Squires v. Squires

only represented (not parties), witnesses

and court was in session.

4) Finally, Judge put lawyer Hinton jail trying, faithfully respectful-

ly, to represent his clients. fully supports record the conclusion that “Judge Commission Hinton ...

did not patience, accord Mr. Anderson the

dignity courtesy to which he enti- represent clients,”

tled in attempting Judge Commission’s decision that significantly

Hinton’s conduct was so will- A(3)

ful pervasive as to violate Canon justify “PUBLIC CENSURE.”

Judge conduct jailing Hinton’s an attor-

ney for contempt pre- the circumstances arbitrary

sented was so that it abusive

well have merited a pen- more severe

alty than that which the im- Commission

posed, certainly but record does

justify overruling the Commission and ex-

onerating Judge Hinton.

Our Court should affirm the Commis-

sion’s decision.

LAMBERT, J., joins this dissent. SQUIRES, Appellant,

Rosemarie R. SQUIRES,

Paul Appellee. W.

No. 92-SC-289-DG.

Supreme Court of Kentucky.

April 1993.

Rehearing July Denied 1993. Lonneman, Elizabethtown,

Phyllis K. appellant. II, Skeeters,

David Wilson Donald T. Radcliff, appellee.

LAMBERT, Justice. discretionary granted This Court review ap- proper construction and to address the 403.270(4).1 With its 1980 plication KRS statute, foregoing enactment of the expressly Assembly declared General right grant of trial courts only with the to the being Hereto- standard “best interest.” provided any guid- has not fore courts in exercise of their ance trial As use discretion. broad subject is the of considera- to be little appears debate and there ble uniformity among the courts of Ken- took review of tucky application, we elements it contains the classic dilemma. records, review, (f)Information, and evidence of

