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Court of Appeals of Kentucky.


NO. 2011–CA–002056–ME

Decided: June 15, 2012

BEFORE:  CAPERTON, LAMBERT, AND MOORE, JUDGES. BRIEF FOR APPELLANT:  Susan M. Meschler Shelbyville, Kentucky BRIEF FOR APPELLEE:  Sammy Deeb Louisville, Kentucky



Heidi Fenton appeals the Jefferson Family Court's determination that John and Kathryn Fenton (the Fentons) had established de facto custody of Heidi's minor child and subsequent award of permanent custody of the child to the Fentons.   After a careful review of the record, we affirm.


Heidi and James Fenton Double are the biological parents to A.F., a minor child.   On or about August 14, 2008, the Cabinet for Health and Family Services received a report regarding the existence of child pornography in Heidi and James' home.   A temporary removal hearing was not held until September 11, 2008, at which time a Cabinet worker testified by way of her petition that Heidi and James had left the child with the paternal grandparents, John and Kathryn Fenton, and had gone to Louisiana.   The court observed that Heidi and James left for Louisiana one day prior to the hearing.   Heidi and James did not attend or contest the proceedings.   Consequently, the family court awarded the Fentons temporary custody of A.F. The child has remained in the Fentons' care since that time, and Heidi made only intermittent efforts to see the child upon her return from Louisiana.

On August 6, 2009, the Fentons petitioned the family court for de facto custody of A.F. In her response, Heidi conceded that A.F. was under three years of age;  A.F. had been in the care, custody, and control of the Fentons for a period in excess of six months;  and during that time the Fentons had been the primary caregivers and financial supporters of A.F. Heidi subsequently filed a motion for custody of A.F.Double

At the de facto custody hearing,Double Heidi argued that A.F. was placed with the Fentons by the Cabinet.   Consequently, A.F. had to have been in the Fentons' care for a period of one year or more for the Fentons to establish de facto custody.   Heidi further asserted that, pursuant to KRS  Double 403.270(a), the time period was tolled upon the filing of her motion for custody.   However, Heidi presented no evidence whatsoever that the Cabinet had placed the child with the Fentons prior to the temporary removal hearing or to rebut that she voluntarily left the child with the Fentons when she fled the Commonwealth.

After reviewing the associated dependency records, the family court concluded that Heidi had voluntarily placed A.F. with the Fentons;  Double that the Fentons had satisfied the requisite six-month period;  and therefore the Fentons had established de facto custody. Double

The family court determined that the Fentons had established de facto custody;  thereafter, it held a subsequent hearing to evaluate whether it was in A.F.'s best interest to grant the Fentons' motion for permanent custody of A.F. At the beginning of the hearing and in its order, the family court explained that Heidi and the Fentons, as de facto custodians, possessed equal standing to obtain custody of A.F. and that the purpose of the hearing was to determine with whom A.F.'s best interest would be served.

The testimony revealed that the Fentons had a very close relationship with A.F. and that A.F. is a healthy and active child.   Heidi conceded that the Fentons have been excellent caregivers for A.F. Conversely, Heidi has shown very little interest in A.F. Heidi does not call A.F. on the telephone, nor does she participate or inquire as to A.F.'s medical care or educational activities.   She has never requested to be able to spend additional time with A.F. When asked why she believed that it was in A.F.'s best interest to be in her custody, Heidi's only response was “because I'm her mother and I didn't do nothing wrong.”   And, when asked what efforts she had made with respect to A.F. in the past three years aside from exercising occasional visitation, Heidi responded that she had “waited for [her] court dates.”

Additionally, Heidi has resided in an extended stay hotel for the past two years, had previously lived in her car for a few months, is not employed, and has no prospect of employment in Kentucky excluding an occasional house-cleaning job.   Her living expenses and child support obligation are paid by her father who lives in Massachusetts.   James, who also testified at the hearing, indicated that Heidi had abused alcohol in the past, and he believed it was in A.F.'s best interest to remain with the Fentons.   The family court reasoned that

[b]ased upon the minimal contact the minor child has had with her parents, the history of domestic violence between the parents, the evidence of inappropriate alcohol use by both parents, the absence of stable housing or employment by either parent, the minor child's adjustment to the [Fentons'] home and community, the circumstances under which the child was placed with the [Fentons], the extent to which the [Fentons] have provided for A.F.'s care and nurturing, the agreement of [James] to permanent custody with the [Fentons] and the inability of the parents to provide for themselves adequately, the Court finds that it is in A.F.'s best interest to be placed in the permanent custody of the [Fentons].

Heidi filed a motion to alter, amend, or vacate and for additional findings of fact.   The family court denied Heidi's motion, and she now appeals.


A family court's determination regarding de facto custody is a question of law.  Hetsley v. Frogge, 350 S.W.3d 807, 808 (Ky.App.2011).   Accordingly, our review is de novo.  Id. (citing Laterza v. Commonwealth, 244 S.W.3d 754, 756 (Ky.App.2008)).   However, we review a family court's findings of fact for clear error.  B.C. v. B.T., 182 S.W.3d 213, 220 (Ky.App.2005).

A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person.   Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court.   If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion․  [T]he test is ․ whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.

Id. (internal citations and footnotes omitted).  “When reviewing a decision in a child custody case, the test is whether the ․ [court's] decision constitutes an abuse of discretion.”  Burton v. Burton, 355 S.W.3d 489, 493 (Ky.App.2011).


