NOT TO BE PUBLISHED

OPINION

MAZE, JUDGE.

D.A.S. (Mother) appeals from an order by the Franklin Family Court which lifted prior restrictions on visitation between J.L.H. (Father) and the parties' child. Mother argues that the trial court gave improper priority to the opinions of Father's therapist over those of the custodial evaluator and that the court failed to specifically address the best interests of the child. Under the circumstances presented in this case, we cannot find that the trial court abused its discretion by considering the therapist's opinion, by declining to require an additional evaluation by the custodial evaluator, or by lifting the restrictions on Father's visitation. Hence, we affirm.

D.A.S. and J.L.H. are the biological parents of B.C.H., who was born in November 2007. The parties dated for several years, but never married. Following their separation in May of 2010, Father filed a verified petition admitting paternity and seeking joint custody of the child. Mother objected to joint custody, alleging that Father had a violent temper, a gambling problem and habitually viewed disturbing and possibly illegal pornography.

On August 17, 2010, the trial court entered an agreed order providing for temporary joint custody but Father only having supervised visitation. The parties also agreed to submit to custodial and psychological evaluations by Dr. David Feinberg, a licensed clinical psychiatrist. In addition, Mother made several reports to law enforcement that Father had downloaded and viewed illegal pornography. After several investigations the Kentucky State Police found no evidence that Father had engaged in illegal activity.

While the criminal investigations were pending, Mother and Father met with Dr. Feinberg for the custodial and psychological evaluations. His reports were submitted to the trial court prior to the evidentiary hearing on June 23, 2011. Dr. Feinberg expressed strong concerns about Father's poor personal judgment, his relationship difficulties, and particularly his pornography use. Dr. Feinberg recommended that timesharing between Father and B.C.H. should continue to be supervised "for the time being." Dr. Feinberg further recommended that Father engage in individual therapy for at least a month. Finally, Dr. Feinberg recommended that Father return to him for additional evaluation after receiving such therapy.

Father was also referred to David Breeding, a licensed marriage and family therapist, for additional evaluation regarding his pornography use. Mother also provided copies of the pornographic imagery and material to Dr. Feinberg, who shared them with Mr. Breeding for his evaluation. Mr. Breeding reviewed this material, the criminal investigation records, and conducted several interviews with Father. He also conducted several evaluations of Father similar to those given to sex offenders.

Mr. Breeding testified that Father lacked a number of the characteristics typically present in convicted sex offenders. He testified that Father did not present signs of antisocial personality disorder, and his near-daily contact with other children without any apparent incidence of abused suggested that Father was not at high risk for committing a sex offense. He concluded that there was no clinical basis for placing restrictions on Father's timesharing.

Based upon the reports of Dr. Feinberg and Mr. Breeding and other testimony presented at the evidentiary hearing, the trial court continued joint custody with Father having only supervised timesharing with B.C.H. The order further provided:

After entry of this order, Father contacted Dr. Feinberg's office for a referral for counseling. After several attempts, Father was referred to Shane Wilson, a Licensed Professional Clinical Counselor (LPCC), and National Certified Counselor (NCC). Mr. Wilson conducted a Psychosexual Evaluation of Father and sixteen sessions of therapy. In his report to the court, Mr. Wilson noted that Father had some mental health issues and may benefit from additional therapy. However, Mr. Wilson concluded that Father did not require further counseling and should not be limited to supervised visitation.

Dr. Feinberg reviewed Mr. Wilson's report and took issue with his conclusions. In particular, Dr. Feinberg expressed concerns that Mr. Wilson failed to give sufficient weight to Father's use of pornography and that Mr. Wilson overstepped his role in recommending unsupervised visitation. Dr. Feinberg also stated that he had not seen Mr. Wilson's records of Father's therapy sessions and could not determine whether Father had undergone any of the treatment which he previously recommended.

Father submitted Mr. Wilson's report to the court in support of his motion for unsupervised visitation. Mother countered with Dr. Feinberg's letter and testimony stating his concerns. After reviewing Mr. Wilson's report, Dr. Feinberg's response and the records of Father's supervised visitations with B.C.H., the trial court found that Father had undergone the therapy which had been previously directed. The trial court further found no evidence that Father posed a risk of harm to the child. Consequently, the court concluded that supervised timesharing was no longer necessary and directed that unsupervised timesharing should resume on a gradual scale. Mother filed a motion to alter, amend or vacate the order, primarily noting Dr. Feinberg's objections. The trial court denied the motion on May 4, 2012 and Mother now appeals.