1. is here For convenient 403.270 in KRS 403.270. domestic violence defined reproduced entirety. in its (2) consider conduct of The court shall not Custody of child "403.270. interests —Best proposed that does affect his a relationship custodian custody permitted.— shall determine —Joint domestic violence to the child. If (1)The custody in ac- court shall determine alleged, shall determine and abuse is the court with the of the child cordance best interests violence and the extent to which domestic given equal to each consideration shall abuse affected the child and the child's parents. relationship to both parent. The relevant court shall consider all (3) family resi- The abandonment of including: factors party dence custodial shall not be consid- (a) parent The wishes of the child’s or party physically harmed ered where said custody; ents as to his seriously physical with or was threatened (b) The wishes of the child as to his custodi- spouse, harm his or her when such harm an; causally harm was related to the or threat of (c) interrelationship of The interaction and abandonment. his sib- the child his (4) may grant to the any signifi- lings, person other child’s if it is interest of the in the best interests; cantly affect the best child’s 1978, 182, 17; 1972, (Enact. § child. Acts ch. home, (d) adjustment child’s 17, 1978; 1978, 86, 1, ch. ch. 369, effective June § school, community; 1978; 17, 1980, 1, ch. effective June § (e) 158, 15, 1980; 1992, physical 1, health of all July mental ch. § effective 14, 1992.)” involved; July § individuals effective parties’ animosity de- having personal Of four-month marital cohab- avoid Upon upbringing itation was born son. commence- stabilize the child. proceedings ment to dissolve the mar- “overwhelming Appellant contends riage appearance dispute of a over cooperation of discord and lack of evidence alia, custody, child the case as- inter was parties” judgment between the renders the signed to the Domestic Relations Commis- awarding joint custody clearly erroneous testimony sioner who heard extensive against when measured the best interest rendered of con- proposed findings fact and relies standard. For this contention she clusions of law. The Commissioner found upon scholarly various articles and deci- parties good parents that both would be jurisdictions appear from which sions other place who would the interest of their child support to the view that without substan- This, believed, likely first. he made them parental cooperation, joint custody tial However, joint custody. candidates for he “joint undesirable.2 She concludes that also found the were that not suffi- custody demands ideal circumstances ciently cooperative joint to accommodate exceptional parents to at Even succeed all. custody and recommended that it be not highly committed and motivated granted. exceptions On to the Commis- ents, joint custody is not for all children.” report, sioner’s the trial court acknowl- Appellant to asks Court set standards hostility edged parties, the the between but for trial for their courts the exercise of concluded prevent that alone not an did and, respect discretion with to joint custody. empha- award of The court effect, suggests that in the of absence sized that “good parents” the were agreement by parties, joint custody the “policy” grant joint reliance awarded, then, should not be and even custody and the statutory standard of trial court should be satisfied interest, child’s best determined that agreement procured not improperly benefits of custody outweighed the appropriate and that it is in the circum- detriments. The court also stances. availability subsequent of custody litigation granted, Appellee upon been relies the statute and difficulty extreme litigation points any statutory of such to the of re- absence when sole granted. has been quirement parties agree upon Upon the foregoing, judgment custody. was entered He relies the trial court’s granting parties joint coop- broad discretion and observes that if prerequisite eration is declared a panel A divided custody, any party may defeat it bad affirmed the trial court. majority em- cooperate. suggests faith refusal He phasized positive aspects custo- proper standard is whether the dy such as shared decision-making, paren- from court believes the evidence there is a tal involvement in rearing and encour- cooperation reasonable likelihood of future agement parental It also will which redound to the child’s best inter- availability subsequent noted the litiga- est. if joint custody tion proved to be unwork- dissenting opinion expressed able. The foregoing argu- From the facts and prior ments, view that to an award of emerges custo- issue is whether dy, the court must be satisfied that good parents who found to parties possess maturity sup- sufficient will place endeavor to interest press enmity toward one another and uppermost their child should denied Sun, Law,” 916, Family (1984); 2. See M. "1988 Review A.D.2d 483 N.Y.S.2d 879 Salamone Review, Clearing 1989); p. Salamone, 778, (January House 944 v. A.D.2d 443 464 83 N.Y.S.2d Lowe, "Evaluating (1981); 584, Braiman, I.W. Parental Potential 44 Braiman N.Y.2d 407 Mich.B.J., (Fall Custody," 449, pp. (1978); Joint 69 140-3 N.Y.S.2d 378 N.E.2d 1019 In Re 1990); Post, Adams, “Arguments Against Dianne Joint 133 Ill.2d 141 Ill.Dec. 551 Journal, Custody," Berkeley (1990); Lester, 4 p. Marriage Women's Law N.E.2d 635 and In Re (1989, 90). Blake, 316 See also Blake v. 106 (Colo.Ct.App.1990). P.2d 1244 arrangement. hostility due to their and refusal and visitation such, with one another. As some contend that better spouses clean break between outset, At the we must consult award one the other cursory the statute. examination of bring rapid adjust- about child’s most overriding KRS 403.270 manifests the con post-divorce ment circumstances. While any custody sideration that determination logic position unappealing, of this be in It is the best interest the child. fully applied, if it the role equally parent clear neither is the noncustodial would be diminished preferred parents’ custodian and the point insignificance. wishes, consideration, while binding the trial court. are While inclined, if so Even this Court were is on custody the focus of this case prerogative to not our eradicate (4) 403.270, in section of KRS authorized custody concept from the law of of grant custody or deny joint the decision to Kentucky. Assembly The has de General cannot be without reference to determined duty is termined that it is viable and it our such, array of the entire Act. As the broad statutory a man apply to framework in in must con factors contained the Act gives legislative ner which effect to intent. prior a appropriately sidered to determina Martin, Hurley Ky. H.O. Co. v. joint custody custody. of tion sole language 101 S.W.2d 657 From used, Assembly in the General we believe assumption it begin We with the option inform their to tended to courts of a would be in child’s best to be interest joint custody proper award in a case with by parents reared two who are married mandating any Implicit out use case. its each other. See KRS 405.020. With joint custody in the authorization to award divorce, however, occurrence of a cir- such becoming is the court do so after not possible cumstance is and trial courts reasonably satisfied that for the child formulating are faced the task with of positive aspects outweigh those custody arrangement nearly which will as significant negative. We no difference see possible replicate and minimize ideal required respect analysis with between the such, disruption life the child. As analysis required than prior any particularized assessment grants sole In when the child, joint custody case, all either the court must consider appear would to be the solu- best available formulate result relevant factors and theory, tion. the child continue to would interest of the child which is best by be reared both and have the Legislative au at issue. whose decision-making re- benefit of shared joint custody merely gives thorization of matters, spect important with neither if such the trial court another alternative parent being designated primary as the appears appropriate. to be relegated custodian and other to a sec- ondary Clearly, status. it was this ideal parties signifi have debated the Assembly to General which motivated the willing agreement parental cance grant trial declare that courts cooperate ness to at the time of the custody, place it within the context of but we have no doubt of determination. While 403.270, statute, KRS the entire greater likelihood successful by and limit it the best interest test. spirit a cooperative prevails, many regard prece that in do not it as condition widely

