RENDERED: AUGUST 7, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0306-MR
FAITH SHAWHAN APPELLANT
APPEAL FROM CUMBERLAND CIRCUIT COURT
v. HONORABLE DAVID WILLIAMS, JUDGE
ACTION NO. 24-CI-00058
TUCKER PARISH APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND A. JONES,
JUDGES.
JONES, A., JUDGE: Faith Shawhan (“Mother”) appeals from the Cumberland
Circuit Court’s December 30 2024, Findings of Fact, Conclusions of Law, and
Order establishing custody and timesharing for the two minor children she shares
with Tucker Parrish (“Father”). Mother does not challenge the trial court’s factual findings. Rather, she argues that the trial court misapplied KRS1 403.270 by
failing to first apply the presumption in favor of equal parenting time.
Although Mother disagrees with the weight the family court assigned
to certain evidence and the conclusions it ultimately reached, those determinations
were within the trial court’s broad discretion. Because the trial court applied the
correct legal standard, made findings supported by substantial evidence, and did
not manifestly abuse its discretion in fashioning a timesharing schedule it
determined to be in the children’s best interests, we affirm.
II. BACKGROUND
Mother and Father are the parents of two minor children: M.T.P., born
in December 2021, and C.P.P., born in May 2024. The parties were never married
but previously lived together and jointly cared for the children. Around the end of
January 2024, after the parties discontinued their relationship, M.T.P. began living
with Father and his family, while C.P.P. stayed with Mother.2
On October 4, 2024, Father filed a petition in Cumberland Circuit
Court seeking custody and timesharing orders concerning the children. The trial
court conducted an evidentiary hearing on October 29, 2024, at which it heard
1
Kentucky Revised Statutes.
2
Mother also has two older children from prior relationships. At the time of the hearing, her son resided with her, while her daughter did not, having previously been removed from Mother’s care following a Cabinet investigation.
-2-testimony from Mother, Father, social workers, law enforcement, and various
family members and acquaintances of the parties.
The evidence presented at the hearing showed that Father was
employed, maintained stable housing with his grandparents, and had substantial
family support available to assist with childcare. Since January 2024, M.T.P. had
primarily resided with Father in a multigenerational household where she enjoyed
a close relationship with Father and his extended family. The testimony indicated
that the family maintained a regular routine that included shared meals, church
attendance, and other family activities. Father testified that he was actively
involved in M.T.P.’s daily care, and no witness expressed concerns regarding his
ability to provide for her physical, emotional, or developmental needs. Although
Father had a prior conviction for possession of methamphetamine and remained on
probation, he testified that he had been sober for approximately fifteen months.
Father also testified that he and Mother have difficulty coparenting
and communicating. Although the parties had been involved in physical
altercations during their relationship, Father testified that neither had caused
serious physical injury to the other. Due to the parties’ ongoing conflict, Father’s
grandmother frequently serves as an intermediary for communications concerning
the children.
-3-The evidence further showed that Mother had experienced significant
instability in both her housing and employment. At the time of the hearing, Mother
was residing with her former stepmother, an arrangement that had begun less than
one week earlier. Before moving there, Mother had lived with an acquaintance,
Jennifer Jessie, and then with her father. Mother testified that she was performing
part-time cleaning work and was participating in a job-training program that she
hoped would lead to full-time employment in about three months. Mother also
acknowledged prior substance abuse issues, testified that she possessed a medical
marijuana card, and admitted continued marijuana use. However, she denied that
she did so around the children.3
The trial court also heard evidence regarding Mother’s supervision
and care of the children, her relationship with Father’s family, and her financial
instability. Evidence was presented that Mother had entered guilty pleas to
harassing communications charges involving Father’s mother and grandmother.
Additional testimony raised concerns regarding Mother’s judgment, supervision of
children in her care, and use of marijuana while pregnant with C.P.P. Other
witnesses disputed or minimized some of those concerns.
3
Mother’s former roommate, Jennifer Jessie, however, testified that she had observed Mother smoking marijuana around C.P.P.
-4-The trial court also heard evidence that Mother was involved in an
ongoing Cabinet matter arising from concerns regarding the supervision of
children in her care. During the investigation, Mother’s twelve-year-old son was
found home alone, and marijuana was discovered in the residence in close
proximity to the boy. Mother testified that she had substantially complied with the
resulting case plan, with housing remaining the principal unresolved issue.
The trial court also heard testimony from Cabinet employees Bailey
Scott and Lori Slaughter, both of whom testified they had no current concerns
regarding either parent’s ability to care for the children and believed the children’s
basic needs were being met.
