RENDERED: JANUARY 27, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2021

- CA

- 1233

- MR

AARON J. HAUBNER APPELLANT

APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE JENNIFER R. DUSING , JUDGE ACTION NO. 20

- CI

- 00728

JAMIE E. HAUBNER APPELLEE

OPINION VACATING AND REMANDING

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BEFORE: EASTON, ECKERLE , AND GOODWINE , JUDGES

. EASTON , JUDGE: The Appell ant contests a decision of the Boone Family Court affecting the custody of his two minor children , specifically an order regarding counseling. Upon review, we are compelled to vacate and remand for required written findings of fact

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- T his is an appeal arisi ng from a dissolution of marriage action in Boone Family Court. Most of the issues were resolved by the parties pursuant to a partial settlement agreement , which the family court incorporated into its decree on September 23, 2021. The sole issue before us involves an issue the parties did not
address in their partial settlement agreement , whether and to what extent therapy or counseling would be appropriate for their two minor sons, S.J.T.H. (born 2010) and H.W.H. (born 2013 )

.

T he issue of therapy and c ounseling was not raised by the family

court

. 1 The parents raised the issue, which they had reserved in their partial settlement agreement as an ancillary custody issue. The parents share joint custody of the children. T he children’s mother , A ppellee (“Jamie”) believ ed counseling would be benefi cial . The c h ildren’s father , Appellant (“Aaron”) objected to counseling as unnecessary . Having reached a n impasse as to counseling , they asked the family court to resolve their dis agreement

.

1 When addressing the issue of custody, a trial court must consider all relevant factors , which may include “[t]he mental and physical health of all individuals involved [

. ] ” Kentucky Revised Statute ( “ KRS ” ) 403.270(2)(e). Thus, with or without the approval or a motion from the involve d parents, the trial court has discretionary authority to order the parties (including the minor children) to undergo psychological evaluations and counseling during the proceedings. See Family Court Rule of Practice and Procedure ( “ FCRPP ” ) 6(2). Moreove r, the trial court may condition granting a final hearing in a dissolution proceeding upon the completion, by everyone in the family, of divorce counseling or a divorce education program. See FCRPP 6(4). Nothing to that effect occurred below, nor was it required. In any event, in exercising any such discretionary authority, the overriding principle in custody matters is, as always, that the best interest of each child must be served by the family court’s decision. Burchell v. Burchell , 684 S.W.2d 296, 3 00 (Ky. App. 1984).- 3

- On Septem ber 14, 2021, the family court held a two

- hour evidentiary hearing on this matter. The only evidence offered for consideration by the court

was the testimony of Aaron and Jamie, who each explained why, in their respective lay opinions, 2 the children shou ld or should not attend counseling. Thereafter, the family court ruled in Jamie’s favor. Its f indings to that effect, as set forth in a “supplement to decree” o rder of September 27, 2021, were in relevant part as follows: The Court, having heard and care fully considered the

testimony and evidence presented; and being in all ways sufficiently advised, makes the following: 1. The minor children shall attend counseling with Abby at Brightside Counseling [ 3 ] or another agreed upon child therapist. 2. The children shall attend at a frequency of two (2) times per month, or less as agreed upon by the parties or recommended by the counselor. 3. Counseling shall continue until recommended by the counselor that the children no longer need counseling or as agre ed upon by both parties. 4. Both parties shall be involved in the counseling and may participate, as recommended by the counselor.

2 Aaron and Jamie each testified they had no training or experience with therapy or counseling.

3 The qualifications of any counselor were not presented at the evidentiary hearing. And, while the parties were apparently aware of the identity of “Abby at Brightside Counseling,” nothing of record indicates her last name.- 4

- 5. The cost of counseling shall be divided by the total percentage of incomes as set forth in the Child Support Worksheet attached to the Property Settlement and Custody Agreement, with Father paying 73% and Mother paying 27%. On appeal, Aaron argues the family court’s order directing the children to attend therapy made insufficient findings to justify its order , and the specifics of the family court’s counseling directive were vague and overbroad. Upon review, we agree the findings are insufficient requiring remand

. Generally speaking, Issues concerning educational decisions and medical

decisions are matters of custody. Keeton v. Keith , 511 S.W.3d 918, 921 (Ky. App. 2017). “A significant and unique aspect of full joint custody is that both parents possess the rights, privileges, and responsibilities associated with parenting and are expected to consult and p articipate equally in the child ’ s upbringing.” Pennington v. Marcum , 266 S.W.3d 759, 764 (Ky. 2008). Where the parties “are unable to agree on a major issue concerning their child ’ s upbringing, the trial court, with its continuing jurisdiction over custo dy matters, must conduct a hearing to evaluate the circumstances and resolve the issue according to the child’s best interest .” Burchell v. Burchell , 684 S.W.2d 296, 300 (Ky. App. 1984) (emphasis added).
Warawa v. Warawa , 587 S.W.3d 631, 636 (Ky. App. 20 19)

.

