It can be devastating when your mental health is used to challenge your fitness as a parent.
Attorney James Murphy of Hoge Partners, PLLC, recently argued and won a case before the Supreme Court of Kentucky.
He represented a woman who had primary physical custody over her two children. Her ex-husband was trying to change the custody arrangements in his favor, arguing that our client had mental health issues that interfered with her ability to parent. He contended it was in the children’s best interest to change primary physical custody.
The trial court had asked a friend of the court (FOC), a licensed attorney, to interview the relevant people and present findings to the court. The question before the Kentucky Supreme Court was, when an FOC issues a report on whether someone is fit to parent, is it admissible?
The FOC’s report was positive for our client. After interviewing the parties, their children, our client’s healthcare providers, the children’s school counselors, one of the children’s teachers, the parties’ attorneys and a court-appointed psychologist, the FOC concluded that our client’s mental health issues did not interfere with her ability to parent.
Our client’s ex-husband challenged the admissibility of the FOC’s report on several grounds. One was that it contained hearsay evidence. Another was that the FOC should not have been allowed to provide a final opinion because she had not been declared an expert by the court. Only experts are allowed to testify as to their opinions.
The Kentucky Supreme Court held that any hearsay evidence was admissible in this instance because there had been sufficient due process to allow it. Each party had access to the report for a sufficient period of time to challenge it effectively at trial.
Moreover, the Supreme Court noted that Kentucky law allows for the appointment of an FOC and implies that an FOC is qualified to provide opinion evidence.
There were some twists and turns, but ultimately the high court decided that the FOC’s report was admissible. Additionally, it found that the lower court’s finding that a change in custody would not be in the children’s best interest was supported by sufficient evidence.
Sometimes, you have to go the extra mile for a client. We are proud to have had the opportunity to do so in this case.