It now we cases, permit spouses party former are un- dent. To so embittered hold would willing animosity opposes put joint custody aside dictate the result belligerence his cooperate by child’s best interest. or her and would toward their own Moreover, contemptuous joint custody merely prolongs famil- invite conduct. Often circumstance, provides underlying parties’ ial conflict and vindictive virtually weapon against divorce, by use with a convenient is attended conflict course, every require To goodwill Of the same is true case. between one another. prior factors, depended proper to an award of custo- it too much on the dy virtually and, parties’ present would the effect of writ- failure ing effect, permitted it out of the one law. or both of them to deprive custody option the trial court of a By what standard then a tri should granted Assembly. General al joint custody court determine whether recent most granted? Initially, should be the court jurisdiction Chalupa Ky. Chalupa, must consider those factors set forth (1992), App., 830 S.W.2d 391 in which the 403.270(1). application these, By reversed the trial court’s custody being the child whose litigated is award to the mother. De individualized and his or her unique circum spite finding both cases, In many ap stances accounted for. “responsible,” the trial court nevertheless propriate 403.270(1) consideration KRS deprived the father of due to may reveal the result which be in would frequent his absence from home necessitat Thereafter, best child’s interest. we employment. Chalupa ed deci beyond believe a court should look points sion made a worthy number present and assess the likelihood of future First, repetition here. it noted even cooperation parents. between the It would awarded, custody when is the court shortsighted to conclude that because designate may the usually where child shall parties antagonistic are at the time of their reside, and may we declare that the court divorce, such antagonism in will continue such necessary make other orders as are definitely. maturity ap Emotional would properly joint custody. effectuate Chalu- pear dependable guide predicting pa recognized joint custody also envi By cooperation future behavior. mean we shared decision-making sions and extensive willingness to rationally participate in deci parental upbring involvement in the child’s affecting sions upbringing the of child. the ing, general and in serves the child’s best It should not be overlooked that to achieve Finally, interest. the Court cooperation, such the trial court assist joint custody may have the effect of parties by the power means of its contempt encouraging parents stay and and power modify custody in the on their best behavior. event of a bad faith refusal if Havens, custody party “Joint can be modified a Benassi v. Ky.App., 710 S.W.2d acting (1986); uncooperative. is faith or 867 bad Clements, Ky.App., Erdman v. any The trial court at time 635 can review S.W.2d joint custody if party being and leading joint custody decision in unreasonable, modify custody to sole jurisdiction Hardin, Ky. Hardin v. custody in of the par- favor reasonable App., (1986), 711 S.W.2d 863 a case in Surely, high, ent. with the so stakes which dispute upon arose disso cooperation there would be more which lution a marriage long duration, interest, leads to the child’s best the children were years twelve and ten interest, appear- ents’ best fewer court age, and mother had moved a substan judicial economy.” ances and Id. at 393. tial distance from the home of the father. Reversing the trial court’s award of stop endorsing While we short equal Chalupa division the children’s preference joint custody, i.e. time between first,” Court of “consider we endorse Appeals appears to have assumed that be many expressed of the views An therein. parties cause cooperat were not then majority examination dissenting ing, they cooperate. could not Court opinions which, in Chalupa, incidentally, appears also by been influenced the was Appeals panel same Court of distance the case, lived from one another which decided this well illustrates the disruption and the by changing occasioned opposing philosophical views of the issue at every the children’s school six months. In analysis, however, hand. final whatever While the Court in Hardin considered the philosophy may one’s respect be with summary 403.270(4) long presenting that in joint custody, KRS rule clear so as events, procedural party Kentucky, joint of the facts remains the law of provide dignity as sole shall must be accorded the same custody and must determine trial courts specific pages “ample references to serve the best interest record, which form would tape digital counter or the child. in the case untranscribed number supporting each of the tape-recordings, Perhaps no decision confronts summary.” statements narrated difficult a con circuit courts is more than 76.12(4)(c)(iii). CR cases, In tested child case. such Moreover, not been informed we have shall the court is called to decide who preserved question what means perceive as have what the often appellate required by CR review as precious With “possession.” their most 76.12(4)(c)(iv). omissions While these 403.270(4), this bur enactment of review, any would be sufficient to defeat enhanced, duty of the den was but the disputed the appellee has not inasmuch as is im court remains the same. Just assertion, appellant’s truth of permissible prefer one over accepted contention impermis now gender, other based true, will the merits. we address custo prefer sible to sole over dy. every entitled re- After rendition of the Commissioner’s to an individualized determination by the trial port, exceptions heard were whether ample given court. The interest. That serves the child’s best present contentions opportunity to this re possesses broad discretion in orally writing, response and in gard gainsaid. v. cannot be McNamee this, thorough set court rendered a McNamee, (1968). Ky., 432 S.W.2d 816 fact, of law and findings of conclusions Subsequently, appellant’s mo- decree. bar, the case at the Court tion, extensively judgment was the final the trial court’s use of amended. “policy” award justification term as merely was means find the trial court’s Our examination of good expressing view these were departure from the ings of reveals no fact parents put the interest of their would on the Commissioner facts found first, would, time, in achieve and departed only on Their views issue here. acceptable level of While therefrom, legal drawn conclusion to be application Court is uncomfortable with the i.e. whether “policy” implies such insufficient This case differs in the circumstances. statute, under the our review analysis Lynch, Ky. substantially Lynch from v. judgment trial court orders (1987), in which App., 737 S.W.2d 184 painstaking reveals no failure consider- fact, findings of prepared its trial court Moreover, courts ation of the case. both prior to con of law and order conclusions availability of aware of the below well central hold the evidence. The clusion of in subsequent litigation the event the process re ing in that “due Lynch was ties remain obstinate. minimum, quires, party that each at opportunity given meaningful necessary concluding Prior nearly more at This case heard.” Id. 186. appellant’s to address contention that Haley, Ky.App., 573 Haley resembles process her law trial court denied due (1978), that CR 53.- held S.W.2d 354 rejected recom when it 06(2) judge complete dis the trial “allows Relations Com mendation the Domestic to the use of commissioner’s cretion as reviewing missioner without first the video also at The said: report.” Id. 356. Initially, we tape hearing. discover judge modified the “Although the trial nothing appellant’s brief which discloses order, he not alter the did for her contention that the trial commissioner’s basis It therefore findings of fact. judge did not review the evidence. Our attached

