Kentucky Court of Appeals Reverses Family Court for Custody Modification Without Due Process
On August 29, 2025, the Kentucky Court of Appeals issued a significant unpublished opinion in White v. Cole, No. 2024-CA-0725-MR, reminding trial courts of their limits when modifying custody and their obligations to protect due process in family law cases. The Kentucky Court of Appeals reversed the Judge Lauren Ogden’s award of sole custody to the mother, holding that the modification was improper and unsupported by law.
The Stakes: A Decade of Joint Custody Suddenly Revoked
Dad and Mom had shared joint custody of their child since 2014, with numerous disputes over parenting time. In 2024, after hearing motions concerning visitation schedules and contempt, the Jefferson Family Court went beyond the scope of the parties’ requests and unilaterally awarded sole custody to the mother. Importantly, Mom never filed a motion seeking sole custody.
The Court of Appeals held this was reversible error. Under KRS 403.340 and KRS 403.270, a trial court may only modify custody after proper pleadings, notice, and findings on statutory best-interest factors. The appellate court emphasized that custody cannot be changed sua sponte (on the court’s on initiative) and highlighted Kentucky’s statutory presumption in favor of joint custody.
Due Process and the Role of Friends of the Court
While the Court of Appeals had already to reverse the decision of sole custody for violating due process, the Court took the opportunity to provide important guidance to family courts regarding the role of court-appointed investigators such as Friends of the Court (FOC). Under KRS 403.300(3), an FOC must submit a written report and supporting materials at least ten days before a hearing. This ensures the parties have notice and a fair opportunity to respond.
In this case, the trial court allowed the FOC to testify even though neither party listed the FOC as a witness and no new report had been filed. The FOC also remained in the courtroom to hear a therapist’s testimony before offering opinions, violating KRE 615, Kentucky’s rule on separation of witnesses. The Court of Appeals warned that these practices raise serious due process concerns and directed trial courts to adhere strictly to statutory and evidentiary safeguards in future cases.
Why This Matters for Kentucky Families
This decision underscores two critical principles:
Custody cannot be modified without proper process. Parents are entitled to notice, an opportunity to be heard, and judicial findings grounded in Kentucky’s custody statutes. Courts may not impose relief that was never requested.
Due process applies to expert testimony and FOC involvement. Parents must be given advance notice of FOC reports and the chance to challenge them. Allowing FOCs to testify without reports or after hearing other witnesses undermines fairness and credibility in custody cases.
Key Takeaways
Kentucky law presumes joint custody and equal parenting time unless statutory standards justify modification.
Trial courts must strictly follow KRS 403.340 and KRS 403.270 when considering custody changes.
Friends of the Court must file reports in compliance with KRS 403.300(3), and trial courts must enforce witness separation rules under KRE 615.
Why This Opinion is Important
Although unpublished, White v. Cole serves as a strong reminder to family courts across Kentucky: due process is not optional. Custody decisions must be rooted in proper pleadings, statutory findings, and fair procedures. Parents navigating custody disputes should understand both their rights and their obligations—and that appellate courts will step in when trial courts overreach.
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If you are facing a custody dispute, modification action, or believe the trial court has violated your rights and you need an appeal in Kentucky, contact our office to discuss how this case may impact your rights and your family.