized; due process/equal protection concerns in custody)
- Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010) (same-sex relationship standing to seek custody; orientation alone not misconduct)
- Krug v. Krug, 647 S.W.2d 790 (Ky. 1983) (misconduct may be considered if shown to affect the child)
- Palmore v. Sidoti, 466 U.S. 429 (1984) (cannot deny custody based on private biases or race”; due process protections)
- Romer v. Evans, 517 U.S. 620 (1996) (strict scrutiny of discrimination against homosexuals; equal protection concerns)
- Vinson v. Sorrell, 136 S.W.3d 465 (Ky. 2004) (parents have fundamental right to raise their children)
- Squires v. Squires, 854 S.W.2d 765 (Ky. 1993) (joint custody not conditioned on perfect cooperation)