Brief Fact Summary. Mother protested a custody award that provided father with overnight visitation after father had been convicted of sexually molesting his stepdaughter and accused of molesting his daughter.
Synopsis of Rule of Law. The court must provide suitable protection in the best interests of the child, and cannot use a custody award as punishment against one party.
Mr. and Ms. Hanke divorced, with Ms. Hanke being granted custody of the parties’ child and Mr. Hanke being granted unsupervised bi-weekly four-hour visitations pending a mental health examination. Mr. Hanke had previously admitted sexually abusing his 11-year old stepchild. There was also overwhelming evidence of other instances of excessive punishment with sexual overtones. Mr. Hanke stated that he was drunk when the incident occurred, but he did not need therapy for alcoholism. He did have therapy for the sexual abuse incident. Mrs. Hanke was pregnant with the parties’ child at the time of separation and the separation occurred as soon as she learned that her 11 year old child had been sexually molested by Mr. Hanke. Criminal charges were brought against Mr. Hanke regarding the incident, and a plea bargain was entered into which provided for supervised visitation of the parties’ child. Following one of Mr. Hanke’s unsupervised visits, the child reported sexual abuse.
A doctor’s examination concluded that prior abuse could not be excluded as the reason for scarring in the child’s genital area.
A doctor evaluated Mr. Hanke pursuant to court order. He found that Mr. Hanke stated he abused his stepchild to get at her mother; that the stepchild was physically abused by him long before the sexual abuse; that Mr. Hanke should not be placed in situations alone with his child; that he should not continue to use alcohol; that he had not come to terms with his abuse of alcohol as a factor in the abuse of his stepchild. Ms. Hanke’s attorney, the attorney representing the Department of Social Services, and the attorney representing the child all requested supervised visitation. There was a small amount of contradictory evidence that Ms. Hanke was overreacting to the situation and that Mr. Hanke was not a danger to their child. The court initially ordered unsupervised visitation, then ordered overnight visitation, with one of four people close to Mr. Hanke to be presnt during visitation. The court refused to protect the child further, finding overnight visitation appropriate.
Issue. Did the court abuse its discretion by awarding overnight visitation to Mr. Hanke?
Held. The court’s decision was clearly wrong because it failed to at least provide a specific place for the supervised visitation designated to protect the child fully with supervisors satisfactory to all parties.
The trial court was obviously annoyed because Ms. Hanke moved to Kentucky with the child and was unwilling to allow visitation. However, the court’s primary responsibility was to protect the minor child, not to punish Ms. Hanke. Where there is evidence that a parent is justified in believing that the other parent is sexually abusing the child, it is inconceivable that that parent would surrender the child to the abusing parent without stringent safeguards.
Discussion. This case demonstrates that a court cannot use a custody award to punish a party, but rather must focus on the best interests of the child.