RENDERED: JUNE 11, 2015 

TO BE PUBLISHED 

,i5uprrittr (Claud uf Tcfirttfuritv 

2014-SC-000309-DGE 

2014-SC-000582-DGE 

KEVIN ADDISON APPELLANT/CROSS-APPELLEE 

ON REVIEW FROM COURT OF APPEALS 

V. CASE NO. 2012-CA-002210-MRE 

HARDIN CIRCUIT COURT NO. 2006-CI-01275 

LYDIA ADDISON APPELLEE/CROSS-APPELLANT 

OPINION OF THE COURT BY JUSTICE BARBER 

REVERSING 

This appeal arises out of a. post-decree modification awarding sole 

custody of the parties' two minor children to Appellant/Cross-Appellee, Kevin 

Addison ("Kevin"). The Court of Appeals reversed and remanded, concluding 

that the trial court erred by arbitrarily limiting the time allotted for the hearing 

and by refusing to permit the children to testify. Kevin asks this Court to 

reverse the Court of Appeals' Opinion and reinstate the trial court's judgment. 

Appellee/Cross-Appellant, Lydia Addison ("Lydia"), contends that the trial court 

erred by not relinquishing jurisdiction to the Indiana trial court; by not 

applying the best interests of the child standard to each child; in failing to 

make findings of fact or conclusions of law regarding the parties' financial 

resources or otherwise address the issue of attorney's fees; and in failing to 
order Kevin to participate in a mental health evaluation.' For the reasons set 

forth below, we reverse the Court of Appeals and reinstate the ruling of the 

Hardin Circuit Court. 

I. BACKGROUND 

Lydia and Kevin were married in 1999; they have two children, M.A. (age 

7) and S.A. (age 1 1). In 2006, Kevin filed for dissolution of the marriage. On 

March 2, 2007, the Hardin Circuit Court entered a decree of dissolution, 

incorporating the parties' settlement agreement which provided that Lydia have 

sole custody of the children, with Kevin having reasonable parenting time. 

Before the decree was entered, Lydia and the children relocated to Indiana, 

where Lydia had a new boyfriend. 

After the parties separated, Kevin deployed to Iraq for six months. 2 

 When he returned, Kevin had difficulty enforcing his visitation. Soon after, he 

filed a motion to compel visitation; Lydia petitioned to domesticate the foreign 

order in Indiana and sought to modify Kevin's visitation. On May 22, 2007, the 

Kentucky and Indiana courts conducted a telephonic hearing 3and determined 

that jurisdiction of post-decree matters was properly in Kentucky. 

Over the next several years, the parties filed a variety of motions on postdecree matters, including numerous motions by Kevin regarding his visitation. 

1Lydia also raised an issue regarding her supervised visitation which is now 

moot. She has since received unsupervised parenting time based on the Hardin Circuit 

Parenting Guidelines. 

2Kevin is employed by the Army Corps of Engineers. 

3This hearing was pursuant to the Uniform Child Custody Jurisdiction and 

Enforcement Act (UCCJEA). 

2 
In March 2009, Kevin sought to be named joint custodian, because he was 

having trouble obtaining information about the children's medical and school 

records. Kevin also sought to include a proposed parenting-time schedule. 

Lydia objected to modification of custody and asserted that she was 

cooperating with visitation. Ultimately, the trial court ordered Lydia to show 

cause regarding her failure to cooperate with parenting time and set a hearing 

for April 6, 2010. On March 19, 2010, at the presentation of Kevin's renewed 

motion to adopt a parenting-time schedule, Lydia first apprised the court of her 

concerns that Kevin had sexually abused the children, 4almost two years after 

she allegedly became aware of it. In light of these allegations, the trial court 

denied Kevin's motion. The Cabinet for Health and Family Services 

investigated, but did not substantiate the allegations of sexual abuse. By Order 

of July 19, 2010, Kevin was allowed supervised parenting time. 

Kevin subsequently moved for unsupervised parenting time. He also filed 

a motion for Dr. Kelli Marvin to evaluate the parties and children and provide 

objective recommendations to the court concerning Kevin's parenting time and 

access to the children. 5Dr. Marvin is a forensic psychologist whom the trial 

court often uses as an expert in matters relating to child dependency, neglect 

4Subsequently, Kevin learned that the children had been in counseling since 

2009. The children had been seeing Danielle Vance at Family Focus. Vance was not 

licensed and is related to a close friend of Lydia's. 

