RENDERED: MARCH 8, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0893-MR

RICHARD TYLER BARNES APPELLANT 

v. 

APPEAL FROM TAYLOR CIRCUIT COURT

HONORABLE KAELIN G. REED, JUDGE

ACTION NO. 21-CI-00011

ALETA RENZELLI AND DEREK 

WRIGHT APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.

ACREE, JUDGE: Richard Tyler Barnes (Tyler), Appellant, appeals the Taylor 

Family Court’s May 12, 2022 Order redesignating the primary custodian of the

minor child at the center of this case, and modifying the parties’ timesharing 

arrangement to reduce Tyler’s time shared with the child. We affirm.
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BACKGROUND

Tyler and Appellee Aleta Renzelli began dating in or around May of 

2016. Aleta lived in West Virginia. Tyler traveled from Kentucky to visit her. 

Tyler and Aleta had sex during the first week of July. Aleta also had sex with 

Appellee Derek Wright on or around August 10. Aleta discovered she was 

pregnant two weeks later. Because Aleta had her period after having sex with 

Tyler, and because Aleta’s doctor estimated Aleta’s date of conception was around 

August 10, Aleta all but knew Derek was the father.

However, Aleta told Tyler she was pregnant with his child. Aleta

believed Tyler was more capable of providing for the child’s needs, considering 

Derek did not have a job and was a student. Aleta also told Derek she was 

pregnant and assured him he was not the father.

Aleta gave birth to the child on May 1, 2017. Tyler was present. 

Tyler and Aleta planned to marry and so they decided to give the child Tyler’s last 

name. Tyler, Aleta, and the child lived together after Aleta was discharged from 

the hospital. Tyler began working eighty hours per week to support them.

Around the child’s first birthday in 2018, Derek began to suspect that 

the child was his. Derek asked Aleta whether she was sure he was not the father. 

Aleta again assured Derek that the child was not his.
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Tyler and Aleta separated in 2019. Aleta and the child moved into an 

apartment in Campbellsville, Kentucky. Tyler worked overtime to provide 

financial support to Aleta. Though Tyler and Aleta began living together again in 

the fall of 2019, the pair terminated their relationship finally in July 2020, but 

continued to share the same abode.

Derek saw pictures of the child on social media and, now that the 

child was older, believed the child looked like him. He confronted Aleta about his 

suspicion. Aleta told Tyler he was not the child’s father in December of 2020, and 

she moved to West Virginia in January 2021.

Tyler filed the underlying custody action on January 13, 2021. Aleta 

filed a DNA test in the record which showed, with near certainty, that Derek was 

the father. On July 9, 2021, the family court awarded joint custody to Tyler, Aleta, 

and Derek. The court also ordered two timesharing schedules. The first applied if 

Aleta continued to live more than one hundred miles from Campbellsville and 

identified Tyler as the primary residential custodian. The second would apply if 

Aleta lived within a hundred miles of Campbellsville, and established Aleta as the 

primary residential custodian. Though Aleta initially planned to move back to 

Kentucky – and did live with her mother in Bowling Green for a brief period – she

ultimately returned to West Virginia.
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Tyler and Aleta agreed to a flexible equal timesharing arrangement 

which could be adjusted depending on their work schedules. This arrangement 

was expected to continue until August 2022, at which point the child would begin 

school in Kentucky. However, Tyler began to doubt Aleta would enroll the child

in Kentucky. 

On March 7, 2022, Tyler filed a motion to enforce the family court’s 

July 9, 2021 order. Shortly thereafter, on March 15, 2022, Derek filed a motion to 

modify timesharing. The family court held a hearing on both motions on March 

22, 2022. The child began preschool in West Virginia that March.

On May 12, 2022, the family court entered its order granting Derek’s

motion to modify timesharing. The family court designated Derek as the child’s 

primary custodian, determining this change to be in the child’s best interest “[d]ue 

to the change in circumstances, specifically, [the child]’s acclimation to West 

Virginia, his strong bond with Derek, and his now established relationships with 

his family in West Virginia[.]” (Record (R.) at 221). The family court also 

modified timesharing, with Tyler no longer receiving equal parenting time. The 

court denied Tyler’s motion to enforce as moot.

The family court denied Tyler’s subsequent motion to alter, amend, or 

vacate, and he now appeals.
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STANDARD OF REVIEW

When reviewing decisions related to child custody, appellate courts 

review a family court’s factual findings for clear error. B.C. v. B.T., 182 S.W.3d 

213, 219 (Ky. App. 2005) (citations omitted); CR1 52.01. A family court’s factual 

findings are clearly erroneous if they are unsupported by substantial evidence. 

Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citing Commonwealth v. 

Deloney, 20 S.W.3d 471, 474 (Ky. 2000)). Substantial evidence is “that which, 

when taken alone or in light of all the evidence, has sufficient probative value to 

induce conviction in the mind of a reasonable person.” Bowling v. Nat. Res. & 

Env’t Prot. Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citing Kentucky State 

Racing Comm’n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972)).