771 1) appears adopt (July p. Journal that the court intended Wall Street Bl). findings.” those Id. at 356. authorities,

Based these we discov- 2) Sun, Family M. “1988 Review of Law: handling er no error in the trial Review,” court’s p. (January Clearing House 944 exceptions phase. the case at the 1989).

We affirm. 3) Lowe, “Evaluating Po- T.W. Parental Custody,” tential for Joint 69 Mich. B.J. STEPHENS, C.J., COMBS, 1990). (Fall 140-43 REYNOLDS, SPAIN and 4) Post, “Arguments Against D. Joint WINTERSHEIMER, JJ., concur. Berkley 4 Custody,” Women’s Law Journal J., LEIBSON, by separate dissents 90). 316-25, (1989, opinion. 5) Wallerstien, McKinnon “Joint LEIBSON, Justice, dissenting. Child,” Custody and the Preschool 4 Behav- (1986). ioral and the Law Sciences 169 Respectfully, I dissent. 6) Steinnman, Zemmelman and Knob- The profoundly will lauch, Study of Sought “A Parents Who affect the future of countless children. Following Custody Joint Who Divorce: subject to interpret apply how Agreement Reaches and Sustains Joint 403.270(4), which states: Custody Court,” Who Returns grant “The Academy Journal of American of Child child’s if it is the best Psychiatry 554-62 interest of the child.” Opinion Majority acknowledges statute, Under this including subsection data, empirical existence of this and cites (4), the “best interest of the child” contrary. no data to the None is cited just thing another along to be considered Majority disregards signifi- us. Yet the sensibilities of the cance. awarding custody. just It is not the most important thing. only thing. It is the report prepared February on Family the Ad Hoe Committee Dissolu- Majority Opinion states: Kentucky Psychological tion of the Associ- cases, “In such the court is called ation, “Custody entitled and Visitation Pat- to decide parties who shall have what Divorce,” up terns sums Children perceive precious often as their most ” follows: ‘possession.’ joint “It that should be custo- “precious” Children are not as their but dy panacea. requires is a It not that the parents’ “possession,” and must capacity have emotional and not treat them as such. science data Social psychological commitment to resolve amassed joint since the advent of the custo- engage and their differences in communi- dy experiment years plus ago some 20 cation, cooperation, compromise. studying the effects of Obviously, imposed it cannot be aon awards overwhelmingly demonstrates couple way fighting resolving a few, except for “those exceptionally ma- dispute. It their is also not for those ture adults who are able set aside ani- thought impli- through not have cooperating mosities in for the benefit of It should not cations .... be used as a children,” joint their prob- not a custody is ‘cop-out’by the court to the careful avoid solver, lem a pernicious problem but cau- all of the weighing of variables determin- Twiford, J.D., Ph.D., ser. J. Rainer Joint ing the child’s best interests....” Custody: Leap Faith?, A Blind Behav- Law, ioral Sciences & p. No. Vol. The Trial Commissioner this case was reality. 157-68 Appellant’s findings, The Brief cites tuned in His after a numerous reviewing articles lengthy, video-taped hearing some fol- were as social science data: lows: recognizes that this has been “The Court cooperation communication be-