Like educational and medical decisions, mental health decisions ( e.g. , whether to order counseling or therapy for minor children ) are matters of custody

. Moreover, there is no dispute between the parties that the mental health decisions- 5

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at issue wer e major one s . H ere, as required, the family court conducted a hearing
on th e issue after the parties reached an impasse. However, it was not enough for the family court to conduct a hearing and reach a documented decision

. Rather, the family court was required “to evaluate the circumstances and resolve the issue according to the child [ren] ’s best interest .” Id . ( c itation omitted).

This paramount basis for custody decisions requires findings of fact.
The family court’s order does n ot contain findings to explain why counseling was warranted, why the frequency was chosen , or why it was consistent with the children’s best interests. As such, it does not comply with Anderson v. Johnson , 350 S.W.3d 453 (Ky. 2011), and Keifer v. Keifer , 354 S.W.3d 123 (Ky. 2011), which require written findings of fact in all matters affecting child custody

– regardless of whether an aggrieved party requests such findings. 4

Jamie asserts on page 2 of her appellate brief, without citation to the record, t hat the family court did make a “best interests” determination. Having reviewed the recorded hearing, this Court found no exposition on this subject. The family court stated nothing on the subject in its post

- hearing, handwritten calendar order of Septem ber 14, 2021 , or in its written o rder of September 27, 2021 , or at any point in time from the bench during the two

- hour evidentiary hearing

.

4 A s Jamie points out, Aaron did not request findings of fact pursuant to Kentucky Rule of Civil Procedure ( “ CR ” ) 52.04. While such a failure would generally waive an objection about insufficient findings , custody, including counseling decisions, is an exception under the precedents cited here by the Court

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- Jamie p oints out that in Benton v. Sotingeanu , 450 S.W.3d 714 (Ky. App. 2014), the court held findings of fact and conclusions of law were unnecessary in an order resolving an impasse between joint custodians involving whether their child should have a passport. Id . at 717

- 18. But the Benton C ourt’ s decision in that regard was founded up on its conclusion that the mere issuance of a passport, standing alone, was not a matter affecting timesharing or custody, or one that modified a final order affecting those issues

. Id . Here m ental health decisions
for children are matters of custody

. A dditionally, by its plain terms, the family court’s “supplement to decree” o rder of September 27, 2021, supplemented and
thus modified t he family court’s dissolution decree of September 23, 2021 , regarding a custody issue

.

T he overriding principle in custody matters is that the best interest of each child must be served by the family court ’ s decision. Burchell , 684 S.W.2d at 300. “ As to what constitutes the best interest of the child, this Court reviews any
factual findings under the clearly erroneous standard; any decisions based upon said facts are reviewed under an abuse of discretion standard. ” Burch v. Lipscomb , 638 S.W.3d 460, 463 (Ky. App. 2021) (citations omitted). However, absent any written factual findings or an oral recitation that the family court’s decision comports with the children’s best interests, this Court cannot properly review the family court’ s order.- 7

- Accordingly, we VACATE the family court’s decision, as set forth in
its order , to require the children to participate in counseling. On REMAND, the family court shall render an order consistent with the requirements of Anderson , 350 S.W.3d 453, and Keifer , 354 S.W.3d 123

. In compliance with this mandate, the family court may rely upon the evidence that was presented at the hearing previously held , or it may conduct any further proceedings it deem s necessary.

Because we are remanding the case a nd to avoid any future appeal issues, we counsel against even unintended d elegat ion to any third party the responsibility for resolving issues affecting the best interests of the children

. Warawa , 587 S.W.3d at 637. This would include any determination o f when any such counseling or therapy should end. See Burchell , 684 S.W.2d at 300 (explaining, “Once the parents have abdicated their role as custodians to the trial court, its decision is binding on the parties until it is shown [to the trial court] that the decision is detrimental to the child physically or emotionally , or is no longer in his best interest.” )

. A schedule for a court review of the counseling may replace an
open - ended continuation of therapy until a counselor feels it is no lon ger needed.

Finally, we note Aaron’s primary complaint throughout the September 14, 2021 , evidentiary hearing w as that there was no objective assessment from any qualified professional that the children would benefit from counseling , or what
amount of c ounseling they would benefit from, or what the duration of the- 8

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counseling should be . Aaron testified during the evidentiary hearing that he was “not against” the family court invoking its permissive authority to order a psychological assessment of the chil dren to consider counseling

. The family court may now have information available about counseling already undertaken or being considered to support specific written findings of fact

.

For the reasons stated, the order of the Boone Family Court is VACATED, and this case is REMANDED for proceedings consistent with this Opinion.

ALL CONCUR

.

BRIEF S FOR APPELLANT: Brandy K. Lawrence Fort Wright, Kentucky BRIEF FOR APPELLEE: Jessica L. Beauchamp Cincinnati, Ohio