24 Aug August 7 Round Up

A lot to unpack in this week’s Round Up. One published case, but there are some unreported cases to remember as well. Without further ado, let’s get to it.

Corey Davis v. Sandra Davis, 2025-CA-0065

Some divorces end marriages; other couples just find new ways to fight.

In this Opinion originating in Madison County, the Kentucky Court of Appeals affirmed a decision to modify custody and child support. Corey and Sandy complained a lot about their kids. Clearly, things were less than perfect.

The original Davis v. Davis began with a 2017 agreement for joint custody and equal timesharing of three children. Six months later, the parties were back in court complaining about disparagement, interference at children’s events, and an inability to co-parent. What followed was years of motions, mediation, a GAL, a parenting coordinator, therapy, communication apps, no-contact orders, and enough relationship drama to keep Madison County Family Court busy for the better part of a decade.

By 2021, the Family Court had found Corey continually combative, uncooperative, and ineffective in communicating with Sandy. Still, the court maintained joint custody, giving Corey another chance while ordering intensive therapy and professional assistance with co-parenting.

It didn’t take.

Sandy returned in 2022 seeking sole custody, reduced timesharing, and child support. Her complaints included Corey’s continuing refusal to communicate, unilateral parenting decisions, questionable automobile and motorcycle practices, and his rapid introduction of yet another romantic partner into the children’s lives. Corey denied all allegations and countered that Sandy was simply controlling and unwilling to compromise.

The Family Court eventually awarded Sandy sole custody and reduced Corey’s school-year parenting time to alternating weekends plus one overnight each week. The findings were not flattering. Corey “chose conflict at every turn,” excluded Sandy from information about the children, made unilateral decisions, ignored basic communications, and repeatedly exposed the children to safety disputes.

Then there were the paramours. (Note: when a Family Court judge starts talking about paramours, it is a bad sign.)

The trial court found that Corey rapidly integrated successive girlfriends—and their children—into his children’s lives, followed by abrupt breakups, sometimes in front of the children. The children’s therapist reported that the constant changes were taking a toll. Corey also repeatedly violated orders limiting contact between the children and his romantic partners. The Family Court ultimately found that the children faced serious physical, mental, and emotional danger while the parents remained joint custodians.

In an unpublished Opinion by Judge Eckerle, the Court affirmed the decision. But the more interesting appellate issues involve procedure.

Corey argued that Sandy’s custody motion failed to comply with KRS 403.340 because the supporting affidavit did not adequately allege serious endangerment. Maybe so. But he waited ten months, through multiple case-management hearings, before raising the objection. Too late. Citing Masters v. Masters, the Court reminded practitioners that noncompliance with KRS 403.340 can be waived. Practice Pointer: If the other side files a defective custody-modification motion, don’t save the objection for trial. Procedural objections apparently do not improve with age.

Corey next argued that his parenting time had been improperly “restricted” without the necessary serious-endangerment finding under KRS 403.320(3). The Court wasn’t buying that one either. The Family Court had expressly found serious physical, mental, and emotional danger and explained the safety concerns associated with his parenting. It wasn’t required to repeat the statutory incantation in every section of its order. Once again, substance beat form.

And Corey’s argument that KRS 403.320 somehow protected his girlfriends from the no-contact provisions earned perhaps the Opinion’s best line. The statute protects parents and certain relatives; it does not encompass Father’s “steady stream of intermittent paramours.”

Finally, Corey attacked the child support motion because it did not strictly comply with KRS 403.213 and FCRPP 9(4). And on this point, he wasn’t entirely wrong. Sandy omitted the required worksheet and health-insurance verification. But the Court held that substantial compliance was enough. Sandy supplied the financial information actually in her possession. More importantly, Corey possessed the insurance information, and he could identify no prejudice caused by the missing paperwork. The purpose of the rule had been accomplished, so the defect did not require dismissal.

Unreported. http://opinions.kycourts.net/COA/2025-CA-000065.PDF

Faith Shawhan v. Tucker Parish, 2025-CA-0306

In this interesting case from Cumberland County Circuit Court, the Court of Appeals affirmed the decision of the trial court. The decision is unreported, but this is still one to watch, mark and remember.

