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RENDERED: APRIL 6, 2012; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2011-CA-000677-ME MICHELLE TURNER APPELLANT

v.

APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE CYNTHIA E. SANDERSON, JUDGE ACTION NO. 10-CI-00989

CHRISTOPHER GILBERT

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: TAYLOR, CHIEF JUDGE; KELLER, JUDGE; LAMBERT,1 SENIOR JUDGE. KELLER, JUDGE: Michelle Turner (Mother) appeals from an order of the McCracken Family Court denying her motion to modify custody and awarding

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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

permanent custody to Christopher Gilbert (Father) of the parties' minor child. For the following reasons, we affirm. FACTS Mother and Father were married in 2002 and had one child (the Child). In July 2006, the marriage between the parties was dissolved after they agreed on all issues, including joint custody of the Child. Although neither party was designated as the primary residential custodian, it is undisputed that the Child primarily resided with Mother, who subsequently remarried. In July 2009, Father filed for emergency custody in the McCracken Family Court based on an allegation that the Child had been sexually abused by Mother's step-son (the Step-Brother) while in Mother's care. The Child was seven years old at the time. By order entered on July 23, 2009, the family court awarded Father temporary custody of the Child. In May 2010, Mother filed a motion in the Ballard Circuit Court to modify custody and filed a second motion to modify custody in August 2010. Thereafter, Father filed a motion to transfer the case to the McCracken Family Court, which was granted. After the case was transferred, Father filed a motion for permanent custody, and the family court held a hearing on that motion and on Mother's motion to modify custody. Prior to the custody hearing, the family court appointed a guardian ad litem (GAL) who was present at the November hearing. We summarize the relevant testimony from the hearing below.

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Douglas Wells (Wells), a psychologist and clinical director at Child Watch Children's Advocacy Center in Paducah, Kentucky, testified that, prior to the hearing, he had seen the Child twenty-three times for counseling sessions. Wells testified that the Child told him that the Step-Brother did something bad to her, that he touched her in wrong places, and that he touched her on "her private part and her butt." Wells further testified that, until the last session, the Child was consistent about telling him that the Step-Brother did something bad to her. Wells explained that the Child had a visit with Mother before their last session. During the session, the Child told Wells that she made everything up and that Mother told her she had to tell the truth so that she could live with Mother. Wells testified that he believes the Step-Brother did sexually abuse the Child and is concerned that it could happen again. Additionally, Wells testified that he was present at the Step-Brother's criminal proceeding2 in Ballard District Court. During that proceeding, Wells was called into the courtroom to calm the Child after she had been called to testify. According to Wells, the Child became fearful, hid below the chair rail out of the eye-sight of the Step-Brother, and ultimately did not testify. The charges against the Step-Brother were apparently dismissed.

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We note that it is not clear from the record what charges were brought against the Step-Brother. However, it is undisputed that the charges were related to the allegation that the Step-Brother sexually abused the Child.

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Father testified that the Child has resided with him since July 2009, when he filed a motion for emergency custody. In addition to the Child, Father lives with his fianc

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