5Previously, Kevin had filed a motion for an independent therapist to evaluate 

the children; however, the agreed-upon therapist would not see the children, because 

they were still being seen by Danielle Vance. 

3 
and abuse. By Order of February 2, 2011, the Court granted that motion and 

ordered Kevin to pay the costs of Dr. Marvin's evaluation. The parties 

subsequently filed various motions, including a motion by Lydia to submit 

additional information to Dr. Marvin and to clarify her role. The Court granted 

Lydia's motion to submit additional information and scheduled a hearing on 

the issue of Kevin's parenting time for January 2012. 

On January 8, 2012, Dr. Marvin's extensive report was submitted. She 

recommended that Kevin receive liberal and unsupervised access to the 

children. Dr. Marvin concluded that whether or not Lydia had actually 

encouraged the allegations of sexual abuse, she had played an active role in 

denigrating Kevin in the children's eyes and that her conduct was consistent 

with parental alienation. Dr. Marvin explained that in such situations, "a 

transfer of primary care and custody is typically recommended as this is viewed 

to be the only means by which to ensure cessation of denigrating behaviors and 

afford the target parent the time necessary to repair parent child relationships." 

Further, she stated that "in extreme cases, supervised contact with the 

denigrating parent is advised." The Court granted Kevin unsupervised 

parenting time based upon Dr. Marvin's report. After Dr. Marvin's report was 

filed, Kevin filed a motion for an addendum for Dr. Marvin to make custodial 

recommendations. Kevin also filed a motion for sole custody and for Lydia's 

parenting time to be supervised. 

The court granted Kevin's motion to have Dr. Marvin submit an 

addendum to her report making ultimate custodial recommendations. In the 
February 2, 2012, addendum, Dr. Marvin recommended that Kevin be awarded 

primary residential care and custody of the children. She concluded that it was 

in M.A.'s best interests, that the children should remain together, and that 

S.A.'s best interests were unknowable. After the addendum was filed, Lydia 

filed a motion to transfer jurisdiction to Indiana. A hearing on the modification 

of custody was scheduled for March 30, 2012. Lydia moved to continue the 

hearing. By Order of March 1, 2012, the hearing was continued and Lydia's 

motion to transfer jurisdiction was denied. The case was set for a six-hour 

hearing on August 16, 2012. 

The parties again filed various motions. Lydia moved the Court to 

appoint a guardian ad litem (GAL) for the children which was granted. She also 

sought to require Kevin to participate in a custodial evaluation by Dr. 

Zamanian; that motion was denied. 

On August 16, 2012, the court conducted the hearing. The children were 

not permitted to testify. The court ordered that custody be transferred to Kevin 

and that Lydia have supervised visitation. On September 5, 2012, Lydia filed 

motions for unsupervised visitation and to supplement the record which were 

orally denied. On October 26, 2012, the court entered Findings of Fact, 

Conclusions of Law and Judgment. Lydia filed a motion to alter, amend or 

vacate the judgment and a motion for additional findings of fact. By Order of 

November 28, 2012, the court denied Lydia's motion for unsupervised 

visitation. Lydia appealed to the Court of Appeals which ordered the trial court 

to rule on Lydia's motions to alter, amend or vacate and for additional findings. 

5 
On June 21, 2013, the trial court entered Amended and Supplemental 

Findings of Fact, Conclusions of Law, Decree and Order. 

By Opinion rendered May 16, 2014, the Court of Appeals reversed and 

remanded. The Court of Appeals determined that the trial court "improperly 

placed a time restriction on the hearing without considering the admissibility 

or exclusion of the evidence pursuant to the Kentucky Rules of Evidence, 

thereby denying Lydia the opportunity to present testimony." The Court of 

Appeals explained: 

Sub judice we believe that the trial court's time limit was an abuse 

of discretion given Lydia's lengthy witness list and what appears to 

be an arbitrarily imposed time limitation. We note that there did 

not appear to be an individualized assessment by the court 

regarding the time required by the parties to present their evidence 

when this matter was raised below by Lydia. While a standardized 

limitation may work in some instances, clearly the court should 

consider the individual case before imposition of time restrictions, 

which necessarily must be balanced with the court's inherent 

power to control its docket and to resolve matters expeditiously. 