Kentucky’s equal timesharing presumption remains alive and well. But Shawhan v. Parrish demonstrates just how far a trial court can depart from 50/50 once it finds the presumption rebutted.

Faith and Tucker have two very young children. After the parties separated, one child primarily lived with Tuck while the younger child remained with Faith. Tucker eventually sought custody and timesharing orders. Following an evidentiary hearing, the trial court awarded joint custody, named Tucker as the primary residential parent, and gave Faith a remarkably limited schedule—essentially eight hours per week, with no regular overnights.

The evidence was decidedly mixed. While dad had stable employment, housing with his grandparents, substantial family support, and had successfully cared for the older child, he was not without a checkered history. Tucker had a prior methamphetamine conviction and remained on probation, although he testified that he had been sober for about fifteen months. Faith was not a Mother of the Year candidate herself. She had unstable housing and employment, marijuana use, harassment convictions involving Father’s family, and an open CPS matter involving supervision of another child.

On appeal, Faith did not challenge the trial court’s factual findings. Instead, she argued that the court had misapplied KRS 403.270 by failing to begin with the statutory presumption favoring joint custody and equal parenting time.

In the majority opinion by Judge Jones, the Court of Appeals was not persuaded. Although the Family Court did not recite the statutory presumption at the beginning of its analysis, it ultimately found that Tucker had “overcome the presumption of 50/50 timesharing.” That was enough. The Court emphasized that judges need not employ “magic words or follow a prescribed script.” Substance, not form, controls.

And once the presumption is rebutted, the trial judge has considerable room to operate. KRS 403.270 requires a schedule that “maximizes” each parent’s time consistent with the child’s welfare, but the statute supplies no mathematical formula, minimum number of days, or required number of overnights. The majority acknowledged that Faith’s schedule was “unquestionably restrictive,” but held that it nevertheless fell within the range of reasonable outcomes supported by the evidence.

In her dissent, Judge Caldwell was having none of it.  [It is worth noting that Caldwell had years of family law experience prior to being elected to the court.]

Her dissent is ultimately the more interesting part of the opinion. Caldwell focused on the second half of KRS 403.270(2): if equal parenting time is not appropriate, the court “shall” construct a schedule maximizing each parent’s time consistent with the child’s welfare. Here, the trial court never explained why eight hours per week represented the maximum appropriate time for Mother.

Judge Caldwell also questioned reliance on the children’s young ages to overcome the equal timesharing presumption, noting that Kentucky abolished the old “tender years” preference decades ago. And she pointed out an uncomfortable feature of the result: Mother remained a joint custodian, yet received only eight hours per week without any finding that additional time would seriously endanger the children.

Round Up Takeaway

Shawhan v. Parish gives family courts considerable discretion to move substantially away from 50/50—even dramatically so—provided the findings support rebutting the statutory presumption. It also gives appellate lawyers a useful warning: arguing that the judge gave the evidence the wrong weight is a steep uphill climb.

Caldwell’s dissent identifies the issue worth bookmarking. “Equal timesharing” gets most of the attention in KRS 403.270(2); “maximizes the time” may prove to be the more interesting language in the next case. When a court drops a parent from presumptive 50/50 to eight hours a week, Shawhan says it can be affirmed. The dissent asks the harder question: Shouldn’t the court have to explain why eight hours really is the maximum?

To be published. http://opinions.kycourts.net/COA/2025-CA-000306.PDF

Michael Adams v. Tara Adams, 2025-CA-0846

In this unreported decision from Boone County Circuit Court, the Kentucky Court of Appeals affirmed a decision on custody and a wide variety of financial matters.

Michael and Tara’s divorce produced a little bit of everything: custody evaluations, supervised parenting time, a failed counseling practice, a suspended professional license, property valuation, alleged dissipation, hearsay complaints, and a $75,000 attorney-fee award. Michael had remarried only days after the bifurcated divorce decree; months later, his second wife filed for divorce, precipitating a mental-health crisis. Meanwhile, his counseling license was suspended for five years, partly because of a romantic relationship with a client, and his $288,884 counseling practice closed.