Heidi argues for the first time on appeal that the family court lacked personal jurisdiction because the charges against her in a separate dependency, neglect, and abuse action maintained by the Commonwealth were dismissed.   Heidi asserts that the family court “erred by continuing to exercise jurisdiction over the person of A.F.” She contends that, upon dismissal of the charges against her, the family court was divested of its jurisdiction and she was “instantly restored to an unencumbered position of superior rights as the natural parent of A.F. and was entitled to immediate custody of her daughter.”

“Jurisdiction over the person ․ can be acquired by the service of process upon him or by his voluntary appearance and submission.”  Hudson v. Manning, 250 Ky. 760, 63 S.W.2d 943, 945 (1933).   However, lack of jurisdiction over the person is waived where the party asserting the defense fails to raise it before the lower court in accordance with Kentucky Rules of Civil Procedure.  CR  Double 12.08.   As mentioned, Heidi raised no jurisdictional argument before the family court below.   Therefore, Heidi waived any and all defenses with respect to personal jurisdiction.  Id.

Heidi nonetheless appears to have confused personal jurisdiction with subject matter jurisdiction, and, as such, we believe it is necessary to dispel any question regarding the family court's subject matter jurisdiction.   Unlike personal jurisdiction, “subject-matter jurisdiction may be raised for the first time on appeal.”  Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky.2011) (citing Karahalios v. Karahalios, 848 S.W.2d 457, 460 (Ky.1993)).  “Subject-matter jurisdiction refers to a court's authority to determine ‘this kind of case’ as opposed to ‘this case.’ ”  Id. (quoting Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970)).   A court lacks subject matter jurisdiction only where it has “not been given any power to do anything at all in such a case․”  Duncan, 451 S.W.2d at 631.   Family courts are authorized to make determinations regarding child custody.  S.J.L.S. v. T.L.S., 265 S.W.3d 804, 834 (Ky.App.2008).   Where such authority exists, its subject matter jurisdiction is invoked when a petition is filed.  Hudson, 250 Ky. 760, 63 S.W.2d at 945.

In the instant action, the family court's subject matter jurisdiction was invoked when the Fentons filed their petition for de facto custody.  Hudson, 250 Ky. 760, 63 S.W.2d at 945.   Heidi's argument is erroneous because it presupposes that an alleged lack of jurisdiction in the dependency action divested the court of jurisdiction with respect to the wholly separate de facto custody proceeding.   Also, she ignores the fact that the de facto custody proceeding relied upon the dependency proceeding only insofar as is necessary to ascertain the circumstances under which A.F. came to live with the Fentons.

Turning to the merits of the appeal, Heidi next reiterates her argument that A.F. was placed by the Cabinet;  so, according to her, it was necessary for the Fentons to demonstrate that A.F. had been in their care for one year or more.   Additionally, Heidi argues that the time period after her June 18, 2009 custody motion could not be used to establish de facto custody, thereby precluding the Fentons from demonstrating that A.F. had resided with them for more than one year.

In order for the Fentons to be named de facto custodian of the child, they must establish by clear and convincing evidence that they 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 (3) years of age or older or has been placed by the Department of Community Based Services.

KRS 403.270(a).

The Fentons concede that they did not care for A.F. for one year or more prior to their petition for de facto custody.   However, Heidi concedes that, at the time of the petition, A.F. was under three years of age;  had been in the care, custody and control of the Fentons in excess of six months;  and the Fentons had been the primary caregivers and financial supporters for A.F. Thus, the sole issue to be resolved regarding de facto custody is whether the family court erred in determining that Heidi voluntarily placed A.F. with the Fentons, thereby establishing the requisite time period for the establishment for de facto custody.   This was a factual issue to be resolved by the family court.

As mentioned, the sworn testimony contained in the coinciding dependency action reflected that Heidi left A.F. with the Fentons and went to Louisiana one day prior to the temporary custody hearing, rather than the Cabinet placing A.F. with the Fentons.   No other evidence on the issue was presented at the de facto custody hearing.   Thus, the family court did not abuse its discretion when concluding that Heidi voluntarily placed A.F. with the Fentons.   Conseqently, the family court did not err in using the six-month period to determine the Fentons' de facto custodian status.

With respect to the family court's subsequent best interest determination, Heidi argues that the family court failed to give equal consideration to her as the biological mother and failed to properly interpret the evidence according to the statutory factors set forth in KRS 403.270(2).   As mentioned previously, the family court clearly acknowledged that both Heidi and the Fentons were in equal standing to obtain custody of A.F. and that the sole inquiry was with whom A.F.'s best interest would be better served.   The family court was in the best position to evaluate the testimony of the parties, B.C., 182 S.W.3d at 220, and the testimony of record reflects that A.F. had a very close relationship with the Fentons and that the Fentons provided excellent care for A.F.;   whereas, in addition to concerns regarding Heidi's ability to care for A.F. based on Heidi's history, she has made very little effort to establish a relationship with A.F. Accordingly, the family court did not abuse its discretion.

Finally, although somewhat contrary to her former argument, Heidi also seems to suggest that she should have been given preference as A.F.'s biological parent.   This assertion clearly ignores the plain language given by the General Assembly in KRS 403.270(2)(b), which provides that a de facto custodian is given the same standing in custody matters as that of the biological parent.

Accordingly, we affirm.



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