See 75 Am. Jur. 2d Trial § 21 (2013)(discussing the general, 

inherent power of the court to control its docket). (Footnote 

omitted.) 

The Court of Appeals also concluded that the trial court erred in not 

permitting the children to testify. 

[T]his Court in Coleman [v. Coleman, 323 S.W.3d 770 (Ky. 

App. 2010)], held that though the trial court pursuant to KRE 

611(a) (3) retained discretion to exercise reasonable control over the 

mode and order of interrogating witnesses, it was error to exclude 

the child's testimony without a preliminary examination by the 

trial court to determine witness competency. In so finding, 

however, this Court cautioned that even if the court had made a 

determination of competency the court still had the authority 

under KRE 611(a)(3) to protect the child from undue harassment 

or embarrassment. 

We note that KRE 611(a) provides: 

6 
(a) Control by court. The court shall exercise 

reasonable control over the mode and order of 

interrogating witnesses and presenting evidence so as 

to: 

(1) Make the interrogation and 

presentation effective for the 

ascertainment of the truth; 

(2) Avoid needless consumption of time; 

and 

(3) Protect witnesses from harassment or 

undue embarrassment. 

Upon review of this provision and applicable precedent, we 

conclude that while KRE 611 gives the court the discretion to 

"protect" the witnesses from undue harassment or embarrassment, 

it does not afford the court the discretion to unilaterally exclude 

the testimony of the only other two witnesses to the events at issue 

when they were not found to be incompetent to testify. 

Certainly, the court could have taken means to protect the 

children from undue harassment and had the authority and 

discretion to do so. See Coleman, supra. Indeed, had the court 

been concerned that such would occur it could have either taken 

their testimony by avowal or interviewed them in chambers. KRS 

403.290(1) permits the trial court to interview a child in camera for 

the purpose of determining the child's wishes as to custodian and 

to visitation. However, the court did not do so. Thus, without any 

preliminary determination of incompetency below, the court erred 

by refusing to take the testimony of the children, either on the 

stand or . . . as permitted by KRS 403.290, and in doing so denied 

Lydia the opportunity for a full and fair hearing of her case; 

consequently, reversal is appropriate on this ground. 

The Court of Appeals was not persuaded by Lydia's argument that the 

trial court erred in retaining jurisdiction. The Court explained that under Biggs 

v. Biggs, 301 S.W.3d 32 (Ky. App. 2009), "continuing jurisdiction trumps home 

state jurisdiction." The Court of Appeals noted that Kevin had remained in 

Kentucky, he had visitation in Kentucky, and part of the children's family 

7 
remained in Kentucky. Lydia's argument that Kentucky was an inconvenient 

forum "should have been raised years ago after the initial jurisdictional 

determination by the Hardin Court, as opposed to . . . waiting years . . . [until] 

it appeared that the court would change . . . custody." The Court of Appeals 

explained that the trial court concluded it was retaining jurisdiction due to the 

length of time the case had been pending. The Court of Appeals believed that 

demonstrated that the trial court had considered the factors in KRS 403.834. 6 

6KRS 403.834 provides in pertinent part: 

(1) A court of this state which has jurisdiction under KRS 403.800 to 

403.880 to make a child custody determination may decline to exercise 

its jurisdiction at any time if it determines that it is an inconvenient 

forum under the circumstances and that a court of another state is a 

more appropriate forum. The issue of inconvenient forum may be raised 

upon motion of a party, the court's own motion, or request of another 

court. 

(2) Before determining whether it is an inconvenient forum, a court of 

this state shall consider whether it is appropriate for a court of another 

state to exercise jurisdiction. For this purpose, the court shall allow the 

parties to submit information and shall consider all relevant factors, 

including: 

(a) Whether domestic violence has occurred and is likely to 

continue in the future and which state could best protect 

the parties and the child; 

(b) The length of time the child has resided outside this 

state; 

(c) The distance between the court in this state and the 

court in the state that would assume jurisdiction; 

(d) The relative financial circumstances of the parties; 

(e) Any agreement of the parties as to which state should 

assume jurisdiction; 

(f) The nature and location of the evidence required to 

resolve the pending litigation, including testimony of the 

child; 

8 
The Court of Appeals could not say that the trial court erred in retaining 

jurisdiction "given the lengthy and complex litigation involving the parties sub 

judice." 

