717 S.W.3d 176
Ky. Ct. App.2025Background
- Rita R. White (grandmother) and Margaret Sue Paris (great-grandmother) sought visitation rights for their grandchildren, J.F. and T.F., after previously failing to obtain de facto custodian status.
- The trial court appointed Allison Russell as Friend of the Court (FOC), but she later began representing one of the parents, Phillip Fowler, in the litigation, contrary to statutory restrictions for the FOC role.
- The trial court (Judge Gatewood) denied grandparents' visitation, ordered them to pay attorney’s fees to the parents, and denied a motion for recusal after the grandparents questioned the judge’s impartiality due to alleged ex parte communications.
- Appellants (grandparents) challenged the denial of visitation, the award of fees, and the refusal of recusal on appeal.
- The Court of Appeals found multiple procedural and ethical errors in the handling of the case and remanded for a new hearing before a different judge and without Ms. Russell’s participation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FOC representation | Russell, appointed FOC, improperly represented a parent. | Not directly addressed. | Russell's dual role violated statute; removal and vacatur required. |
| Attorney’s Fees Award (Visitation) | No statutory authority to award fees in grandparent visitation | Fees should be allowed as in custody cases | No authority to award fees; award vacated. |
| Judicial Recusal | Judge's impartiality compromised by unclear ex parte coms. | Decisions were based on merits, no bias. | Appearance of impropriety; judge must recuse. |
| Visitation Denial | Denial based on improper procedure and evidence. | Visitation would not serve best interests of children. | Visitation denial vacated due to procedural flaws. |
Key Cases Cited
- Commonwealth, Revenue Cabinet v. Smith, 875 S.W.2d 873 (Ky. 1994) (establishes the general standard for judicial recusal in Kentucky)
- Nichols v. Commonwealth, 839 S.W.2d 263 (Ky. 1992) (outlines procedural avenues for recusal/disqualification)
- Bissell v. Baumgardner, 236 S.W.3d 24 (Ky. App. 2007) (mere belief of judicial bias insufficient for recusal)
- Stewart v. Estate of James Cooper, 102 S.W.3d 913 (Ky. 2003) (plain language statutory interpretation rule)