RENDERED: JULY 12, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-1015-MR
PERRY DEARFIELD, INTERVENING PETITIONER; AND MARQUETTA DEARFIELD, INTERVENING PETITIONER APPELLANTS
APPEAL FROM CARTER CIRCUIT COURT v. FAMILY COURT DIVISION HONORABLE JENIFFER B. NEICE, JUDGE ACTION NO. 16-CI-00101
MIKQUAN JOHNSON, INTERVENING RESPONDENT; WHITNEY DEARFIELD, INTERVENING RESPONDENT; AND COMMONWEALTH OF KENTUCKY, EX REL, MIKQUAN JOHNSON APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, EASTON, AND MCNEILL, JUDGES. EASTON, JUDGE: The Appellants, Marquetta and Perry Dearfield
(“Grandparents”), appeal from the Carter Family Court’s order, which granted
joint custody to Appellee, Mikquan Johnson (“Father”), and awarded him primary
physical possession of his son (“Child”). Grandparents had previously been named
de facto custodians and had primary possession of Child. Grandparents argue the
family court erred by modifying the custody order, by awarding physical custody
of Child to Father, and by failing to establish reasonable timesharing. Having
reviewed the record and the applicable law, we affirm the order of the Carter
Family Court.
FACTUAL AND PROCEDURAL HISTORY
Child was born in August 2012 to Father and Whitney Hayes (then
Whitney Dearfield) (“Mother”). Father was a college student at this time.
Grandparents are Mother’s parents. After the birth of Child, Grandparents
assumed the role of primary caregivers of Child. Mother and Child lived with
Grandparents for the first few years of Child’s life. Father was mostly uninvolved
in Child’s life during these early years. He moved out of Kentucky shortly after
Child was born.
In March 2016, Father filed a petition for custody, asking the family
court to grant him joint custody and timesharing with Child. In this action, Father
named only Mother as a Respondent. In April, Mother filed a motion for child
-2- support. In May 2016, a temporary order was entered, in which Mother was
granted sole custody, with Father to receive every other weekend visitation, for
four hours on Saturday and Sunday, to be supervised by Grandparents. Father was
also ordered to pay child support. In April 2017, a final order memorializing this
arrangement was entered.
In early 2018, Father filed a motion for change in custody, as Mother
and her husband were incarcerated. Father believed Child to be living with
Grandparents at this time. In March 2018, Grandparents intervened in the custody
action, and they asserted they were de facto custodians of Child. In July 2018, the
family court issued an order naming Grandparents de facto custodians. This order
also granted joint custody of Child to Mother and Grandparents. Father was to
have visitation with Child.
Father filed a motion to modify in July 2021. In said motion, he
requested additional visitation with Child, to increase gradually. Over
approximately the next year, Father was granted increased periods of visitation.
After a hearing in August 2022, the family court ordered that Father would receive
visitation for all of spring and fall break, half of summer break, every other
Christmas break, and every other Thanksgiving break.
In January 2023, Father again filed a motion to modify custody of
Child. He requested to be named as a joint custodian of Child. He also later filed
-3- a motion to modify primary possession of Child, after a DNA1 petition had been
filed against Mother. A temporary removal hearing was held in the juvenile
action2 in March 2023. At this hearing, custody of Child was removed from
Mother, and joint custody was granted to Father and Grandparents. During the
hearing, the family court interviewed Child in chambers. The family court did not
remove physical custody from Grandparents at this time.
A hearing on Father’s motions was held in April 2023. Father and
Grandmother testified. Mother did not appear at this hearing. Father testified his
relationship with Child was “great,” and he wanted to have primary custody of
Child. He testified Child has a loving relationship with Father’s family members.
Father spoke of his attempts and efforts to maintain a relationship with Child,
despite the Grandparents making it difficult to do so. Father stated he is employed,
he served in the military, he has never had any criminal or drug history, and he has
been putting forth every effort to maintain his relationship with Child. Father was
currently residing in Miami, Florida, although he intended to move to Virginia to
be closer to his family if he were granted primary possession of Child. This is also
a much closer distance to Grandparents.
1 An acronym for Dependency, Neglect, and Abuse. 2 The only part of the juvenile record provided for our review was the temporary removal hearing that took place on March 2, 2023. We were not provided with the DNA petition or any orders from that action. -4- Father believes it is not in Child’s best interest to remain with
Grandparents, nor does he believe Mother should have any custodial interest. He
alleged Mother is abusing drugs, and he was concerned that Grandparents were
allowing Mother to come to Grandparents’ home and be around Child. He
believes Mother bullies Grandparents into allowing her to come around, even when
she is under the influence. Father further testified that Child’s grades in school had
suffered.