The Court of Appeals was not persuaded by Lydia's argument that the 

trial court erred in failing to order Kevin to participate in a mental health 

evaluation by Dr. Zamanian. The Court of Appeals declined to address Lydia's 

remaining arguments concerning custody, visitation, and attorney's fees, 

because of its decision to remand. 

This Court granted Kevin's Motion for Discretionary Review and Lydia's 

Cross-Motion for Discretionary Review. 

II. ANALYSIS 

A. The trial court did not abuse its discretion in limiting the hearing 

to six hours. 

Kevin contends that the trial court did not abuse its discretion in limiting 

the hearing to six hours. He explains that the hearing was scheduled well in 

advance, giving each party ample time to prepare its case within the time 

allotted. Each party had equal time with the witnesses who testified. The Court 

of Appeals believed that the trial court's time limit was an abuse of discretion 

given Lydia's lengthy witness list. As Kevin notes, the Court of Appeals failed to 

(g) The ability of the court of each state to decide the issue 

expeditiously and the procedures necessary to present the 

evidence; and 

(h) The familiarity of the court of each state with the facts 

and issues in the pending litigation. 

9 
consider that the hearing date was scheduled "well in advance of a witness list 

being filed per the Family Court Rules of Procedure and Practice." 

Lydia argues that she was limited in her ability to present evidence and 

introduce the testimony of a number of relevant witnesses at the hearing. She 

cites Ingram v. Ingram, 125 P.2d. 694 (Ok. App. 2005), which sets forth a list of 

factors for (Oklahoma) courts to consider when determining if specific time 

factors should be imposed. We note that one of those factors is that time limits 

should be imposed sufficiently in advance of trial for litigants to prepare for 

trial within those limits. That is exactly what the trial court did here when it 

scheduled the hearing approximately six months in advance. 

Lydia contends that the trial court indicated it "never provides more than 

six hours for any hearing." We disagree with that characterization. The judge 

stated that "I only allocate six hours if there is going to be expert testimony. 

Generally, I anticipate that we can get these [modification of custody hearings] 

wrapped up in four hours." Lydia explains that she requested an entire day for 

the final hearing, due to the complex nature of the case. The record reflects 

that the hearing began at approximately 9:05 a.m. and ended at approximately 

4:45 p.m., including time for preliminary matters and breaks. We would 

consider that an entire day. 

The trial court "is vested with a large discretion in the conduct of the trial 

of causes and an appellate court will not interpose to control the exercise of 

such discretion by a court of original jurisdiction, unless there has been an 

abuse or a most unwise exercise thereof." Transit Auth. of River City (TARC) v. 

10 
Montgomery, 836 S.W.2d 413, 416 (Ky. 1992). In exercising that discretion, "a 

trial court clearly has the power to impose reasonable time limits on the trial of 

both civil and criminal cases . . . . See, United States v. Reaves, 636 F.Supp. 

1575 (E.D.Ky.1986). As long as these trial time limits are not arbitrary or 

unreasonable we will not disturb the court's decision on review." Hicks v. 

Commonwealth, 805 S.W.2d 144, 151 (Ky. App. 1990). The trial court also has 

"discretion 'to . . . control . . . the amount of evidence produced on a particular 

point.' Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. App.1992) (citing 

Woods v. Commonwealth, 305 S.W.2d 935 (Ky.1957), and Johnson v. May, 307 

Ky. 399, 211 S.W.2d 135 (1948))." Branham v. Rock, 449 S.W.3d 741, 749 (Ky. 

2014). 

Unquestionably, the trial court was very familiar with the history of this 

case when it allotted six hours for the hearing. As the Court of Appeals noted, 

the length of time the case had been pending before the trial court was a factor 

in its decision to retain jurisdiction. The trial court already had Dr. Marvin's 

more-than-seventy-five-page report when it scheduled the hearing, and had 

heard endless motions and arguments long before that. Given the trial court's 

experience with modification hearings in general, and its familiarity with the 

facts and circumstances of this particular case, we cannot say that the trial 

court abused its discretion in limiting the hearing to six hours. 

11 
B. The trial court did not err in refusing to permit the children to 

testify. 