“If the findings of fact are supported by substantial evidence and if the 

correct law is applied, a family court’s ultimate decision regarding custody will not 

be disturbed, absent an abuse of discretion.” B.C., 182 S.W.3d at 219 (citations 

omitted). A trial court has abused its discretion when its decision was “arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. 

English, 993 S.W.2d 941, 945 (Ky. 1999).

1 Kentucky Rules of Civil Procedure.
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ANALYSIS

Tyler argues the family court erred by applying KRS2 403.320 –

which governs modification to visitation – instead of KRS 403.340 – which 

governs modification of custody decrees. He argues the family court did so in 

violation of Crossfield v. Crossfield, 155 S.W.3d 743 (Ky. App. 2005). In 

determining whether changing the primary residential custodian from one parent to 

another “is subject to the statutes relating to modification of custody or subject 

only to the statute concerning visitation modification[,]” this Court concluded in 

Crossfield such change constituted a modification of the joint custody 

arrangement, and thus the stricter requirements of KRS 403.340 applied. 

Crossfield, 155 S.W.3d at 745-46.

However, the Kentucky Supreme Court overruled Crossfield’s

holding in Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). In Pennington, the 

Kentucky Supreme Court stated specifically that redesignation of a parent as the 

primary residential parent “would be a modification of timesharing under joint 

custody.” Id. at 769 (citations omitted). Pennington does not cite Crossfield 

directly. See id. However, the Supreme Court in Shafizadeh v. Bowles plainly 

confirmed Pennington overruled Crossfield. 366 S.W.3d 373, 375-76 (Ky. 2011). 

“[U]nder Crossfield, a change in the primary residential custodian status was a 

2 Kentucky Revised Statutes.
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modification of custody.” Id. at 375. “This holding is overruled by Pennington.” 

Id. “Under Pennington, a parent seeking to become a primary residential parent in 

a joint custody arrangement is seeking a change in timesharing, not custody.” Id.

Tyler contests the family court’s decision to redesignate Derek as the 

child’s primary residential custodian pursuant to a joint custody arrangement in 

which Tyler, Aleta, and Derek participate. Under such facts, the Kentucky 

Supreme Court makes clear that such a change in status constitutes a change in 

timesharing. Accordingly, the family court did not err when it applied KRS 

403.320 to decide Derek’s motion.

Naturally, we must now determine whether the family court 

misapplied KRS 403.320(3) to modify the parties’ timesharing arrangement. As 

this statute provides, “[t]he court may modify an order granting or denying 

visitation rights whenever modification would serve the best interests of the 

child[.]” KRS 403.320(3). 

Appellant insists that, in order to determine what constitutes the 

child’s best interest for the purpose of KRS 403.320(3), we must turn to the eleven 

factors which KRS 403.270(2) supplies. Our jurisprudence makes clear this is not 

so. While KRS 403.270 addresses the initial custody determination, KRS 403.320 

governs modification of visitation or timesharing. Layman v. Bohanon, 599 

S.W.3d 423, 430 (Ky. 2020). KRS 403.320 does not provide the same rebuttable 
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presumption found under KRS 403.270 that equal timesharing is in the best interest 

of the child. However, the most convincing evidence that application of KRS 

403.320(3) does not require that we turn to the KRS 403.270(2) factors is found by 

comparing KRS 403.340, the custody decree modification statute; when deciding 

whether to modify a prior custody decree, courts are specifically required to weigh, 

among other considerations, “[t]he factors set forth in KRS 403.270(2) to 

determine the best interests of the child[.]” KRS 403.340(3). Had the legislature 

intended courts to consider the KRS 403.270(2) factors when determining a child’s 

best interest sufficient to modify timesharing under KRS 403.320(3), the 

legislature could have drafted 403.320(3) accordingly.

With this in mind, we detect no error in the family court’s decision. 

The court considered the changes in the child’s life. The child is doing well in 

West Virginia and is developing a close relationship to Derek and Derek’s

extended family. (R. at 220-21). The court observed the child’s closest 

relationship between the three custodians is with Derek. Id. And the court noted 

Derek “has fulfilled all obligations one would expect of a father since being 

granted custody of [the child].” Id. at 220.

Because substantial evidence supports the family court’s findings, 

and because the family court did not abuse its discretion in designating Derek as 

primary custodian and modifying the parties’ timesharing arrangement, we affirm.
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CONCLUSION

Based on the foregoing, we affirm the Taylor Family Court’s May 12, 

2022 Order.

ALL CONCUR. 

BRIEF FOR APPELLANT:

Bryan E. Bennett

Lexington, Kentucky

BRIEF FOR APPELLEE DEREK 

WRIGHT:

Wesley E. Bright

Campbellsville, Kentucky