Squires v. Squires

854 S.W.2d 765, 1993 Ky. LEXIS 71, 1993 WL 124733
CourtKentucky Supreme Court
DecidedApril 22, 1993
Docket92-SC-289-DG
StatusPublished
Cited by24 cases

This text of 854 S.W.2d 765 (Squires v. Squires) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Squires v. Squires, 854 S.W.2d 765, 1993 Ky. LEXIS 71, 1993 WL 124733 (Ky. 1993).

Opinions

LAMBERT, Justice.

This Court granted discretionary review to address the proper construction and application of KRS 403.270(4).1 With its 1980 enactment of the foregoing statute, the General Assembly expressly declared the right of trial courts to grant joint custody to the parents of a child with the only standard being “best interest.” Heretofore this Court has not provided any guidance to trial courts in exercise of their broad discretion. As the appropriate use of joint custody is the subject of considerable debate and there appears to be little uniformity among the trial courts of Kentucky in its application, we took review of this case as it contains the elements of the classic dilemma.

[767]*767Of the parties’ four-month marital cohabitation was born a son. Upon commencement of proceedings to dissolve the marriage and the appearance of a dispute over child custody, inter alia, the case was assigned to the Domestic Relations Commissioner who heard extensive testimony and rendered proposed findings of fact and conclusions of law. The Commissioner found that both parties would be good parents who would place the interest of their child first. This, he believed, made them likely candidates for joint custody. However, he also found that the parties were not sufficiently cooperative to accommodate joint custody and recommended that it not be granted. On exceptions to the Commissioner’s report, the trial court acknowledged the hostility between the parties, but concluded that this alone did not prevent an award of joint custody. The court emphasized that the parties were “good parents” and in reliance on its “policy” to grant joint custody and the statutory standard of the child’s best interest, determined that the benefits of joint custody outweighed the detriments. The court also recognized the availability of subsequent custody litigation when joint custody has been granted, and the extreme difficulty of such litigation when sole custody has been granted. Upon the foregoing, judgment was entered granting the parties joint custody.

A divided panel of the Court of Appeals affirmed the trial court. The majority emphasized the positive aspects of joint custody such as shared decision-making, parental involvement in child rearing and encouragement of parental cooperation. It also noted the availability of subsequent litigation if joint custody proved to be unworkable. The dissenting opinion expressed the view that prior to an award of joint custody, the court must be satisfied that the parties possess sufficient maturity to suppress their enmity toward one another and avoid having their personal animosity destabilize the upbringing of the child.

Appellant contends that “overwhelming evidence of discord and lack of cooperation between the parties” renders the judgment awarding joint custody clearly erroneous when measured against the best interest standard. For this contention she relies upon various scholarly articles and decisions from other jurisdictions which appear to support the view that without substantial parental cooperation, joint custody is undesirable.2 She concludes that “joint custody demands ideal circumstances and exceptional parents to succeed at all. Even with highly committed and motivated parents, joint custody is not for all children.” Appellant asks this Court to set standards for trial courts for the exercise of their discretion with respect to joint custody and, in effect, suggests that in the absence of an agreement by the parties, joint custody should not be awarded, and even then, the trial court should be satisfied that the agreement was not procured improperly and that it is appropriate in the circumstances.

Appellee relies upon the statute and points to the absence of any statutory requirement that the parties agree upon joint custody. He relies upon the trial court’s broad discretion and observes that if cooperation is declared a prerequisite for joint custody, any party may defeat it by a bad faith refusal to cooperate. He suggests the proper standard is whether the trial court believes from the evidence there is a reasonable likelihood of future cooperation which will redound to the child’s best interest.

From the foregoing facts and arguments, the issue which emerges is whether parties who are found to be good parents who will endeavor to place the interest of their child uppermost should be denied joint [768]*768custody due to their hostility and refusal to cooperate with one another.

At the outset, we must consult the statute. A cursory examination of KRS 403.270 manifests the overriding consideration that any custody determination be in the best interest of the child. It is equally clear that neither parent is the preferred custodian and the parents’ wishes, while appropriate for consideration, are not binding on the trial court. While the focus of this case is on joint custody as authorized in section (4) of KRS 403.270, the decision to grant or deny joint custody cannot be determined without reference to the entire Act. As such, the broad array of factors contained in the Act must be considered appropriately prior to a determination of joint custody or sole custody.

We begin with the assumption that it would be in a child’s best interest to be reared by two parents who are married to each other. See KRS 405.020. With the occurrence of divorce, however, such a circumstance is not possible and trial courts are faced with the task of formulating a custody arrangement which will as nearly as possible replicate the ideal and minimize disruption of the life of the child. As such, and prior to any particularized assessment of the parents and child, joint custody would appear to be the best available solution. In theory, the child would continue to be reared by both parents and have the benefit of shared decision-making with respect to important matters, with neither parent being designated as the primary custodian and the other relegated to a secondary status. Clearly, it was this ideal which motivated the General Assembly to declare that trial courts may grant joint custody, but place it within the context of the entire custody statute, KRS 403.270, and limit it by the best interest test.

It is now widely recognized that in many cases, embittered former spouses are unwilling to put aside their animosity and cooperate toward their child’s best interest. Often joint custody merely prolongs familial conflict and provides vindictive parties with a convenient weapon to use against one another. Of course, the same is true of a custody and visitation arrangement. As such, some contend that it is better to have a clean break between spouses and award one or the other sole custody to bring about the child’s most rapid adjustment to post-divorce circumstances. While the logic of this position is not unappealing, if it were fully applied, the role of the noncustodial parent would be diminished to a point of insignificance.

Even if this Court were so inclined, it is not our prerogative to eradicate the concept of joint custody from the law of Kentucky.

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Cite This Page — Counsel Stack

Bluebook (online)
854 S.W.2d 765, 1993 Ky. LEXIS 71, 1993 WL 124733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/squires-v-squires-ky-1993.