“... in which the required very for another bitter divorce parties is an tween attorneys hotly case, their joint custody.... In this award of issue_ nearly every Hope- contested is obvious to Court [Commissioner] finalized, the cooper- is agree fully, this divorce that the cannot after necessary parties, who are mature individuals and accommo- ate to the extent teenagers, will joint custody award.” not date a give and that is best interest take heard trial court neither the evidence The [Emphasis of the child.” added.] tapes, joint nor but awarded reviewed good enough. Rather than finding, stating it This is not custody contrary to this finding “grant joint what the record shows “policy” was the court’s child, it possible to best interest of the evades do custody of children whenever so,” issue. that “the national trend is mistaken as custody.” The trial court was 2-1 in the Court of This was a present of the “policy” direction Opinionby Judge Dissenting Appeals. The suffices “national trend.” Neither reason should Huddleston embodies what the law finding custo- support in favor be: dy in this case. considering “In ar- where, imperative the court

Obviously rangement, are eases based there (not parties possess presented policy or determine whether on the evidence suppress trend), maturity necessary an ar- enmity another when ad- one statute makes toward rangement, and affecting dressing their child. issues the deci- it available for such cases. But atmosphere allowing coop- Without it should turn on individual- sion to award ideas, exchange erative fact-finding, inappropriate policy ized personal will tend inflict their animosi- Majority conclud- considerations. child. The detrimental and ties on the accept ed the trial could destabilizing effect custodial yet fact-finding, reach a Commissioner’s uncooperative arrangement between contrary as to result whether apparent.” ents appropriate. rather than sole was question plainly It mistaken. power to decide had the The trial court arrangement is a proper custodial fact when the court de But the facts novo. question. depends It what evidence preliminary utilized a Commissioner placed presented. law allows fact-finding, required that find- 52.01 CR only facts that can justify, where the Commissioner not ings fact made only the fact-finder. The be decided until the court aside unless and set accept not the facts found trial court could reached a differ- the reviewed evidence parents’ to by the Commissioner as the Fact-finding is a function ent conclusion. custody, yet disregard suitability to share to the evidence opportunity evaluate his the ultimate fact based on decision on credibility of the the firsthand and assess policy These consid- policy McNamee, considerations. Ky., v. witnesses. McNamee law, part are the and disre- erations not present In the case 432 816 S.W.2d undermining gard empirical the data not the evidence court did evaluate trial firsthand, cogency. simply He or even secondhand. exceptions par- filed considered the awarding joint custody the trial Before to the Domestic ties and declined follow required to find that these court should be a finding, based on custody Commissioner’s emotionally mature presently are misper- and is a policy which is not the law sharing capable cooperating and adults ception trend. of the national raising in in decision-making involved child, they testimony in case overflows with “hopefully” will this this not that and recrimination between so. order of the trial bitterness become The final contrary: parents, charges and counter-accu- in this is hostile case to moral, health, Judge and the harm sations. As Huddleston summa- or emotional rized: change likely to caused a of envi- be case, outweighed by advantages