Lydia explains that before trial she requested that S.A. and M.A. be 

allowed to testify as to their wishes regarding their custodian and parenting 

time. The trial court declined to interview the children in chambers. Lydia does 

not dispute that a decision to interview the children in camera pursuant to KRS 

403.290(1) 7lies within the trial court's sound discretion, but argues that 

neither KRE 611 nor KRS 403.290(1) can be interpreted to exclude a child 

when called as a witness by a party in a custody proceeding. The Court of 

Appeals agreed. 

The Court of Appeals explained that "while KRS 611 gives the court the 

discretion to 'protect' the witnesses from undue harassment or embarrassment, 

it does not afford the court the discretion to unilaterally exclude the testimony 

of the only other two witnesses to the events at issue when they were not found 

to be incompetent to testify." 

The Court of Appeals relied upon its earlier decision in Coleman v. 

Coleman, 323 S.W.3d 770 (Ky. App. 2010). In Coleman, the mother asked to 

call her ten-year-old daughter to testify at a hearing on a change of custody 

motion. The trial court denied the request, based upon its concerns about the 

child's age, the pressure of testifying and putting the child in a position of 

having to choose between her parents. The trial court also denied the mother's 

7KRS 403.290(1) provides in relevant part that "[t]he court may interview the child in 

chambers to ascertain the child's wishes as to his custodian and as to visitation." 

12 
request to permit the child's testimony by avowal or to conduct an interview in 

chambers. Coleman found no abuse of discretion in the trial court's refusal to 

interview the child in chambers, because the language of KRS 403.290(1) is 

discretionary; however, the Court concluded that it was error for the trial court 

to exclude the child's testimony without first having determined her 

competency: 

Leahman v. Broughton, 196 Ky. 146, 244 S.W. 403 (1922) 

makes clear that anyone may testify as long as they are 

deemed to be competent. However, under KRE 611(a)(3), the trial 

court retains discretion to 'exercise reasonable control over the 

mode and order of interrogating witnesses and presenting evidence 

so as to . . . [p]rotect witnesses from harassment or undue 

embarrassment. KRE 611(a)(3). 

[I]t was error to exclude the child's testimony without a 

preliminary examination by the trial judge to determine her 

competency . . . under KRE 601 . . . . 

Id., at 772. 

We disagree. Leahman did not involve child custody or parenting time. 

• Leahman involved an action for an alleged wrongful forcible assault made upon 

the child's mother. The mother had testified that her then-five-year-old 

daughter was present at the time and saw what occurred. At the time of trial, 

the child was eight years old. She was examined by the court out of the jury's 

presence and substantially corroborated her mother's version of the facts 

which was in conflict with the defendant's; however, the child's testimony was 

excluded because the trial court determined that. she was incompetent due to 

13 
her age. The former Court of Appeals concluded that the trial court erred in 

excluding the child's testimony which was reasonably intelligent for her age. 

The reason given for the disposition of the courts in modern times 

to widen the rule relating to the competency of witnesses, 

including infants . . . is that the essential thing in the conduct of 

litigation is for the tribunal to have before it the facts of the case, 

and that as few obstructions should be thrown in the way of 

obtaining them as possible, leaving it to the jury or other tribunal 

passing upon the facts to protect the interest of the opposing 

litigant by giving such credence to the offered testimony, even to 

rejecting it entirely, as the circumstances show it deserves. 

Id., at 405. 

The trial court had the facts of this case before it. As Kevin explains, "the 

testimony of the children would offer nothing to the [trial] Court in determining 

the children's best interest. The [trial] Court had the benefit of countless hours 

of interviews of the children by the GAL and the two psychologists." Lydia notes 

the protections of KRE 611(a)(3) and that the General Assembly took measures 

to protect children by providing a specific mechanism for the trial court to 

ascertain the child's wishes in KRS 403.290(1). That is true. The General 

Assembly wisely left the decision to interview a child in chambers to the sound 

discretion of the trial court. We also believe that the decision to permit a child 

to testify in a proceeding involving custody or visitation should be left to the 

sound discretion of the trial court. To hold otherwise would render the 

protection afforded by KRS 403.290(1) meaningless. "The elementary principles 

of humanitarianism are so strongly against the placing of a child between its 

parents that we feel a trial court should have a wide latitude in protecting the 

child." Parker v. Parker, 467 S.W.2d 595, 597 (Ky. 1971). 