Grandmother testified next. She stated there were three adults and
four children living in the home. In addition to Grandparents and Child, her father
(who was at that time bedridden) and Child’s three younger half siblings resided
with them. Grandmother acknowledged that Mother had been in the home. She
further conceded that there were times they believed her to be under the influence;
on those occasions, Grandparents asked her to leave. She spoke of one instance
where Grandfather had to threaten to call the police to get her to leave.
Grandmother also admitted they were not always able to tell when Mother was
under the influence.
Grandmother admitted they have not always stood up to Mother, but
she insists they have always protected Child. She also conceded Child’s grades
had declined. She believed it was because the math had gotten more difficult this
-5- year, and that Child was lazy and did not want to show his work when completing
assignments.
Grandmother believes she and Grandfather have been the only stable
influences in Child’s life. She stated his parents went about their own lives and
disregarded Child for years. She stated Grandparents were the only ones to put
Child’s interests first. She testified they were the ones who have raised Child.
When Child was born, Child and Mother lived with Grandparents, and Child has
had the same bedroom since he came home from the hospital after birth.
The family court issued an order on May 17, 2023. This order
granted joint custody to Father and Grandmother.3 It further granted primary
possession of Child to Father, beginning June 1, 2023, as the family court wanted
Child to finish the current school year. Grandparents were to receive timesharing
throughout July 2023. Beginning with summer break 2024, Grandparents were to
have timesharing from June 1 through July 15, as well as spring and fall break.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JULY 12, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-1015-MR
PERRY DEARFIELD, INTERVENING PETITIONER; AND MARQUETTA DEARFIELD, INTERVENING PETITIONER APPELLANTS
APPEAL FROM CARTER CIRCUIT COURT v. FAMILY COURT DIVISION HONORABLE JENIFFER B. NEICE, JUDGE ACTION NO. 16-CI-00101
MIKQUAN JOHNSON, INTERVENING RESPONDENT; WHITNEY DEARFIELD, INTERVENING RESPONDENT; AND COMMONWEALTH OF KENTUCKY, EX REL, MIKQUAN JOHNSON APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, EASTON, AND MCNEILL, JUDGES. EASTON, JUDGE: The Appellants, Marquetta and Perry Dearfield
(“Grandparents”), appeal from the Carter Family Court’s order, which granted
joint custody to Appellee, Mikquan Johnson (“Father”), and awarded him primary
physical possession of his son (“Child”). Grandparents had previously been named
de facto custodians and had primary possession of Child. Grandparents argue the
family court erred by modifying the custody order, by awarding physical custody
of Child to Father, and by failing to establish reasonable timesharing. Having
reviewed the record and the applicable law, we affirm the order of the Carter
Family Court.
FACTUAL AND PROCEDURAL HISTORY
Child was born in August 2012 to Father and Whitney Hayes (then
Whitney Dearfield) (“Mother”). Father was a college student at this time.
Grandparents are Mother’s parents. After the birth of Child, Grandparents
assumed the role of primary caregivers of Child. Mother and Child lived with
Grandparents for the first few years of Child’s life. Father was mostly uninvolved
in Child’s life during these early years. He moved out of Kentucky shortly after
Child was born.
In March 2016, Father filed a petition for custody, asking the family
court to grant him joint custody and timesharing with Child. In this action, Father
named only Mother as a Respondent. In April, Mother filed a motion for child
-2- support. In May 2016, a temporary order was entered, in which Mother was
granted sole custody, with Father to receive every other weekend visitation, for
four hours on Saturday and Sunday, to be supervised by Grandparents. Father was
also ordered to pay child support. In April 2017, a final order memorializing this
arrangement was entered.
In early 2018, Father filed a motion for change in custody, as Mother
and her husband were incarcerated. Father believed Child to be living with
Grandparents at this time. In March 2018, Grandparents intervened in the custody
action, and they asserted they were de facto custodians of Child. In July 2018, the
family court issued an order naming Grandparents de facto custodians. This order
also granted joint custody of Child to Mother and Grandparents. Father was to
have visitation with Child.
Father filed a motion to modify in July 2021. In said motion, he
requested additional visitation with Child, to increase gradually. Over
approximately the next year, Father was granted increased periods of visitation.