Following the hearing, the trial court awarded the parties joint
custody, designated Father as the children’s primary residential parent, and
established a parenting schedule under which Mother would exercise parenting
time every Tuesday from 4:00 p.m. until 6:00 p.m.; on alternating weekends from
10:00 a.m. until 4:00 p.m. on Saturday during one week; and from 12:00 p.m. until
6:00 p.m. on Sunday during the alternate week, together with holiday parenting
time as set forth in the order. The order was accompanied by detailed findings of
fact and conclusions of law explaining the trial court’s decision. This appeal
followed.
-5-II. STANDARD OF REVIEW
As an initial matter, we note that Mother does not challenge the trial
court’s factual findings. Indeed, she expressly acknowledges in her brief that “the
trial court’s findings of fact were correct.” Rather, Mother contends that the trial
court improperly applied KRS 403.270 to those facts when fashioning a parentingtime schedule. In doing so, Mother primarily disputes the significance the trial
court attributed to certain evidence and the weight it afforded the testimony of
various witnesses.
Questions of law, including whether the trial court correctly applied
KRS 403.270, are reviewed de novo. Kentucky Properties Holding, LLC v. Sproul,
507 S.W.3d 563, 569 (Ky. 2016). However, once the trial court has made findings
supported by substantial evidence and applied the correct legal standard, we must
be highly deferential to its determination regarding parenting time and may reverse
only if it constitutes “a manifest abuse of discretion.” Hempel v. Hempel, 380
S.W.3d 549, 551 (Ky. App. 2012); McGregor v. McGregor, 334 S.W.3d 113, 116
(Ky. App. 2011) (“This Court will only reverse a trial court’s determinations
regarding a parenting schedule if they constitute a manifest abuse of discretion or
were clearly erroneous in light of the facts of the case.”). Under a manifest abuse
of discretion standard, the trial court’s decision will be affirmed unless no
reasonable judge would have reached the same conclusion. Id.
-6-II. ANALYSIS
A. Mother’s Request for Judicial Notice of Subsequent Events
Before addressing Mother’s substantive arguments, we first consider
her request for this Court to take judicial notice of information concerning events
that allegedly occurred after the trial court entered the order under review,
including subsequent criminal charges involving Father and witness Jennifer Jessie
and Father’s incarceration. See KRE4 201.
“While judicial notice may be taken at any stage of the proceedings,
KRE 201(f), it is to be used cautiously by appellate courts.” Commonwealth,
Cabinet for Health & Fam. Servs. v. Ivy, 353 S.W.3d 324, 335 (Ky. 2011) (internal
quotation marks omitted). The events identified by Mother occurred after the
evidentiary hearing and after the trial court entered the order presently under
review. The trial court did not possess a crystal ball, and we will not engage in
speculation regarding how subsequent events might have affected its decision had
they occurred earlier. Our review is confined to the record actually created below
and the issues presented to the trial court. Id.
This is not to say that Mother is without a remedy should subsequent
events materially affect the children’s best interests. Pursuant to KRS 403.320(3),
a party may seek modification of a parenting-time order based upon changed
4
Kentucky Rules of Evidence.
-7-circumstances arising after entry of the original order, and Mother may appeal any
such order that is adverse to her. Likewise, should further proceedings occur, the
admissibility of any subsequent convictions for impeachment purposes will be
governed by the Kentucky Rules of Evidence and determined by the trial court in
the first instance. We therefore confine our review to the record before the trial
court at the time it rendered the decision under review. Dunn v. Solomon Found.,
723 S.W.3d 711, 718 (Ky. 2025).
B. The Trial Court Properly Applied KRS 403.270
Mother’s sole argument on appeal is that the trial court failed to
properly apply KRS 403.270 when determining custody and parenting time.
Specifically, Mother contends that the trial court failed to begin its analysis with
the statutory presumption that joint custody and equally shared parenting time were
in the children’s best interests and instead proceeded directly to an evaluation of
the statutory best-interest factors. According to Mother, this error infected the
remainder of the trial court’s analysis and resulted in an improperly restrictive
parenting-time schedule.
Father responds that the trial court correctly recognized and applied
the statutory presumption, thoroughly considered the factors set forth in KRS
403.270(4), and ultimately determined that he had rebutted the presumption by a
preponderance of the evidence. Father maintains that Mother’s argument is, in
-8-substance, a disagreement with the weight the trial court assigned to the evidence
and the conclusions it drew therefrom.
