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Court of Appeals of Kentucky.


NO. 2011–CA–001815–ME

Decided: June 01, 2012




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Appellant, Stephanie Kelsay, appeals from orders of the Adair Circuit Court designating Appellees, Johnny and Melissa Richards, as de facto custodians and awarding the parties joint custody of Appellant's minor child, J.R.K. For the reasons set forth herein, we vacate the lower court's Orders and remand for additional proceedings.

Stephanie and Appellee, James Kelsay, are the natural parents of one minor child, J.R.K. In May 2009, the parties separated Double amid domestic violence allegations, and J.R.K. began staying with the Richards, who are Stephanie's natural father and step-mother.   In June 2010, the Richards filed a petition in the Adair Circuit Court for de facto custodian designation and for temporary custody of J.R.K. James thereafter filed an answer wherein he disputed the Richards' de facto status and sought custody of J.R.K.

A hearing was held on June 29, 2010, wherein the Richards and James, through their counsel, stipulated that for the previous year, J.R.K. had spent Friday through Monday of each week with James, but the remainder of the time with the Richards.   They further agreed that each provided financial support for J.R.K. while he was with them.   Essentially the Richards and James sought to maintain the status quo.   Stephanie, however, who was unrepresented during the hearing, claimed that she had never intended to permanently leave J.R.K. in the Richards' custody and that her attempts to see him had been thwarted by the Richards.   Stephanie alleged that her father threatened criminal charges if she attempted to retrieve J.R.K.

By order entered July 27, 2010, the trial court determined that the Richards had been the primary caregivers and financial supporters for J.R.K. in excess of one year and thus had attained de facto custodian status pursuant to KRS 403.270.   The court awarded the Richards temporary custody of J.R.K. and granted both James and Stephanie visitation.

Eventually, Stephanie was able to retain counsel and, pursuant to a January 2011 agreed order, was permitted to file a late answer.   In February 2011, Stephanie filed her answer as well as a motion to alter, amend or vacate the trial court's July 27, 2010 order.   Stephanie asserted that the Richards had not met the requirements of de facto custodianship and, in fact, had intentionally interfered with her parental rights by denying her access to J.R.K. Stephanie's motion was denied and the matter was set for a final custody hearing.

Subsequently, during the final hearing, Stephanie again sought to challenge the Richards' designation as de facto custodians.   The trial court ruled that once the status is awarded, it is permanent and cannot be modified.   On September 2, 2011, the trial court entered findings of fact and conclusions of law granting permanent joint custody of J.R.K. to the Richards, James and Stephanie, with the Richards being designated as the primary residential custodians.   Stephanie and James were awarded alternate weekend visitation.   Following the denial of Stephanie's motion for more specific findings, she appealed to this Court as a matter of right.

Stephanie first argues on appeal that the trial court violated both KRE 603 and KRS 403.270 during the initial June 29, 2010, hearing when, having sworn no witnesses, the court accepted as evidence mere assertions by counsel and the Appellees.   Our review of the video confirms that the hearing occurred during the court's regular motion hour.   The matter was moved to the end of the docket, at which time the parties and counsel essentially discussed the case with the court.   As previously noted, James's counsel stated that his client would testify that the Richards took care of J.R.K during the week and he kept the child on the weekends.   Further, the Richards and James stipulated that each provided financial support while J.R.K was in their care.   When the trial court questioned Stephanie about her interaction with the parties and J.R.K., she tried to explain that her attempts to see J.R.K. were met with threats of harassment and trespassing by the Richards.   Stephanie stated that she never intended to permanently leave her child in the Richards' care and custody.

We are troubled by the hearing at issue.  KRE 603 provides that “[b]efore testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.”   Furthermore, KRS 403.270(1) provides:

(a) As used in this chapter and KRS 405.020, unless the context requires otherwise, “de facto custodian” means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age, and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services.   Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.

(b) A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection.   Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section and KRS ․ 405.020. (emphasis added)

Clearly, what may have begun as a simple discussion concerning a motion for temporary custody became a full blown evidentiary hearing on the Richards' qualifications as de facto custodians.   Indeed, the trial court subsequently entered an order making specific findings as to the Richards' status, as well as granting them temporary custody.   However, the Richards were required to prove by clear and convincing evidence that they met the statutory requirements of KRS 403.270.   For the trial court to conclude they met such burden without swearing witnesses or accepting competent evidence is palpable error.   KRE 103(e).

We likewise agree with Stephanie that the trial court erred in refusing to revisit the Richards' de facto custodian status at the May 13, 2011, final custody hearing.   At that time, Stephanie again moved the court to either set aside the designation or re-evaluate the Richard's qualifications as de facto custodians.   The trial court ruled, however, that once the status is designated, it “cannot be undone.”   Such is clearly not the law.

In Sullivan v. Tucker, 29 S.W.3d 805 (Ky.App.2000), the appellants maintained that, once established, de facto custodianship persists and gives the de facto custodian an “abiding right to participate in custody-related decisions affecting the child.”  Id. at 807.   Disagreeing with Appellant's interpretation of the KRS 403.270, a panel of this Court held that the language of the statute

suggests that the determination of de facto custodianship is a matter that must be addressed anew whenever the status is asserted.   This is not to say that a prior finding of de facto custodianship has no bearing on a subsequent determination.   Nor is it to say, as the trial court opined, that possession of the child is a necessary prerequisite to recognition of de facto custodian status.   It is only to say that a finding of de facto custodianship does not thereafter have the exclusively presumptive effect as [appellants] assert.

Id. at 808.

The courts of this Commonwealth have consistently recognized the superior right of natural parents to the care, custody, and control of their children as well as the constitutionally protected right of a parent to raise his or her own child.   See Moore v. Asente, 110 S.W.3d 336 (Ky.2003).   Before the family court may find that a caregiver has become the “de facto custodian” entitled to be placed on the same footing as a biological parent in a custody proceeding, the court must determine that the biological parent has abdicated the role of primary caregiver and financial supporter of the child for the required period of time.  London v. Collins, 242 S.W.3d 351 (Ky.App.2007).   In other words, “one must literally stand in the place of the natural parent to qualify as a de facto custodian.”  Consalvi v. Cawood, 63 S.W.3d 195, 198 (Ky.App.2001), abrogated on other grounds by Moore,110 S.W.3d 336.

When a non-parent does not meet the statutory standard of de facto custodian in KRS 403.270, the non-parent pursuing custody must prove either of the following two exceptions to a parent's superior right or entitlement to custody:  (1) that the parent is shown by clear and convincing evidence to be an unfit custodian, or (2) that the parent has waived his or her superior right to custody.  Mullins v. Picklesimer, 317 S.W.3d 569, 573–74 (Ky.2010).   “Because this is a right with both constitutional and statutory underpinnings, proof of waiver must be clear and convincing.”  Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky.2004).

We are of the opinion that Stephanie was denied the right to meaningfully challenge the Richards' improper designation as de facto custodians.   Certainly, she sets forth allegations that, if proven to be true, contradict any finding that she waived her superior right to custody of J.R.K. Accordingly, we conclude that further proceedings are warranted to determine, based on clear and convincing evidence, the parties' respective custody rights.

The orders of the Adair Circuit Court are vacated and this matter is remanded for further proceedings consistent with this opinion.