The Boone Family Court awarded Tara sole custody, continued Michael’s supervised parenting time, divided the marital estate, and ordered Michael to contribute toward Tara’s $185,000-plus attorney bill. The Court of Appeals affirmed across the board.

The most useful holding: temporary custody and parenting time orders remain interlocutory, even when they have governed the family for years. The eventual final judgement is an initial custody determination under KRS 403.270—not a modification requiring serious endangerment under KRS 403.340 or KRS 403.320. The court could also consider Michael’s coercive and controlling behavior without first making a formal domestic violence finding.

The Court likewise approved the agreed valuation of the business, the custody evaluator’s reliance on therapy records under KRE 703, and the substantial fee award based upon Michael’s litigation conduct. In short, this case covers several issues, some interesting facts, and no new frontier of family law. Mike and Tara will care deeply. The rest of us can skim.

Unreported. http://opinions.kycourts.net/COA/2025-CA-000846.PDF

Mandy Cox v. Harry Vinegar, 2025-CA-1067

In this case from Jefferson County Family Court, the Kentucky Court of Appeals reversed a contempt finding. The case in fascinating, even if it didn’t have one of the best names in recent memory. (Honestly, Harry Vinegar just sounds like a made-up name to the Round Up staff.) 

Every now and then, a case comes along that leaves the Round Up Editorial Staff scratching their heads. Cox v. Vinegar qualifies.

Harry Vinegar obtained an EPO against Mandy Cox on February 27, 2025. Cox was served on March 4. She failed to appear for the March 10 evidentiary hearing, and the Family Court entered a DVO against her. Simple enough.

Then things went sideways.

Vinegar alleged that Cox violated the DVO on March 31 and moved for contempt. There was one rather significant problem: Cox apparently had never been served with the DVO. Indeed, when she appeared for a later hearing and complained that she had received no paperwork, the court told her it would be “happy to have you served today.” That was May 19—almost two months after the alleged violation.

So the Family Court pivoted. Rather than find Cox guilty of violating the DVO—the order identified in the contempt motion—it sentenced her to 45 days in jail for violating the earlier EPO. The court reasoned that Cox unquestionably knew about that order because she had been served with it on March 4.

There was just one more problem.

The EPO didn’t exist anymore.

KRS 403.730(2)(a)4. provides that an EPO expires at the conclusion of the evidentiary hearing unless extended or withdrawn by subsequent court order. The hearing occurred March 10. The alleged violation occurred March 31. Thus, the order Cox was convicted of violating had expired three weeks before she violated it.

That made relatively quick work of the appeal. The Court of Appeals held that the expired EPO could not somehow be implicitly resurrected by the later contempt order. Citing Fedders v. Vogt-Kilmer, the Court vacated the contempt conviction and directed the Family Court to dismiss the contempt motion.

The Court was careful to add that it was not condoning Cox’s reportedly “disturbing acts of violence.” Fair enough. But that really isn’t the point. Criminal contempt resulted in a 45-day sentence, and fundamental due process requires that there actually be an enforceable court order in existence before someone can be jailed for violating it.

One other useful nugget: Cox apparently had already served her sentence by the time the appeal was decided. The Court nevertheless held that the appeal was not moot, relying on the collateral-consequences exception applicable to completed criminal-contempt sentences.

Protective orders are serious business. So is putting someone in jail.  This case should have never required an appeal. Nonetheless, kudos to the Kentucky Department of Advocacy for bringing it. (Now can anyone explain why the General Assembly is taking the DPA out of Family Court?!?)

Unreported. http://opinions.kycourts.net/COA/2025-CA-001067.PDF

Howard Gorbaty v. Melissa Persha, 2026-CA-0213

The Kentucky Court of Appeals quickly affirmed an IPO from McCracken County Family Court. Judge Karem wrote for the majority. In essence, Melissa claimed that Howie was stalking her. Howard did not have a good background. He had previously been convicted of harassing communications, and there was an “incident” in which he had previously fired gunshots at her and a companion.

