in between DRC recommendation and judges decision, good dad needs help.

[DrewW]

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......

[snowrose]

I'm very sorry to say that to my knowledge KY is known for siding with the mother, almost blindly. 

As you've been living 50/50 for 9 months, you might ask the court to continue the current arrangement.  Courts tend to go for the status quo and, IMO, you have a better chance of keeping that then going for broke and possibly losing your current 50/50 with your daughter.

[DrewW]

Maybe so, maybe not.  The law is on our side if practiced, I refuse to give up fighting for what I feel is her best interests, simply because the law has not always been followed as written.  The Torrence vs. Connell case decided by the Kentucky Supreme Court has very very similar circumstances to my own and the father won out with a female child.  As far as 50/50, her mother plans on starting her in school immediately against my wishes(still 3 yrs old), which would put me in a default limited access situation as she moved back to the maternal grandparents area an hour and fifteen minutes away.  However Im not sure how living in one place, going to school an hour away on one side, finally getting a job but it being an hour and a half away on the other side, and having another new male whos been around my daughter who lives here in my county in another hour and a half forming triangle around her newest residence, can be beneficial or where that leaves my child during all that back and forth?  A judge will have to see the contrast.  The laws are out there and in place, we'll pray for checks and balances in the system to work for now.  Half Glass Full. 

[snowrose]

As far as 50/50, her mother plans on starting her in school immediately against my wishes(still 3 yrs old), which would put me in a default limited access situation as she moved back to the maternal grandparents area an hour and fifteen minutes away.  However Im not sure how living in one place, going to school an hour away on one side, finally getting a job but it being an hour and a half away on the other side, and having another new male whos been around my daughter who lives here in my county in another hour and a half forming triangle around her newest residence, can be beneficial or where that leaves my child during all that back and forth?  A judge will have to see the contrast.  The laws are out there and in place, we'll pray for checks and balances in the system to work for now.  Half Glass Full. 

A judge often won't fault a BM for having a relationship with someone.  They may not like it but they will accept it.  For us, it was accepted here that BM moved a guy in with her and SDthen5 after only knowing him 2 weeks.  That didn't even get a second glance from the judge. 

Then we brought in a Child Advocate who monitored both homes.  DH had been SD's primary caregiver most of SD's life and BM's home was found to be sorely lacking.  She didn't work with SD in school.  She didn't bathe SD a reasonable amount of time or clip her nails.  She allowed the child to abuse her puppy and let her play outside after dark.  We even had reports of the BF threatening to tear off the head of the child's toys.  All that got us was a recommendation of 50/50 custody - until the day the BF hit SD in the head and poked her in the eye, and then threw BM and SD out of the apartment.  Things had to go that far before we finally (with the help of CPS involvement) got enough on BM to swing things to our having full custody. 

The one thing I can suggest to you if you feel you have enough against BM to swing things your way: document, document, document!!!  We have some 80 pages of files on things that have happened - including statements by other witnesses - and 60 pages of them happened before we got custody.

I'm not sure what to thing about "school" for a 3 year old.  Usually at that age it's just a specialized daycare.  Check the qualifications and program of the "school" she'll be going to.  Could be that you could get an equivalent provider in your area for when you have custody of your daughter.

Good luck!

[DrewW]

So my glass is a little less full today.  The DRC sent back his re-review of his previous recommendation.  He kept his original opinion and only slightly modified the visitation schedule to allow for a little more time during the summers.  It still has to go before the judge again, but even my lawyer has all but thrown in the towel and said it would be a waste of time to file another exceptions report after the DRC is saying he is going to stick with his recommendation.  This is about as dark as its got during all this for me.  I've got an old ways hard headed DRC whos been sending kids to their moms regardless his whole career, a lawyer whos lost his will to fight this case not to mention his bills that I am drowing in, and the only hope I've got is that a judge will see past historical norms and find whats best for my daughter even if it contradicts a guy he works with everyday.  I dont give a damn about my ex-wifes gloating and I told you so's or the lawyer bills or putting everything in my life on hold for a year and a half during this or the embarrassment of going through all this and losing or any of that stupid b.s..  I care about letting my daughter down, I care about not being a strong enough man to pull this out for her, I care about her life being less than it should be and our relationship being less than it should be, I care about her.  She is the best thing to ever happen to me and she is my purpose in life.  Shes the reason I wont give up.  Im still going to fight.  Please say a prayer for us.   

[DrewW]

If the DRC's recommendation was flawed once and had to be sent back for review, is there a chance that a judge will find it flawed again?  Couldnt the judge have made the minor visitation adjustments himself without going through all this again?  Thats the main one thats eating at me and making me believe the judge disagrees with the guy.  How often does a judge make a decision contray to his DRC??