KRS 403.270(2) provides, in relevant part: “Subject to KRS 403.315,
there shall be a presumption, rebuttable by a preponderance of evidence, that joint
custody and equally shared parenting time is in the best interests of the child.”
In his petition, Father expressly asserted that the presumption had been rebutted
and requested that the trial court award a parenting schedule that was not equally
shared. To determine whether Father had met his burden, the trial court was
necessarily required to evaluate the evidence in light of the statutory best-interest
factors set forth in KRS 403.270(4).
Contrary to Mother’s argument, a careful review of the trial court’s
findings of fact, conclusions of law, and order demonstrates that it applied the
statutory presumption. The trial court began its conclusions of law by stating that
“[t]his Court is to determine the best interest of the children with equal
consideration given to each parent.” (Emphasis added.) While the trial court did
not employ the precise language of KRS 403.270, its statement reflects the premise
underlying the statutory presumption: that neither parent begins the analysis with
an advantage over the other. More importantly, after conducting a detailed review
of the statutory factors, the trial court expressly concluded that Father had
“overcome the presumption of 50/50 timesharing.”
-9-The trial court’s findings reveal that it did not disregard the
presumption; rather, it concluded that the presumption had been rebutted. In
reaching that determination, the trial court relied upon a number of factors,
including the parties’ inability to effectively coparent, Mother’s housing and
employment instability, Mother’s harassment of Father’s family members, the
children’s ages, Father’s demonstrated stability, and evidence concerning Mother’s
judgment and parenting decisions. Whether another factfinder might have weighed
those considerations differently is not the question before us.
Indeed, Mother does not contend that any of these findings are clearly
erroneous. Rather, she argues that the trial court should have afforded greater
weight to the testimony of the Cabinet witnesses and less weight to the testimony
of Father and his witnesses. However, the weighing of evidence and assessment of
witness credibility are matters committed to the trial court’s discretion. Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003).
We are not permitted to reweigh that evidence on appeal. Moreover, it
is important to recognize, as our predecessor Court observed decades ago, that a
child’s “interest and welfare” encompasses considerations beyond whether a parent
is able to provide food, shelter, and clothing. Gaffeney v. Gaffeney, 223 S.W.2d
583 (Ky. 1949).
-10-Mother also relies heavily upon several unpublished opinions that she
contends support reversal. Ultimately, however, custody and parenting time “must
be determined by the facts in each particular case.” Aubrey v. Aubrey, 198 S.W.2d
209, 210 (Ky. 1946). The unpublished decisions cited by Mother turn upon their
own particular facts and do not alter the standards governing our review. Our
lodestar remains the text of KRS 403.270.
Here, the trial court carefully addressed each statutory factor and
explained the evidence it found persuasive. Although Mother disagrees with the
trial court’s ultimate conclusions, those conclusions were supported by evidence
presented at the hearing. The trial court heard testimony that Mother had
experienced significant housing instability, that concerns had been raised regarding
her supervision of children in her care, that she continued to use marijuana,5 that
she had engaged in harassing conduct toward Father’s family members, and that
the parties were unable to effectively coparent. The trial court also heard evidence
5
Pursuant to KRS 218B.045(2), a medical cannabis cardholder “otherwise entitled to custody of, or visitation time or parenting time with, a minor child shall not be denied that right, and there shall be no presumption of abuse, neglect, or dependency for conduct permitted under this chapter unless the person’s actions in relation to medicinal cannabis created an unreasonable danger to the safety of the minor child as established by clear and convincing evidence.” Our reference to Mother’s marijuana use should not be construed as suggesting that her possession of a medical cannabis card, standing alone, supports a restriction on custody or parenting time. Rather, the trial court heard testimony that Mother smoked marijuana in a closed bedroom while C.P.P. was present and evidence that marijuana was discovered in proximity to Mother’s son when he was found home alone during a Cabinet investigation. The trial court was entitled to consider that evidence, together with all other evidence bearing upon the children’s best interests.
-11-that Father had established a stable home environment, maintained steady
employment, enjoyed substantial family support, and had successfully cared for
M.T.P. for an extended period. It was the trial court’s prerogative to determine
what weight should be afforded that evidence and, based upon its assessment of the
evidence as a whole, to conclude that Father had rebutted the presumption in favor
of equal parenting time.
Again, we reiterate that our review of the trial court’s findings of fact,
conclusions of law, and order as a whole convinces us that the trial court began its
analysis with the presumption required by KRS 403.270. While it may have been
preferable for the trial court to expressly state at the outset that it was applying the
statutory presumption in favor of joint custody and equal parenting time, the law
does not require trial courts to employ magic words or follow a prescribed script.
