I do have a copy of the DRC's recommendation and the judges report sent back to him. It will be the same acting DRC reviewing. The DRC's original recommendation was completely one sided and did not coincide with Kentucky State Guidlines for deciding custody, noted below. He noted that we(my lawyer and I) cited exceptions to his report and since the DRC was the one that heard the testimony and the parties demeanor that he would send it back for his review. Basically he didnt say whether or not the DRC had made an incorrect or correct decision, but a positive was he would not sign off on it and sent it back for review. However difficult to seperate emotions from fact, I focus on the following. A quick review of Kentucky State Law from my ongoing research tells me two things... 1) With the circumstances of my case along with similar decisions made by KY Supreme Court decisions, our case meets the guidelines set forth for custody and best interests of my daughter. *Torrence vs. Connell - May 09'*. 2) We need to get this right the first time before it goes to the court of appeals, in which case, the trial court will set precidence... see following.
Kentucky Rules of Civil Procedure (CR) 52.01 provides that
"[f]indings of fact shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the credibility of the
witnesses." A judgment is not "clearly erroneous" if it is "supported by substantial
evidence[.]" Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414
(Ky. 1998). Substantial evidence is "evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
men." Id. (citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298,
308 (Ky. 1972)).
With that noted, to bring the rest of you up to speed on my particular states laws so that I may gain better feedback and advice.....
In determining how custody should be awarded between parents,
Kentucky Revised Statutes (KRS) 403.270 provides, in relevant part, that:
(2) The court shall determine custody in accordance with
the best interests of the child and equal consideration
shall be given to each parent and to any de facto
custodian. The court shall consider all relevant factors
including:
(a) The wishes of the child's parent or
parents, and any de facto custodian, as to his
custody;
(b) The wishes of the child as to his
custodian;
-3-
(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;
(e) The mental and physical health of all
individuals involved;
(f) Information, records, and evidence of
domestic violence as defined in KRS
403.720;
(g) The extent to which the child has been
cared for, nurtured, and supported by any de
facto custodian[.]’
Quoted terms from the Kentucky Supreme Court website above and mine and my lawyers review of them below that was presented in front of the hearing judge....
a: both parents wish for residential custodial status.
b: the child is 3 years old and will not be deemed appropriate age to have an opinion.
c: the child has a much stronger social support structure with her father as shown by witness testimony and pictures and related evidence. 24/7 daycare and support shown as well as the relationship between child and father several times over shown as the daughter being a "daddys girl". the same environment the child has always known, agreed upon and set forth by both parents during marraige maintained by the father. Only one witness came forth for the mothers side, whom also recognized the father as a "good dad".
d: the child has had multiple residential relocations with her mother, other men in and out of her life introduced by her mother, several different daycares. The father has maintained the same house, same daycare, same pediatrician present at birth.
e: mother has had a history of physical and mental illness, continuation of treament for such terminated due to failure to show up at scheduled appointments. repeated physcial stomach ailments that over the course of a year have still been difficult to diagnose and treat. (related to mental ailments??)
f: no domestic violence.
e: no defacto custodians.
Thanks for the continued support and advice......