Howard argued that the old incident—nine years prior to the new IPO—was too stale. He also argued that he only meant to shoot Melissa’s new friend, not her. That clarification did not improve his appellate prospects.

Judge Karem affirmed. Evidence supporting an earlier protective order may support a later one, and the prior appellate ruling established the shooting as law of the case. Gorbaty’s recent conduct, viewed against nine years of history, reasonably placed Persha in fear of serious injury or death.

Context matters.

Unreported. http://opinions.kycourts.net/COA/2026-CA-000213.PDF

J.C. and R.C. v. CHFS, Commonwealth of Kentucky, J.C., JR.; and B.C., 2026-CA-0080

Grandparents frequently ride to the rescue in DNA cases. But what happens when the rescue placement itself fails—twice?

In J.C. v. CHFS, grandparents had been awarded permanent custody of two young children after their parents became involved with the Cabinet. Less than a year later, the children were removed from the grandparents’ home amid reports of excessive trash, cockroaches, a loose black snake, bug bites, and a “putrid smell.” The grandparents cleaned things up, and the children were returned.

A year later, however, the children were removed again for concerns involving hygiene and the home environment. Initially, the Cabinet twice recommended returning the children to the grandparents within three months. By October 2025, though, the Cabinet had changed course and recommended changing the permanency goal from reunification to adoption.

The problem was no longer just a messy house.

One child suffered from diabetes insipidus, requiring careful medication management. Evidence showed that the grandparents had failed to regularly administer his medication or pick up refills. Within days of his removal and receipt of the proper medication, the child’s nighttime incontinence stopped. An unannounced home visit also showed continuing dirt and clutter. Meanwhile, Grandmother suffered significant health problems, required oxygen around the clock, and had allowed the children to handle and change her oxygen tanks despite warnings not to do so.

The Family Court had seen enough. It waived further reasonable efforts, changed the permanency goal to adoption, and found that the recurring home conditions, medical-management failures, developmental concerns, and Grandmother’s physical limitations demonstrated that the grandparents had not remedied the problems and were unlikely to do so within a reasonable time.

The Court of Appeals affirmed.

The grandparents first relied upon KRS 620.090(2) and Kentucky’s preference for relative placement. But the Court emphasized a fairly important qualifier: the preference is for a qualified relative. Once the Family Court determined these grandparents were not qualified, kinship did not dictate the result.

The grandparents also pointed to the Cabinet’s earlier recommendations favoring reunification. That argument went nowhere for two reasons. First, the Cabinet’s latest recommendations supported adoption. More importantly, the Family Court is not bound by the Cabinet’s recommendation anyway. Blindly following the Cabinet, the Court reminded us, would amount to an “abdication of the family court’s responsibilities.”

That language is worth saving.

The Court likewise rejected attempts to minimize the missed medical appointment or Grandmother’s health problems. The medical appointment was specifically designed to teach the grandparents how to manage the child’s serious condition, and evidence showed broader problems with obtaining and administering his medication. Grandmother’s health, meanwhile, was relevant not merely because she used oxygen but because there was evidence that her condition actually limited her ability to care for and supervise the children.

Round Up Takeaway

There is an important distinction here between being a relative and being a qualified relative. KRS 620.090 does not turn grandparents into the placement of last resort regardless of what happens after placement.

There is another practice point lurking in this case. Cabinet recommendations can change—and, even when they don’t, they aren’t orders. Family Court judges remain the decision-makers. Lawyers representing parents or relatives should therefore resist treating a favorable Cabinet recommendation as the finish line.

Perhaps the toughest lesson is reserved for grandparents who step into the breach after parents cannot care for their children. Taking permanent custody gets you across one finish line. It does not guarantee that the children stay there. When the placement itself becomes a source of neglect, “but we’re family” isn’t a permanency plan.

Unreported. http://opinions.kycourts.net/COA/2026-CA-000080.PDF

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Cover photo by our own John H. Helmers, Jr.