After a hearing in August 2022, the family court ordered that Father would receive
visitation for all of spring and fall break, half of summer break, every other
Christmas break, and every other Thanksgiving break.
In January 2023, Father again filed a motion to modify custody of
Child. He requested to be named as a joint custodian of Child. He also later filed
-3- a motion to modify primary possession of Child, after a DNA1 petition had been
filed against Mother. A temporary removal hearing was held in the juvenile
action2 in March 2023. At this hearing, custody of Child was removed from
Mother, and joint custody was granted to Father and Grandparents. During the
hearing, the family court interviewed Child in chambers. The family court did not
remove physical custody from Grandparents at this time.
A hearing on Father’s motions was held in April 2023. Father and
Grandmother testified. Mother did not appear at this hearing. Father testified his
relationship with Child was “great,” and he wanted to have primary custody of
Child. He testified Child has a loving relationship with Father’s family members.
Father spoke of his attempts and efforts to maintain a relationship with Child,
despite the Grandparents making it difficult to do so. Father stated he is employed,
he served in the military, he has never had any criminal or drug history, and he has
been putting forth every effort to maintain his relationship with Child. Father was
currently residing in Miami, Florida, although he intended to move to Virginia to
be closer to his family if he were granted primary possession of Child. This is also
a much closer distance to Grandparents.
1 An acronym for Dependency, Neglect, and Abuse. 2 The only part of the juvenile record provided for our review was the temporary removal hearing that took place on March 2, 2023. We were not provided with the DNA petition or any orders from that action. -4- Father believes it is not in Child’s best interest to remain with
Grandparents, nor does he believe Mother should have any custodial interest. He
alleged Mother is abusing drugs, and he was concerned that Grandparents were
allowing Mother to come to Grandparents’ home and be around Child. He
believes Mother bullies Grandparents into allowing her to come around, even when
she is under the influence. Father further testified that Child’s grades in school had
suffered.
Grandmother testified next. She stated there were three adults and
four children living in the home. In addition to Grandparents and Child, her father
(who was at that time bedridden) and Child’s three younger half siblings resided
with them. Grandmother acknowledged that Mother had been in the home. She
further conceded that there were times they believed her to be under the influence;
on those occasions, Grandparents asked her to leave. She spoke of one instance
where Grandfather had to threaten to call the police to get her to leave.
Grandmother also admitted they were not always able to tell when Mother was
under the influence.
Grandmother admitted they have not always stood up to Mother, but
she insists they have always protected Child. She also conceded Child’s grades
had declined. She believed it was because the math had gotten more difficult this
-5- year, and that Child was lazy and did not want to show his work when completing
assignments.
Grandmother believes she and Grandfather have been the only stable
influences in Child’s life. She stated his parents went about their own lives and
disregarded Child for years. She stated Grandparents were the only ones to put
Child’s interests first. She testified they were the ones who have raised Child.
When Child was born, Child and Mother lived with Grandparents, and Child has
had the same bedroom since he came home from the hospital after birth.
The family court issued an order on May 17, 2023. This order
granted joint custody to Father and Grandmother.3 It further granted primary
possession of Child to Father, beginning June 1, 2023, as the family court wanted
Child to finish the current school year. Grandparents were to receive timesharing
throughout July 2023. Beginning with summer break 2024, Grandparents were to
have timesharing from June 1 through July 15, as well as spring and fall break.
They were also to have visits with Child any weekend they were willing to travel
to where Father lives.
3 Although Grandparents mention the exclusion of Grandfather from the joint custody determination in their brief, this unexplained change was not specifically an issue raised for the appeal. Grandfather did not testify at the latest hearings at which the change of custody was addressed. We will not speculate on the reason for this change, noting only that we have considered the position of both Grandparents and do not find any abuse of discretion in limiting joint custody to Grandmother and Father in the circumstances presented in this case, which may benefit from communication between two designated persons. -6- Grandparents filed a motion to Alter, Amend, or Vacate. At a hearing
in May 2023, the family court appointed a Friend of the Court (“FOC”). It also
amended the previous order in that Father would have timesharing with Child from
June 1 to July 19, which was the next scheduled court date.