[snowrose]

This is about as dark as its got during all this for me.  I've got an old ways hard headed DRC whos been sending kids to their moms regardless his whole career, a lawyer whos lost his will to fight this case not to mention his bills that I am drowing in, and the only hope I've got is that a judge will see past historical norms and find whats best for my daughter even if it contradicts a guy he works with everyday.  I dont give a damn about my ex-wifes gloating and I told you so's or the lawyer bills or putting everything in my life on hold for a year and a half during this or the embarrassment of going through all this and losing or any of that stupid b.s..  I care about letting my daughter down, I care about not being a strong enough man to pull this out for her, I care about her life being less than it should be and our relationship being less than it should be, I care about her.  She is the best thing to ever happen to me and she is my purpose in life.  Shes the reason I wont give up.  Im still going to fight.  Please say a prayer for us.   

Drew, I'll tell you the same thing that DH's lawyer told us when our recommendation was 50/50, even though BM was neglecting SD and the BF was verbally abusing SD.  He said, "You need to see this as the first step.  We're closer than we were."

For us, the entire process destabilized BM and her BF so much that they imploded and the strategic errors they made in their craziness gave us custody.  Keep your eyes open and document, document, document.  No telling where BM may slip up and give you a new opening.

BTW, if you love your daughter and spend quality time with her when she has visitation, there's no reason why your relationship should be less than it should be.  IMO.  Heaven knows, the time that DH spent with SD for a few years didn't lessen or damage the love they had for each other.

[DrewW]

Well lifes got its shares of ups and downs for sure.  Some things are beyond my knowledge and ability to understand.  A few days ago I listened to a close friends advice and dropped my anger and my wall I had built up and Im giving it to God to do with as he pleases.  I think I had been struggling against him for some time with all this and my anger took away my trust that he's got the right plan for me and my daughter and despite all these hurtful turmoils theres a more important plan for each of us that will unfold.  Doing that doesnt take away my will to fight for what is right for my child, it just puts my trust and burdens on a stronger set of shoulders.  I contacted a realtor to list my house(pre-marraige purchase), made plans to put all my stuff in a storage center, and move in with my father so that I could dig in for the fight to come with appeals and put every cent I can towards my lawyer and this case.  Well wouldnt you know it... somebody came along and poured a little more water back into my glass for me.  The judge did not immediately overrule my exceptions report as my lawyer thought would happen, he didnt just change the visitation to my days off work as he could have, we are getting another shot in front of the judge for oral arguments.  This makes times 2 for this.  I have been trying this whole time just to get a fair shot, no unfair advantages, just a fair shot at this case and what is really best for my daughter.  I dont know what if anything will come of it, but its a whole lot better day than when I woke up this morning.  One more big push.  Please keep my family in your prayers.
                          D.

[Kitty C.]

Wow, Drew.............

I think you've found what true forgiveness is all about!  And I think you absolutely have your mind and heart in the right place now, too.  I will certainly be praying for you and your family.

Many years ago, I had an eye that turned in.  HS was torture for me (it's been 30 years and I haven't been to a reunion yet), but while in CA and thru a certain set of circumstances, I was able to get the surgery I needed to correct it. The next summer, while visiting my parents, I sat them down and told them how I felt about it....that I did not blame them for not being able to do for me what strangers (to them) were able to do.  I told them that I truely felt God had bigger plans for me, that He needed me to go thru all that crap to learn to be strong because He obviously has big plans for me.  I told them I had no idea what that would be, but because of all the crap I had gone thru, I knew I would be able to handle it.

A year later, DS was born and a few years after that, we were in the middle of an interstate custody dispute and all that strength that I had built up came in very handy!  So you never know where life may take you, but if you put your trust in a higher power to help you carry the load, your outlook is completely different!

[DrewW]

I am sorry to report the court system in Kentucky failed. 

The judge was not willing to overturn his DRC's recommendation, only slightly modified visitation.
A year and a half of our lives and tens of thousands of dollars, and we successfully went through "the legal motions" without ending up with a legal outcome.

I kept and showed "in measurable ways".  I cannot help my gender.  My daughter never cared about it, why should anyone else?  No historical/social norms, I am just "Daddy" to her.

Nobdody is saying on either side that I dont have more to offer my daughter right now, a better more stable environment, etc etc. 
Nobody has even been able to say why or support this decision in words, only that this is going to be the way that it is.

The right laws are out there, but if they are simply just not practiced, what is their purpose?

Most importantly, where do i turn next??