Moore v. Moore

577 S.W.2d 613, 1979 Ky. LEXIS 219

• Court: Kentucky Supreme Court
• Decided: January 16, 1979
• Status: Published

Opinions

STEPHENSON, Justice.

In a divorce proceeding the trial court awarded custody of the parties’ five-year-old daughter to the father, movant. The Court of Appeals reversed the trial court. We granted discretionary review and affirm the judgment of the Court of Appeals.

The record on the custody proceedings is replete with evidence concerning both parties’ romantic conduct, especially that of the respondent. The only evidence argued by the parties is testimony admitted over the objection of the respondent concerning a trip out of the state with a married man. The respondent admitted to sexual intercourse during this trip of several days. There is nothing in the record to suggest this conduct in any way affected the respondent’s relationship with the child or that the child was aware of this illicit relationship.

It is apparent from the record that this conduct of the respondent was the principal factor in the decision of the trial court awarding the custody to the movant.

As observed by the Court of Appeals, the record established that both parties were equally fit to have custody of the daughter if the evidence of this instance of illicit sexual behavior is excluded.

We agree with the Court of Appeals that the judgment of the trial court should be reversed.

KRS 403.270 provides:

“(1) The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(a) The wishes of the child’s parent or parents as to his custody;

(b) The wishes of the child as to his custodian;

(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;

(d) The child’s adjustment to his home, school, and community; and

(e) The mental and physical health of all individuals involved.

“(2) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.”

The commissioners’ note to this section (402) of the Uniform Marriage and Divorce Act, adopted by the General Assembly in KRS 403.270, comments on (2) as follows:

“The last sentence of the section changes the law in those states which continue to use fault notions in custody adjudication. There is no reason to encourage parties to spy on each other in order to discover marital (most commonly, sexual) misconduct for use in a custody contest. This provision makes it clear that unless a contestant is able to prove that the parent’s behavior in fact affects his relationship to the child (a standard which could seldom be met if the parent’s behavior has been circumspect or unknown to the child), evidence of such behavior is irrelevant.”

The only conclusion to be drawn from KRS 403.270(2) when read with the note of the commissioners is that there must be proof that the sexual misconduct affects the relationship of the parent to the child; otherwise, the evidence of such misconduct is irrelevant and should not be admitted into evidence. Here there is no showing or even a suggestion that the child was aware of respondent’s misconduct or that the relationship of the child and the respondent was in any way affected by this incident.

The testimony should have been excluded, and without this testimony the parties are in substantially equal positions with regard to fitness to have custody of the child. In this situation, the natural preference for the mother is in the best interest of the child. Casale v. Casale, Ky., 549 S.W.2d 805 (1977).

This disposition is simply following the legislative mandate as expressed in KRS 403.270.

The judgment of the Court of Appeals is affirmed.

Full court sitting. CLAYTON, LUKOW-SKY, REED, and STEPHENSON, JJ., concur. STERNBERG, J., files a dissent in which PALMORE, C. J., and AKER, J., join.