The FOC filed a report in mid-July 2023. The report outlined some
concerns the FOC had about Child remaining with Grandparents, due to Mother
living just down the street from Grandparents. Mother will randomly show up at
the home while under the influence and demand money from Grandparents. Child
also reported other concerning behavior to the FOC. The FOC reported Child does
not want to change schools, and he misses his Grandparents when he is with
Father. However, Child did state he wanted to spend more time with Father. The
FOC ultimately could not recommend that Child remain with Grandparents due to
the situation with Mother.
A final hearing was held on July 19, 2023. The family court
interviewed Child in chambers. Child reported that his time with Father had gone
“pretty good.” He testified to the structure he has at Father’s house, what rules he
must follow, and what types of activities they do together. Child reported he
would rather stay in Kentucky, but he would be “okay with either decision.”
Grandmother, Mother, and Father testified at this hearing. Father
spoke about Child’s growth since he came to live with Father. He testified Child
-7- has “stepped out of his shell.” Father stated he and Child have worked on
discussing his feelings and thoughts, because Child was accustomed to “holding
everything in.” They have started counseling together, which Father believes has
been beneficial to both.
The family court modified its May order with respect to the 2023
summer break. It ordered Grandparents would have timesharing from the date of
the hearing until August 13, 2023. The court ordered its previous order would
stand for the remainder of the terms. Grandparents then filed this appeal.
STANDARD OF REVIEW
Appellate review of custody awards is for abuse of discretion. Gertler
v. Gertler, 303 S.W.3d 131, 133 (Ky. App. 2010). Abuse of discretion occurs
when a ruling is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
We are allowed to set aside the trial court’s factual findings only if
they are clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Findings of fact are clearly erroneous when they are not supported by substantial
evidence. Id. “[S]ubstantial evidence is [e]vidence that a reasonable mind would
accept as adequate to support a conclusion and evidence that, when taken alone or
in the light of all the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men.” Id. (internal quotation marks and
-8- footnotes omitted). “[M]ere doubt as to the correctness of [a] finding [will] not
justify [its] reversal, and appellate courts should not disturb trial court findings that
are supported by substantial evidence.” Vinson v. Sorrell, 136 S.W.3d 465, 470
(Ky. 2004) (internal quotation marks and citations omitted). Due regard must be
given when the trial court assesses witness credibility. CR4 52.01.
ANALYSIS
Grandparents raise several issues in this appeal. First, they argue the
family court erred as a matter of law in modifying the custody order because it
failed to consider KRS5 403.340. Next, Grandparents argue the family court
abused its discretion in awarding primary possession of Child to Father. Finally,
they argue its timesharing award to Grandparents was an abuse of discretion.
KRS 403.340 is the controlling statute regarding modification of
custody, and it states:
(3) . . . [T]he court shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. When determining if a change has occurred and whether a modification of custody is in the best interests of the child, the court shall consider the following:
4 Kentucky Rules of Civil Procedure. 5 Kentucky Revised Statutes. -9- (a) Whether the custodian agrees to the modification;
(b) Whether the child has been integrated into the family of the petitioner with consent of the custodian;
(c) The factors set forth in KRS 403.270(2) to determine the best interests of the child;
(d) Whether the child’s present environment endangers seriously his physical, mental, moral, or emotional health;
(e) Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him; and
(f) Whether the custodian has placed the child with a de facto custodian.
Grandparents first claim that the family court erred because it failed to
consider this statute at all. They claim the family court did not base its analysis
upon any change of circumstances as required. We disagree.
While the family court’s order did not specifically reference KRS
403.340 or its factors, it is clear from reviewing the order that the court did in fact
find a change of circumstances in which it believed modification of custody was in
Child’s best interest. Father sought only a change of timesharing and did not ask
for a change of joint custody. But the family court actually changed custody with
the removal of the Grandfather as a joint custodian.
The family court made findings of fact that Mother had an addiction
that had subjected Child to a risk of harm. There was evidence presented that -10- Mother lived very close to Grandparents, and that Mother would regularly show up
at Grandparents’ home while under the influence. Grandmother admitted in her
testimony, which was referenced in the family court’s findings, that Mother had
bullied Grandparents and that they sometimes had trouble standing up to her. The
family court further found that Grandparents were under a lot of stress due to
taking care of four of their grandchildren and Grandmother’s terminally ill father.
The family court also referenced that Child’s grades had been suffering recently.
These are all changes in Child’s and Grandparents’ circumstances for the family
court to consider. All these factual findings were supported by the evidence
presented.