Appellate review focuses on whether the trial court applied the correct legal
standard, not whether it recited that standard in a particular order. We place
substance over form. Here, the trial court’s repeated references to equal
consideration of the parents, its detailed analysis of the statutory best-interest
factors, and its ultimate conclusion that Father had rebutted the presumption leave
no doubt that the trial court understood and correctly applied the governing statute.
-12-C. The Parenting-Time Schedule Was Not a Manifest Abuse of Discretion
Finally, while the parenting-time schedule awarded to Mother is less
than equal, KRS 403.270 does not mandate any particular schedule. Rather, the
statute provides that “[i]f a deviation from equal parenting time is warranted, the
court shall construct a parenting time schedule which maximizes the time each
parent or de facto custodian has with the child and is consistent with ensuring the
child’s welfare.” KRS 403.270(2). Once the trial court determined that Father had
rebutted the statutory presumption by a preponderance of the evidence, it remained
the trial court’s responsibility to fashion a parenting-time schedule that maximized
each parent’s time with the children while remaining consistent with their welfare.
The statute provides no formula for doing so, nor does it prescribe a minimum or
maximum number of hours, days, weekends, or overnights that must be awarded in
any particular case.
Reasonable minds may differ regarding the amount of parenting time
that should be awarded once a court concludes that equal parenting time is no
longer in a child’s best interests. A disappointed litigant can almost always argue
that an additional day should have been awarded here, an overnight added there, or
a weekend extended elsewhere. Such determinations, however, are precisely the
type of fact-intensive judgments trial courts are uniquely situated to make. For that
reason, our review is limited to whether the parenting-time schedule constitutes a
-13-manifest abuse of discretion, not whether we might have fashioned a different
schedule had we been sitting as the trial court.
The schedule imposed by the trial court is unquestionably restrictive.
However, the trial court’s findings reflect that it viewed Mother as presenting
ongoing concerns relating to housing instability, lapses in supervision of children
in her care, and the misuse of resources intended to meet the children’s needs. The
trial court also expressed concern regarding Mother’s judgment as it related to
marijuana use and storage around children. At the same time, the trial court found
that Father provided a more stable and structured environment for the children.
Given those findings, we cannot say it was unreasonable for the trial
court to conclude that Mother should receive less than equal parenting time.
Importantly, the trial court did not eliminate Mother’s role in the children’s lives.
Rather, it awarded her recurring weekly parenting time that it reasonably believed
would permit her to maintain and foster her relationship with the children while
addressing the concerns identified in its findings. Whether another judge might
have awarded somewhat more, or somewhat less, parenting time is beside the
point. The question before us is not whether the trial court selected the best
conceivable schedule, but whether the schedule it selected falls within the range of
reasonable outcomes permitted by the evidence and the law. We conclude that it
does.
-14-Finally, although the order establishes a permanent parenting-time
schedule, it is not etched in stone. Parenting-time determinations remain subject to
modification as circumstances change. Should Mother achieve greater stability in
her housing, employment, or overall circumstances, she remains free to seek
modification pursuant to KRS 403.320. The trial court’s order reflects its
assessment of the children’s best interests based upon the evidence before it at the
time of the hearing. On this record, we find no manifest abuse of discretion.
IV. CONCLUSION
For the foregoing reasons, the order of the Cumberland Circuit Court
is AFFIRMED.
THOMPSON, CHIEF JUDGE, CONCURS.
CALDWELL, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
CALDWELL, JUDGE, DISSENTING: I respectfully dissent. While I recognize
that the trial court has broad discretion in resolving timesharing matters, I conclude
the trial court manifestly abused its discretion here.
A trial court abuses its discretion when its decision is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Ryan v. Ryan, 473
S.W.3d 637, 639 (Ky. App. 2015) (quoting Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000)) (internal quotation marks omitted).
-15-The trial court’s decision here is not supported by sound legal
principles. KRS 403.270(2) expressly states that there is a rebuttable presumption
that joint custody and equal timesharing is in a child’s best interest. It also requires
that: “If a deviation from equal parenting time is warranted, the court shall
construct a parenting time schedule which maximizes the time each parent or de
facto custodian has with the child and is consistent with ensuring the child’s
welfare.” In my view, the trial court’s timesharing order did not substantively
comply with these requirements in KRS 403.270(2).
