04 Apr Family Court Injustices in the Court of Appeals Round Up
The Kentucky Court of Appeals issued three opinions last week, March 25-29. All of them are worth reading and bookmarking – but not because the Opinions are correct. The first conflicts with a recent ruling from the Supremes. The others are just sloppy. Collectively, the Round Up believes that they serve as a warning of the injustice that can happen in family law.
Justin Aldava v. Alyssa Baum, 2023-CA-1038
The Court of Appeals addressed jurisdiction in a DVO case arising from Jefferson County Family Court. In this case, Judge Acree ruled that Kentucky did not have jurisdiction over a DV incident that allegedly occurred in Texas. Alyssa had fled from Justin and Texas due to the alleged domestic violence and filed for an EPO in Jefferson County, KY. The Opinion discusses personal jurisdiction, waiver, constitutional rights, and whatnot. Most interestingly, this Opinion conflicts with one from the KY Supreme Court earlier this month, in which the Supremes ruled that the state had jurisdiction over the parties and the child based on the fact that there was emergency jurisdiction. In other words, the EPO lacked personal jurisdiction, but was still enough to warrant custody jurisdiction through UCCJEA forever. Go figure. Reported. http://opinions.kycourts.net/COA/2023-CA-001038.PDF
Hany Basta v. Elena Kosulina, 2023-CA-0456
In an appeal from Kenton County Family Court, a father, Hany, appeals from a finding of contempt. The primary argument was that Hany could not be called as a witness in a contempt of court proceeding against him. He and his lawyer claimed that doing so violated his Fifth Amendment rights. The Family Court ruled against him. And the Court of Appeals affirmed. [Note: the Round-Up believes that both courts botched this one. The judges should have referenced Akers v. Fuller, 228 S.W.29, a case from KY that says that the Commonwealth’s rule of immunity extends to both civil and criminal cases.] Unreported. http://opinions.kycourts.net/COA/2023-CA-000456.PDF
J.S. v. Commonwealth of Kentucky, CHFS, M.W., and S.C.W., a minor child, 2023-CA-1367
How does a case go from a parent having Covid-19 to termination of parental rights? Here’s a case that explains how the Cabinet can really mess up a case. It includes a stipulation of dependency – as opposed to the mandatory abuse/neglect required in a TPR case. It also references a parent that was, at least at a key juncture, fully compliant with the Court-approved case plan. Notwithstanding those facts, the Jackson County Family Court terminated parental rights, and Judge Cetrulo affirmed the trial court’s decision. Sharon K. Allen of Mckee, KY represented the mother in her appeal, and it had real merit. The real story is that this is a case of the Cabinet fumbling the ball on multiple occasions. A neutral read of the facts indicates that the courts failed to hold the CHFS accountable. Unreported, naturally. http://opinions.kycourts.net/COA/2023-CA-001367.PDF
Criminal Tally
This week, the criminal tally for defendant wins returns to bleakness. The scorecard shows Prosecution 5, Defendants 0.
Click here for the previous Round Up, and tune in tomorrow for this week’s actual Round Up!