14 
As the Court of Appeals eloquently stated in C. T. v. F.T., No. 2007-CA001452-ME, 2008 WL 5215939, at 5 (Ky. App. 2008): 

[W]e do not condemn but rather applaud the court for using its 

discretion to disallow testimony from two young children who were 

clearly traumatized by the enduring drama of their parents['] 

divorce. Furthermore, it appears that the GAL adequately 

advocated for his clients' best interests without subjecting them to 

yet another "expert" interview that is not required by law. The GAL 

and the court had the benefit of numerous opinions from experts 

as well as other witnesses to form their assessment of a then eightyear-old boy and five-year-old girl. Their young age and the 

pressure applied by Mother severely diminish, if not completely 

obscure, the value of their opinions or testimony. The continued 

pursuit by Mother to put her children directly in the "line of fire," 

only further proves the soundness of the family court's judgments. 

To the extent that Coleman holds that a trial court must permit a child to 

testify in a proceeding involving custody or visitation, unless that child is 

incompetent to testify, Coleman is overruled. 

C. The trial court did not err in retaining jurisdiction. 

In 2007, Lydia first, requested that the trial court transfer jurisdiction to 

Indiana. At that time, the Hardin Circuit and Indiana judges held a telephonic 

conference pursuant to the UCCJEA and determined Kentucky was the proper 

jurisdiction for post-decree child custody matters. Lydia did not raise the issue 

again until 2012, just months before the final hearing. Jurisdiction is a 

question of law which we review de novo. Grange Mutual Insurance Company v. 

Truae, 151 S.W.3d 803, 810 (Ky. 2004). 

When the initial custody determination was made in Kentucky, it is 

undisputed that Kentucky was the children's home state. When the subject 

hearing took place, the children had been Indiana residents for approximately 

15 
five years. The original decree state retains continuing, exclusive jurisdiction if 

the child and the parent (or person acting as a parent) remaining in this state 

have significant connections. Biggs v. Biggs, 301 S.W.3d 33-34 (Ky. App. 2009). 

Biggs holds that if the parent remaining in the original decree State exercises 

at least some visitation with the child in that state, significant connections 

exist. That is exactly the situation sub judice. 

Despite Lydia's statement that the timing is of no consequence, clearly 

her timing is suspect. As the Court of Appeals noted, "five years into the 

proceedings, Lydia sought transfer of this matter to Indiana and argued that 

Kentucky was an inconvenient forum." That was after Dr. Marvin had 

completed her report. We agree with the Court of Appeals that Lydia should 

have raised the issue of whether Kentucky was an inconvenient forum years 

ago. 

We are not persuaded by Lydia's argument that the trial court did not 

consider the factors set forth in KRS 403.834. The trial court specifically stated 

it was retaining jurisdiction based on the length of time the case was pending 

before it and its familiarity with the issues of the case. We find no error. 

D. The trial court properly applied the best interests of the child 

standard to each child. 

Lydia contends that the trial court failed to apply the best interests of the 

child standard to each child. 8The determination of a child's best interests is a 

8KRS 403.340(3) provides in relevant part: 

[W]hether a modification of custody is in the best interests of the child, 

the court shall consider the following: 

16 
factual finding and the standard of review is whether the finding of fact was 

clearly erroneous. A finding of fact is clearly erroneous only if it is manifestly 

against the great weight of the evidence. Frances v. Frances, 266 S.W.3d 754 

(Ky. 2008). 

Dr. Marvin opined that: (1) it is in the best interest of the children that 

they remain living together and are not separated, (2) it is certainly in the best 

interest of M.A. that she reside primarily with Kevin, and (3) Lydia played a 

definitive role in the false sexual abuse allegations and in the denigration of the 

relationship between Kevin and the children. Further, Dr. Marvin stated that 

the best interest of S.A. is unknown due to the risk that she will have a 

negative reaction to such a move, the severity of which is unpredictable. 

Nevertheless, Dr. Marvin recommended that based on the totality of the 

circumstances both children should be in the sole custody and care of their 

father, Kevin. 