The trial court’s timesharing order does not mention the rebuttable
presumption in KRS 403.270(2) other than cursorily stating in its conclusion that
the presumption for equal timesharing was rebutted due to the children’s age. Yet
there is no valid authority which allows for the rebuttable presumption of equal
timesharing being in the children’s best interest to be overcome simply by the
children’s age. For example, the tender years presumption, which favored mothers
of very young children when the parents were equally fit, was abrogated by statute
nearly half a century ago. See Jones v. Jones, 577 S.W.2d 43, 45 n.1 (Ky. App.
1979) (noting 1978 amendment to KRS 403.270 abrogated tender years
presumption). More importantly, the version of KRS 403.270(2) in effect during
these proceedings does not expressly limit the applicability of the rebuttable
-16-presumption of equal timesharing being in a child’s best interest to children of any
particular age.
Also, the trial court’s order does not even mention its statutory
obligation to maximize the timesharing of a parent not awarded equal timesharing
in a manner consistent with the children’s best interests. Nor does the order
articulate why, assuming that equal timesharing is not in the children’s best
interest, the maximum parenting time it could award Mother consistent with the
children’s best interests is for just eight hours each week. This lack of articulation
about why the trial court saw fit to limit Mother’s timesharing to just eight hours
per week is especially concerning given the fact that Mother was the younger
child’s primary caregiver prior to the modification.
Furthermore, the instant case is substantially distinguishable from
Barnett v. White, 584 S.W.3d 755, 756 (Ky. App. 2019), in which we upheld a less
than equal timesharing order. Notably, the parent who was not named the primary
residential custodian in Barnett received “two overnights a week which is
sufficient to promote his relationship with child while promoting stability for child
by continuing [other parent’s] role as her primary caregiver.” Id. at 762. Here,
Mother was previously the younger child’s primary caregiver, yet the trial court
awarded Mother substantially less parenting time than the parent in Barnett who
previously had only limited contact with the child. See id. at 756, 760 (noting
-17-appealing parent previously had temporary supervised visitation every other week
and had gone four months without visiting the child at one point).
Currently, only limited published precedent exists regarding the
application of the obligation to maximize the parenting time of a parent awarded
less than equal timesharing under KRS 403.270(2) (as amended in 2018). Yet this
case is also substantially distinguishable from non-binding, unpublished precedent
in which an unequal timesharing arrangement was affirmed despite an appellant’s
claims that the trial court failed to maximize his/her parenting time.6
I further note that the majority Opinion explicitly states that the
amount of timesharing awarded to Mother is restrictive. Yet the trial court made
no finding that spending time with Mother would seriously endanger either child’s
health. While perhaps the serious endangerment standard set forth in KRS
403.320(1) and KRS 403.320(3) does not expressly apply to an initial custody and
timesharing determination in which the parties share joint custody as opposed to an
initial award of sole custody to the other parent or a modification of timesharing, I
still view the trial court’s award of extremely limited timesharing of just eight
6
See Nelson v. Jennings, No. 2019-CA-1522-ME, 2020 WL 6112915, at *8–9 (Ky. App. Oct. 16, 2020) (unpublished) (upholding less than equal timesharing despite assertion of failure to maximize parent’s time with child since parent received “lion’s share” of weekend time with child and parent’s weekday parenting time was tailored to parent’s work schedule and trial court concluded child benefitted from consistency in not altering prior timesharing schedule). Although this unpublished opinion is not binding authority pursuant to Kentucky Rules of Appellate Procedure (“RAP”) 40(D)(1) and RAP 41(A), we may consider it as persuasive authority.
-18-hours per week for Mother as an abuse of its discretion given the lack of finding of
serious endangerment.7 After all, how can it be fair for a joint custodian to be
entitled to less protection against unduly restricted time with his/her child/ren than
a non-custodial parent and be deprived of non-restrictive parenting time without a
finding of serious endangerment?
Thus, I would, at a minimum, vacate the trial court’s timesharing
order with directions to construct a timesharing schedule which maximizes
Mother’s parenting time consistent with the children’s best interests.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Alison Nicole Adkins Holly Long Parrigin
Somerset, Kentucky Burkesville, Kentucky
Evan B. Smith
Prestonsburg, Kentucky
7
See Valencia v. Sherrill, No. 2018-CA-001636-ME, 2019 WL 4387381, at *4–5 (Ky. App. Sep. 13, 2019) (unpublished) (upholding restricted visitation for non-custodial parent due to properly supported findings adequately addressing whether child’s health was seriously endangered by visitation). Accord Allen v. Amos, No. 2018-CA-001592-ME, 2019 WL 5293654, at *3 (Ky. App. Oct. 18, 2019) (unpublished).
-19-