Fitch v. Burns

GANT, Justice,

dissenting.

Respectfully, I dissent. The trial court did not err in denying movant’s Motion to Dismiss for Improper Venue. KRS 403.-420(4) establishes the proper venue for a custody proceeding. When said proceeding is initiated by a parent, the proper venue is “the county in which he [the child] is permanently resident or found.” KRS 403.-420(4)(a).

Identical language governs venue when the proceeding is initiated by a non-parent who has physical custody of the child. KRS 403.420(4)(b). The statute makes no distinction based upon the identity of the petitioner, and for this court to do so would exceed our authority.

The majority rests its decision upon its conclusion that the children were only temporarily entrusted to the Burnses. The evidence on that fact is conflicting, and there is considerable evidence to the contrary. Furthermore, the trial court made no fact finding on that issue. The record does reveal, however, that the Burnses filed their petition for both permanent and temporary custody on November 18, 1986. On November 21, 1986, they filed another petition for temporary custody in which they stated their fear for their grandchildren’s safety if they were returned to their father.

Fitch requested return of the children after he was indicted in their mother’s death. On December 9, 1986, he filed a petition for immediate possession.1 This petition was denied by the trial court, and temporary custody was awarded to the Burnses, in whose custody the children have remained pursuant to the orders of the court. Despite the fact that Fitch wanted the children returned to him, the Burnses’ possession of them was not wrongful.

The majority implies that the result on the merits might be no different in Fayette County. However, if the case is dismissed and the children returned to their father, there will be no decision on the merits. KRS 403.420(4)(b) grants standing to a non-parent only if the non-parent has physical possession of the child. Furthermore, because the children have, pursuant to court order, resided in Rowan County for three years (most of their lives) the vast majority of evidence regarding their well-being is now found in Rowan County. Fayette County is arguably as inconvenient a forum at this point as Rowan County may have been three years ago.

After removing from consideration that evidence admitted under the residual exception to the hearsay rule, there remains ample evidence in the record to support the trial court’s findings that: the personal characteristics demonstrated by Fitch in his public life did not extend to his personal life and family relations; Fitch physically abused his wife and his lack of self-control was demonstrated in the circumstances of her death; Fitch was a man who erupted into violent behavior when he was angry or frustrated; Fitch suffered from a personality disorder which contributed to the instability of his interpersonal relations, and the risk of injury from his inappropriate behavior was greatest for those with whom he was intimate and those who were defenseless, including young children. Furthermore, Fitch pleaded guilty to second-degree manslaughter, thereby admitting that he had wantonly caused the death of the children’s mother.

The trial court was without the benefit of Davis v. Collinsworth, Ky., 771 S.W.2d 329 (1989), which states that for a non-parent to prevail over a parent in a custody proceeding, the unfitness of the parent must be proved by clear and convincing evidence and which delineates the factors to be considered by the court. Regardless of that *624fact, the trial court’s findings and the evidence in the record support its conclusion that Joe Fitch was not a fit parent. Because Fitch was not fit to have custody and because the Burnses were found to be suitable custodians, the trial court properly awarded custody of these children to the Burnses.

VANCE and WINTERSHEIMER, JJ., join in this dissent.

. Contrary to the majority opinion’s explanation that the purpose of the words "or found” in KRS 403.420(4)(a) and (b) is to accommodate "the parent, or other person then vested with legal custody," a person having legal custody does not file a petition for custody under this statute— they already have custody. Their proper remedy is to file a motion for immediate possession of the children.