(a) Whether the custodian agrees to the modification; 

(b) Whether the child has been integrated into the family of 

the petitioner with consent of the custodian; 

(c) The factors set forth in KRS 403.270(2) to determine the best interests 

of the child; 

(d) Whether the child's present environment endangers seriously his 

physical, mental, moral, or emotional health; 

(e) Whether the harm likely to be caused by a change of environment is 

outweighed by its advantages to him; and 

(f) Whether the custodian has placed the child with a de facto custodian. 

17 
On June 21, 2013, the trial court issued Amended and Supplemental 

Findings of Fact. Kevin notes that the trial court listed all the factors of KRS 

403.340 and 403.270. The court clearly explained that given Dr. Marvin's 

recommendation the children should stay together, that M.A. should reside 

with her father, and given the harmful role played by their mother, it is in the 

best interests of both children to be in the sole custody of their father. The trial 

court did not fail to address Dr. Marvin's concerns about the transfer of S.A. to 

Kevin's care. The trial court determined that the risk of harm to S.A.'s mental 

health was greater if she remained in her mother's care than if she was 

transferred to her father's care. "Custody decisions should be based on all the 

statutory factors and not just on psychological evaluations." Reichle v. Reichle, 

719 S.W.2d 442, 445 (Ky. 1986). The trial court properly considered the 

statutory factors and determined what was in the best interests of each child. 

E. The trial court properly ruled that each party is responsible for 

his or her own attorney's fees. 

Lydia contends that the trial court erred, because it did not make 

findings or conclusions regarding her request for attorney's fees pursuant to 

KRS 342.220. The statute provides in relevant part that "[t]he court from time 

to time after considering the financial resources of both parties may order a 

party to pay a reasonable amount for the cost to the other party of maintaining 

or defending any proceeding under this chapter and for attorney's fees." In its 

amended and supplemental findings, the Court declined to award Lydia 

attorney's fees, having found that her actions necessitated these proceedings. 

"[E]ven if a [financial] disparity exists, whether to make such an assignment 

la 
and, if so, the amount to be assigned is within the discretion of the trial 

judge .... There is nothing mandatory about it."' Neidlinger v. Neidlinger, 52 

S.W.3d 513, 519 (Ky. 2001) (citations omitted). We find no abuse of discretion. 

F. The trial court did not err in denying Lydia's motion that Kevin 

participate in an evaluation with Dr. Zamanian. 

Lydia contends that Dr. Marvin was Kevin's expert and that the trial 

court should have required him to participate in an evaluation with her expert. 

The argument lacks merit. Initially, the court granted Kevin's motion to have 

the children evaluated by an independent psychologist. As ordered, the parties 

agreed upon a psychologist; however, that psychologist refused to see the 

children because they were still seeing Danielle Vance. As a result, Kevin filed a 

motion for evaluation by Dr. Marvin. Lydia did not seek to compel Kevin's 

participation in an evaluation by Dr. Zamanian, until she became aware of Dr. 

Marvin's findings. Again, Lydia's timing is suspect. As the Court of Appeals 

explained, Lydia "cited to CR 35.01[ 9] in the motion, but never asserted that 

Kevin's mental health was in controversy." The Court of Appeals found "Lydia's 

motion requesting that Kevin undergo another custodial evaluation with 

9 CR 35.01 provides: 

When the mental or physical condition ... of a party ... is in 

controversy, the court in which the action is pending may 

order the party to submit to a physical or mental 

examination by a physician, dentist or appropriate health 

care expert, or to produce for examination the person in his 

custody or legal control. The order may be made only on 

motion for good cause shown and upon notice to the person 

to be examined and to all parties and shall specify the time, 

place, manner, conditions, and scope of the examination and 

the person or persons by whom it is to be made. 

19 
citation to CR 35.01 to be insufficient to establish good cause and that Kevin's 

mental health was in controversy."' We agree and find no error. 

III. CONCLUSION 

For the foregoing reasons, we reverse the Court of Appeals and reinstate 

the ruling of the Hardin Circuit Court. 

All sitting. All concur. 

COUNSEL FOR APPELLANT: 

Jeremy Scott Aldridge 

Carey Hendricks Aldridge 

Aldridge 86 Aldridge Law Firm 

2411 Ring Road, Suite 102 

Elizabethtown, KY 42701 

COUNSEL FOR APPELLEE: 

Allen McKee Dodd 

Dodd 86 Dodd Attorneys, PLLC 

325 West Main Street, Ste. 2000 

Lousiville, KY 40202 

20