“In never lived to- ronment is gether and established a foundation to him.” mutual trust and The rec- Quisenberry Quisenberry, Ky., In v. strongly suggests, ord Commis- (1990), S.W.2d 485 our observed, sioner both that while is policy behind the statute custodians, they suitable un- stop stabilize the child’s circumstances able in to communicate fighting custody further over his unless raising of their son.” mental, physical, the child is in serious mor- least, this At the case should be remand- danger. al or emotional The best interest ed to the trial court with instructions child, of the as the is well custody trial court to determine the by forcing quarreling parents served issue a based on review of evidence circumstances, adapt accept to new firsthand. finality of the decree and their new ar- support In preference of his rangements, present. to live in the Chil- states, “[sjince joint custody the trial court stand, they dren need to know where keeps custody can modified it both go from forward thére. good ents on their behavior to avoid a change custody.” thinking This Significantly, wishful no Benassi offers citation genesis Kentucky has its Court of authority, statute, case or for the “view” Appeals’ Havens, Benassi expressed: no award (1986), Ky.App., stating 710 S.W.2d 867 considering at all of the when modification joint custody legal that a award is the (4) arrangement. Nothing in subparagraph equivalent custody: of no can of suggests 403.270 that the KRS General regard then later be decided without Assembly considered to be statutory change custody. constraints on statutory “no at all.” There no award Havens, change Benassi v. mandate that statutes on Ap- the Court of peals apply holds: do not an award of change But it is this view that