Father argues that Grandparents’ allegation of error on this point is
unpreserved, as they did not contest the granting of joint custody to Father and
Grandparents in the juvenile action. He argues that because of this, the only
standard the family court had to apply was the “best interest of the child” standard
of KRS 403.270; he claims it did not have to find a change of circumstance under
KRS 403.340. Father is correct in that no one challenged the designation of joint
custody from the juvenile action, and therefore it was the custody order in place at
the time of the final hearing. Regardless, the evidence is sufficient to support the
family court’s findings and conclusions if KRS 403.340 had applied. KRS
403.270 was also not the proper standard, as this was not an initial custody order.
-11- This leads us to Grandparents’ next argument. They claim it was
error for the family court to grant primary possession of Child to Father. They
claim there was not substantial evidence to support the conclusion that residing
primarily with Father is in Child’s best interest. Again, we disagree.
Because this ultimately was a modification of visitation or
timesharing, KRS 403.320 applies. “Under KRS 403.270, an initial determination
of custody requires consideration of the best interests of the child, with a rebuttable
presumption that joint custody and equal parenting time is in the child’s best
interests. A modification of visitation or timesharing, governed by KRS 403.320,
on the other hand, requires that the change be in the best interests of the child,
unless the modification is ‘less than reasonable,’ in which case the physical,
mental, moral, or emotional health of the child must be seriously endangered.”
Layman v. Bohanon, 599 S.W.3d 423, 430 (Ky. 2020). This statute merely
requires the family court to find that modification of timesharing, or in this case, a
change in designation of the primary residential custodian, is in the best interest of
the child.
Again, while the family court in its order did not explicitly reference
the statute, it did make factual findings to support the conclusion that living with
Father was in Child’s best interest. While not dispositive, it should be noted that
the appointed FOC in this case recommended that Child reside with Father. See
-12- Greene v. Boyd, 603 S.W.3d 231, 235-37 (Ky. 2020). The FOC had major
concerns about Mother’s proximity to Grandparents and her tendency to come to
Grandparents’ home under the influence. The FOC reported that Child has
witnessed some concerning behavior during these instances. The family court also
noted an improvement in the Child’s appearance and demeanor after his initial
extended visit with Father. We do not believe based on the facts and
circumstances of this case that the family court abused its discretion in its ruling.
“The question before this Court is not whether we would have reached a different
decision, but rather, whether the findings of the family court are clearly erroneous,
whether it applied the correct law, or whether it abused its discretion.” Berzansky
v. Parrish, 583 S.W.3d 6, 7 (Ky. App. 2019).
Grandparents’ final contention of error is that the family court did not
grant them reasonable timesharing with Child. Grandparents claim in their brief
that “[i]t was an abuse of discretion for the Honorable Trial Court to limit sharing
to basically four weeks in the summer.”6
Grandparents claim that they are only receiving visitation “four weeks
in the summer” isn’t entirely accurate. The actual substance of the order grants
Grandparents June 1 through July 15, beginning with summer break in 2024. They
will also receive the entirety of spring break and fall break. Additionally, they may
6 Appellant Brief, page 17. -13- visit with Child any weekend in which they travel to where Father and Child
reside.
“What constitutes ‘reasonable visitation’ is a matter which must be
decided based upon the circumstances of each parent and the children, rather than
any set formula. When the trial court decides to award joint custody, an
individualized determination of reasonable visitation is even more important. A
joint custody award envisions shared decision-making and extensive parental
involvement in the child’s upbringing, and in general serves the child’s best
interest.” Drury v. Drury, 32 S.W.3d 521, 524 (Ky. App. 2000). In this case,
Grandparents and Father live in two different states, many hours apart. It is
unrealistic that equal timesharing could be possible. With Child being in school, it
appears the family court did what it could do to give Grandparents reasonable
visitation with Child. See Hudson v. Cole, 463 S.W.3d 346 (Ky. App. 2015).
We have sympathy for Grandparents. There is no doubt that
Grandparents love Child dearly, and they have cared for him for most of his young
life. However, Father has never been found to be unfit, and he has made
substantial (if not belatedly commenced) efforts to be a good parent to Child. We
cannot say under the facts of this case that the family court abused its discretion.
CONCLUSION
The family court’s findings of fact are supported by the evidence and
-14- are not clearly erroneous. Because the family court did not abuse its discretion in
its award of joint custody and granting Father primary possession, we AFFIRM the
order of the Carter Family Court.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE MIKQUAN JOHNSON: Robert W. Miller Grayson, Kentucky Brandon M. Music Grayson, Kentucky
-15-