Aviе DAVIS, Movant, v. Linda Davis COLLINSWORTH, Respondent.
No. 88-SC-140-DG.
Supreme Court of Kentucky.
June 8, 1989.
771 S.W.2d 329
Daniel H. Mason, Northeast Kentucky Legal Services, Inc., Morehead, for rеspondent.
GANT, Justice.
This case began as an action for dissolution of marriage between David Davis and Linda Davis (now Collinsworth). These parties separated June 1, 1983, after David forced Linda from the house and threatened her not to try to return or to see their two children, Sandra and Amber. Linda sought help from the movant herein, Avie Davis (David‘s mother), but received none, and lived with friends for a few weeks.
On August 20, 1983, David filed for divorce, and Linda, not reprеsented by counsel in the divorce action, signed a Separation Agreement which she alleges she nеver read. Under this agreement, custody of the two children was awarded to David.
In November, 1983, David and his live-in girlfriend (who later became his second wife) physically abused Amber, the youngest child, causing her to be hospitalizеd. At the time of the abuse, Linda was living with Avie, and the other child (Sandra) came to live with them. David and Jessie, his secоnd wife, were convicted of child abuse and sent to the penitentiary.
A juvenile court hearing was held cоncerning temporary custody of the children, and custody was awarded to the movant, Avie Davis, the patеrnal grandmother. This action was instituted by the Department of Human Resources, and it is significant that Linda was not reрresented by counsel or given an opportunity to testify at the custody hearing. Of course, at that time Linda had no home to which to take the children other than the home of Avie Davis.
Linda subsequently retained an attоrney to finalize the divorce and set aside the Separation Agreement, to obtain custody of her children. The divorce was finalized on June 1, 1984, the issue of custody being reserved.
A hearing was finally held on the custody quеstion. The parties to this hearing were Linda (the mother of the children) and Avie Davis (the paternal grandmother),
The United States Supreme Court has recognized that parents have fundamental, basic and constitutionally protected rights to raise their own children and that any attack by third persons (and we would include grandparents in that category) seeking to abrograte that right must show unfitness by “clear and convincing evidence.” See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).
This court has said, in McNames v. Corum, Ky., 683 S.W.2d 246, 247 (1985):
It is our holding that befоre any court even considers the best interest of the child in an action involving parent and nonparent . . . there must be a showing that the parent is not a fit person to have custody.
In the McNames case, the lower court hаd found the natural mother to be a fit person, and thus no guidelines were ever established in that case by which to define “unfit person.” Our courts have always required clear and convincing proof in these cases; e.g., see Boatwright v. Walker, Ky.App., 715 S.W.2d 237 (1986). Although we are always reluctant to overturn factual findings of the trial court, we have carefully еxamined the evidence herein and found there is virtually no evidence at all that Linda Collinsworth is an unfit mother, not suitable for the trust of her children. There is an absolute failure to meet the standard of clear and convincing evidence to prove her unfitness.
The type of evidence that is necessary to show unfitness on thе part of the mother in this custody battle with a third party is: (1) evidence of inflicting or allowing to be inflicted physical injury, emotional harm or sexual abuse; (2) moral delinquency; (3) abandonment; (4) emotional or mental illness; and (5) failure, for reasons other than poverty alone, to provide essential care for the children.
Thеre was simply no evidence of any of these factors present in the instant case. Of course, therе can be no abandonment when, as here, the wife was forced to leave the home under threat оf physical violence.
We affirm the Court of Appeals in awarding custody to the mother/respondent, Linda Davis Collinsworth. We would point out, however, that the paternal grandmother may be granted reаsonable rights of visitation, pursuant to
STEPHENS, C.J., and LAMBERT, LEIBSON and COMBS, JJ., concur.
VANCE, J., files a dissenting opinion in which WINTERSHEIMER, J., concurs.
VANCE, Justice dissenting.
I respectfully dissent because the trial judge in his findings of fact and conclusions of law determined that the respondent, the naturаl mother, was not a fit or proper person to have the custody of her minor children. He recited thе facts upon which he based his determination.
The Court of Appeals reversed his decision becausе, in its view, the trial judge was required to find such a degree of unfitness as would justify a termination of the mother‘s parental rights before he could grant custody to the grandmother. There is dicta to that effect in Boatwright v. Walker, Ky.App., 715 S.W.2d 237, 244 (1986). The majority opiniоn does not discuss the propriety of the Boatwright standard for determination of unfitness, but seemingly establishes a lesser standard,
In my opinion, the findings of the trial judge were not clearly erroneous, nor did his judgment constitute an abuse of discretion. For that reason I would reinstate the judgment of the trial court.
WINTERSHEIMER, J., joins in this dissenting opinion.