“It is our view that when 403.270(3) (4) apply awarded under barriers did cus- KRS [now ] parties subsequently disagree, tody judge gives cases that as one neither 403.340 preference KRS nor KRS 403.350 of underlying the reasons applies.... matter, practical As a joint custody arrangement. for a custody is no award all at when consider The decision Benassi and ing modification arrangement.” go grain 403.340-.350, against the of KRS Id. at 869. as explained Quisenberry. purpose But award cus- statutory barriers to modification in tody 403.270, award under just give KRS 403.340 and .350 is to children same as is a sole award under this grow. stable in which environment That awarding joint same statute. decree cus- stability important is no less there is tody provide loophole does not to avoid joint custody than when one statutory the mandate KRS 403.340 and .350, covering custody modification of a agrees Dissent writer of this 403.340(2) whole- provides decree. KRS un- that heartedly it is desirable for a noncus- agreed less the to the modifi- parent continuing todial have as integrated cation or the child has much been into family parental petitioner relationship the con- possi- with the with his child as custodian, sent of the warring parents child’s ble. Between can changed shall 'proof: absent accomplished by providing best be full visi- “(c) rights present parent The child’s tation to the noncustodial in- environment endangers seriously mental, his physical, reasonably sofar possible. likelihood, a mistake to adhere to Benassi It is serious with liberal all its ramifi- have never considered disregard the relation- we visitation who would cations, properly de- much less whether ship only with his child because he has change of the statutes on cides whether rights, rather than custodial visitation apply. rights, will fail the child’s needs to fulfill If support any a for emotional event. criticizes Finally, Majority Opinion that a parent is so immature and so hostile cus Appeals’ Opinion joint on the Court of arrangement necessary be- Hardin, Ky.App., 711 tody in Hardin v. personal provide he will his child with fore (1986),and states endorse S.W.2d 863 “we contact, support, financial and emotional by the many expressed Court of the views proves him unsuited to very his attitude Chalupa, Ky. Chalupa Appeals carrying out a the task Hardin, (1992).” In App., 830 S.W.2d 391 arrangement. custo the Court reversed court be by rendered the trial dy award manufactures Benassi v. Havens enmity disagreement be cause of the permitting the trial custody into vehicle stating “joint tween deciding difficult cus- postpone court to the chil be in the best interests of cannot tody presented by quarreling question sufficiently dren where the are not exception, social science ents. Without coop enough to understanding and mature proves that subject data amassed on this arrangement. Petrilli’s erate in such an arrangement is a vehicle Law, (Supp. 26.86 Kentucky Family § quarreling peculiarly unsuited resolve 1985); Slyn, Kentucky & Divorce Revell indeed, child; counterproductive over a (1984)." 9.6§ the child to this end. The worst interest of than the interest of the rather best very similar to Chalupa had facts by fostering continuing instability served by the same present case and was decided arrangements. in the child’s custodial Appeals judges, panel of Court (Schroder split decision and Stum- the same post-decree proceedings The evidence of bo, JJ., custody, Hud- approving joint point. A present case illustrates the J., dleston, dissenting). Chalupa stands month after the decree the this Court should proposition for a quarreling over what back in trial court child’s approve: that it is best never day every time of the on other Christmas require “a trial court to consider interest to with appellee Eve the had to end visits first, preference ... child. Parents who cannot resolve this interest of the joint custody is in best simple hardly own can difference child, in a divorce....” even bitter responsibil- expected jointly to share triumph hope majority, in a Chalupa upbringing in ity to determine the child’s says a deci- experience, such over education, care, religious health matters encouraging “the sion deci- training, and similar fundamental stay on each other and to sions. their best behavior.” thought, giving the matter much Without we Chalupa wrong, Majority seems to have embraced Majority Opinion should disavow it. Our Appeals’ decision Benassi v. states: least, At assume so Havens. one would stop endorsing the we short of “While following quote on the from Ma- based custody, Chalupa preference Opinion: jority first,’ en- i.e. ‘consider we “It should not be overlooked that expressed there- many dorse of the views cooperation, achieve such the trial court in.” parties by means of its may assist the vague confuses rath- contempt power power modify and its This rather disclaimer “stop clarifies. While we state we in the event of a bad faith refus- er than ” first,’ Havens, al v. short of ... ‘consider Benassi expectancy Ky.App., (1986)[.]” by embracing as a realistic S.W.2d 867 “pie sky” philosophy expressed damage in emotional to children who will be Chalupa, encourage net result is to the noncombatant casualties in future trial courts “consider courtroom battles. result, this first.” If this case will be For benefit of children who must unmitigated disaster for children in consequences problems bear the to come. cases decision, by urge will be caused I A recent article in the Wall Street Jour- Assembly steps. to take General suitable 15, 1991, 81) (July p. quoted by Judge nal Joint should not be abolished as an of Appeals Huddleston his Court Dissent option, because there available are cases brings up-to-date in this us is, finding appropriate. where such a It impact joint custody. quote, part: We however, only proof that custody, “Joint once hailed as the ideal presently emotionally are ma- both child-rearing arrangement for divorced psychologically ture and suited to the task couples, coming psy- under fire from Further, sharing custody cooperatively. chologists, lawyers par- and embittered provide in order to the children of divorce a ents. grow, stable environment in which to so far possible so, humanly urge as to do I Mnookin, Robert Director of the Stan- Assembly repair the General the barri- Mediation, ford Center on Conflict and against change ers casual estab- a child-custody study conducted 403.340-.350, by lished but breached 1,100 California, says, families in ‘Where Appeals the decision the Court of fighting and remain locked Havens, supra, Benassi v. the lan- conflict, joint physical custody can like guage Opinion. carrying King out Solomon’s threat. apart psychologically.' can torn ... study of 700 divorce cases in

Cambridge by the Middlesex Divorce Re- Group

search couples found that with

joint legal custody were more than twice likely relitigate their child-care agreements couples with sole ASSOCIATION, KENTUCKY BAR Moreover, joint legal custody ‘makes Movant, no difference in terms the amount of kids,

parents’ qual- contact with their SULLIVAN, Respondent. A. ity of Sharon communication between compliance child-support rate No. 93-SC-055-KB. payments,’ says Mr. Stanford’s Mnookin. Kentucky. Supreme Court say joint custody Researchers hasn’t up to promise lived because most May 27, 1993. ents haven’t concept embraced the will- ingly.”

Judge Huddleston accepted what established,

social science studies have

applies hand, it to this case. On the other Majority Opinion from the Court of Court, our is more intuitive objective.

than

I fear for the future. I fear for the

children whom decrees will

force live relationships, unstable sub-

ject authority. to uncertain I fear for the

Case Details

Case Name: Squires v. Squires

Court Name: Kentucky Supreme Court

Date Published: Apr 22, 1993

Citation: 854 S.W.2d 765

Docket Number: 92-SC-289-DG

Court Abbreviation: Ky.