Kinnard v. Kinnard

43 P.3d 150 (2002)

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Nature of the Case

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Facts

H and SM were married on October 25, 1993. There were no children born of the marriage. H's two children from previous relationships resided with H and SM. H and SM separated in November 1999. H now lives with another woman, Rachel, who has an eleven-year-old daughter named Andrea. Rachel has made physical threats toward SM, on one occasion in the presence of Kristine. Kristine also reports that Rachel's daughter, Andrea, often hits her. In June 2000, H and Rachel required Kristine to write a letter to the custody investigator claiming that she did not want to live with SM and that 'her new mother' was Rachel. H and Rachel told Kristine to write a second letter in which she stated that she did not want to see SM anymore. Kristine later told the custody investigator that H and Rachel forced her to write the letters and instructed her on what to say and that the statements in the letters were not true. SM suffers from a severe degenerative joint disorder in her knees which is exacerbated by her weight. SM maintains that she stood in loco parentis to both Brandon and Kristine and requested primary physical custody of Brandon and joint physical custody of Kristine. A custody investigator ultimately concluded that SM was the psychological parent of Kristine and recommended that the parties share legal and physical custody of Kristine. H claims that pursuant to the United States Supreme Court's recent decision in Troxel v. Granville, SM bore the burden of proving that H is an unfit parent in order to maintain her claim to custody. The trial court found the evidence to be 'overwhelming,' even 'uncontradicted,' that SM holds the place of a mother in Kristine's life. The trial court awarded the parties shared custody but withheld the divorce decree until after Debra's surgery so that she could retain her health insurance. H appeals the award of shared custody and the order holding him liable for the costs of Debra's medical care for canceling her health coverage.