Mother presents three grounds for challenging the trial court's decision to allow Father's unsupervised timesharing. First, Mother argues that Mr. Wilson was not qualified to testify as a custodial evaluator, and that the trial court should have given more weight to Dr. Feinberg's concerns. Second, Mother argues that the trial court failed to give sufficient weight to Dr. Feinberg's opinion without allowing him an opportunity to conduct a follow-up evaluation of Father or to review Mr. Wilson's therapy notes. And third, Mother contends that the trial court failed to make findings that a resumption of unsupervised timesharing would be in the best interests of B.C.H.

The standard of review regarding child custody issues is whether the trial court's decision was clearly erroneous and constituted an abuse of discretion. Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974). A trial court's findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01. "[F]indings of fact are clearly erroneous only if they are manifestly against the weight of the evidence." Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). Based upon properly supported factual findings, this Court reviews the trial court's decisions regarding custody and visitation for abuse of discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009). Likewise, we also review the trial court's evidentiary rulings for abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). "Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." Sherfey v. Sherfey, 74 S.W.3d 777, 783 (Ky. App. 2002), overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008).

In addressing these factual and discretionary matters, we also look to KRS 403.320(3), which provides that "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health." In the current case, the trial court temporarily restricted visitation based upon Mother's allegations that Father had engaged in a habit of viewing disturbing and violent pornography, as well as Dr. Feinberg's opinion that Father's conduct is cause for serious concern. The trial court lifted these restrictions after Father underwent therapy with Mr. Wilson as previously directed by the court. In making this determination, the trial court relied heavily on the lack of any evidence that Father had engaged in criminal conduct, and upon Mr. Wilson's opinion that Father did not pose as risk of harm to B.C.H. or to any other minor.

Mother concedes that Mr. Wilson was qualified as an expert to testify as Father's personal therapist. However, she contends that he was not qualified to testify as a custodial evaluator. Mother further argues that the trial court should have given more weight to Dr. Feinberg. Along similar lines, Mother points out that the trial court's first order directed that Dr. Feinberg should review Father's progress in therapy before any resumption of unsupervised visitation. Since Dr. Feinberg did not have access to Mr. Wilson's therapy notes and was not given an opportunity to re-evaluate Father, Mother argues that the trial court abused its discretion by relying primarily on Mr. Wilson's opinion.

In making a custody or visitation determination, a family court "may seek the advice of professional personnel. . . ." KRS 403.290(2). In addition, KRS 403.300(2) authorizes a trial court to appoint a custodial evaluator and to consider the evaluator's report as evidence in making custodial arrangements. But while Dr. Feinberg's opinions and conclusions should be given considerable weight, the trial court was not obligated to accept his recommendations regarding custody. Rather, the weight to be given such testimony is for the trial court to determine. CR 52.01.

Here, Dr. Feinberg's initial conclusions and concerns were based upon a potential risk of harm which he believed that Father posed. There had never been any evidence that Father has engaged in improper conduct toward B.C.H. or any other minor. Furthermore, previous evaluations did not show any evidence that Father had a personality disorder or a propensity toward committing sexual offenses. In addition, several thorough investigations by various law-enforcement agencies did not reveal any evidence of criminal activity. But out of an abundance of caution, Dr. Feinberg's recommended supervised visitation until Father underwent additional therapy.

Father complied with the trial court's prior order and has undergone therapy as previously directed. Mr. Wilson, a therapist referred by Dr. Feinberg's office, conducted the therapy and evaluation of Father. It may have been a better practice for the trial court to require Father to submit to an additional evaluation by Dr. Feinberg himself. However, such matters are typically within the sound discretion of the trial court.

While Dr. Feinberg takes issue with Mr. Wilson's conclusions, he does not point to any additional evidence supporting his concerns about Father. Under KRS 403.320(1), the party seeking to restrict visitation has the burden of proving that "visitation would endanger seriously the child's physical, mental, moral, or emotional health." If there were some other evidence substantiating Dr. Feinberg's concerns, then we might agree with Mother that an additional evaluation was necessary. But in the absence of any evidence, the trial court had no basis to restrict Father's visitation further. The trial court properly considered the best interests of the child when it directed a gradual re-introduction of unsupervised timesharing. Therefore, the trial court did not abuse its discretion in considering Mr. Wilson's report or in lifting the restrictions on Father's visitation.

Accordingly, the order of the Franklin Family Court is affirmed.

ALL CONCUR.