JEANETTE MITCHELL WILLIAMS V. MARGIE ANN PHELPS
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RENDERED:
February 6, 1998; 2:00 p.m.
TO BE PUBLISHED
NO. 96-CA-2349-MR
JEANETTE MITCHELL
WILLIAMS
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE HENRY F. WEBER, JUDGE
ACTION NO. 96-FC-4195
MARGIE ANN PHELPS
APPELLEE
AND
NO. 97-CA-0410-MR
MARGIE ANN PHELPS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE HENRY F. WEBER, JUDGE
ACTION NO. 96-FC-4195
JEANETTE MITCHELL
WILLIAMS
APPELLEE
OPINION AND ORDER
REVERSING AND REMANDING IN NO. 96-CA-2349-MR
DISMISSING IN NO. 97-CA-0410-MR
* * * * * * * *
BEFORE:
COMBS, GARDNER and JOHNSON, Judges.
GARDNER, JUDGE:
Jeanette Williams (Williams), appeals from an
order of the Jefferson Family Court denying her motion for a
hearing on a custody matter and awarding custody of the child
involved to Margie Phelps (Phelps). Phelps has separately appealed
from an order of the family court stating that it had lost
jurisdiction to consider her request for visitation. After closely
reviewing this case and the applicable law, we have concluded that
the court below erred by ruling that Williams lacked standing, and
by declining to conduct a hearing to consider who should be granted
custody of the child in this case.
The child in this case is Megan Marie White (Megan).
Megan was born in June 1990, and her mother is Jane Nadine Phelps
White (White).
Megan was born out of wedlock.
regarding who fathered Megan.
There is a dispute
Williams's brother, Steven Anthony
Mitchell (Mitchell), believed that he was the father and claimed
that he was told so by White.1
was the father.
White contends that another man
Both Mitchell and the other possible father are
now deceased.
Megan lived with Phelps, White's sister, during at least
part of the first three and one-half years of her life.
White
also lived with Phelps during that time and subsequent times.
June 1993, Megan began living with Mitchell.
In
Megan lived with
Mitchell from that time until August 1996 when Mitchell died.
Mitchell had a heart transplant in 1992, and in October 1995,
Mitchell's health began to deteriorate. He and Megan moved in with
Williams.
Williams cared for Mitchell until his death and has
cared for Megan until the present time.
1
No biological tests were ever undertaken to prove or disprove
that Mitchell was Megan's father.
-2-
After Mitchell's death, Phelps filed an action in family
court seeking custody of Megan.2
She contended that Mitchell was
not the putative and/or biological father of Megan and that Megan
should live with her since she was Megan's maternal aunt.
She
maintained that it would also benefit Megan to live with her other
siblings who also live with Phelps.
The family court, in an order dated August 27, 1996,
concluded that Williams lacked standing, because there had been no
adjudication that Mitchell was Megan's biological father.
The
court denied Williams's motion to hold a hearing on the custody
issue.
The court ruled that Phelps would have the care, custody
and control of Megan.
Court.
Williams subsequently appealed to this
She later brought a petition for intermediate relief
pursuant to Kentucky Rule of Civil Procedure (CR) 76.33 to stay the
family court's custody order.
This Court, in an order of August
29, 1996, granted the motion for emergency relief and ordered that
the family court's order granting custody to Phelps be stayed.
This Court noted that there was a substantial likelihood that
Williams would prevail on appeal.
Following this Court's order which stayed the family
court's order granting custody to Phelps, Phelps filed an affidavit
with the family court seeking visitation with Megan on every other
weekend and on certain holidays.
On December 16, 1996, the family
court denied Phelps's request for specific visitation.
asked the family court to reconsider its order.
2
The family court,
White, Megan's mother, has not sought custody.
-3-
Phelps
in an order of January 6, 1997, once again denied Phelps's request
for
specific
visitation.
It
concluded
that
it
had
lost
jurisdiction to consider Phelps's motion, because the case had
already been appealed on the custody issue.
Phelps has appealed
from this order.3
First, we turn to Williams's appeal and consider the
issue of standing.
Williams argues that the family court erred by
ruling that she lacked standing to seek custody of Megan.
Based
upon the facts of the case at bar, we conclude that the family
court erred in deciding that Williams lacked standing.
In general, in order to support an action, the interest
of
the
party
must
be
a
present
or
distinguished from a mere expectancy.
substantial
interest,
as
Winn v. First Bank of
Irvington, Ky. App., 581 S.W.2d 21, 23 (1978).
A party must have
a real, direct, present and substantial right in the subject matter
of the controversy.
Id.
Standing is the right to appear and seek
relief in a particular proceeding.
See Id.
Several courts in other jurisdictions have addressed the
issue of the standing of nonparents in custody cases.
In Matter of
the Custody of C.C.R.S., 892 P.2d 246 (Colo. 1995),
the Colorado
Supreme Court rejected the premise that only stepparents, blood
relatives of a child or parents should be accorded standing.
A
nonparent having had physical custody of the child for six months
or more is accorded standing.
Matter of the Custody of C.C.R.S.,
3
Phelps moved this Court to submit the case on the briefs
already filed of record and on the record filed herein. This Court
granted the motion.
-4-
892 P.2d at 253.
interests.
Id.
This is in keeping with the child's best
In Illinois, the courts have held that under that
state's statute, a nonparent may petition for custody of a child
but only if the child is not in the physical custody of one of the
parents.
In re Marriage of Siegel, 648 N.E.2d 607 (Ill. App.
1995); In re Marriage of Haslett, 629 N.E.2d 182 (Ill. App. 1994);
In re Marriage of Dile, 618 N.E.2d 1165 (Ill. App. 1993).
A
nonparent must show that the parent has relinquished legal custody
of the child rather than mere physical possession.
Id.
See also
In re Estate of Johnson, 673 N.E.2d 386 (Ill. App. 1996).
Cf.
Bowie v. Arder, 490 N.W.2d 568 (Mich. 1992) (holding between
parents and nonparents, the mere de facto custody of the child by
the nonparents was not enough to invoke standing for nonparents,
unless nonparents were legal guardians).
In the instant case, Williams had standing.
She had de
facto custody of Megan and had cared for Megan since at least
October 1995. There is evidence in the record showing that Megan's
mother brought her to live with Mitchell in June 1993.
When
Mitchell later became ill, Williams cared for Mitchell and Megan
and
has
continued
caring
for
Megan
after
Mitchell's
death.
Mitchell claimed that he was told by White that he was the father,
while White and Phelps claim this never occurred and that he was
not the father.
White, Megan's mother, is not seeking custody.
Further, the petition for custody brought by Phelps clearly names
Williams as a party and states that Megan resided with Williams at
the time of the filing of the petition.
-5-
Based upon all of these
facts, under the unique circumstances of this case, Williams had
standing.
Williams secondly contends that the family court erred by
refusing to hold a hearing to consider whether she or Phelps should
have custody of Megan, and by not applying the appropriate best
interests standard in making a determination.
We have concluded
that the family court abused its discretion by not conducting a
hearing on the matter.
Generally in deciding which parent should have custody,
Kentucky Revised Statute (KRS) 403.270(1) provides that a court
shall determine custody in accordance with the best interests of
the child and equal consideration shall be given to each parent.
The court shall consider all relevant
factors including:
(a) The wishes of the child's parent or
parents as to his custody;
(b) The wishes of the child as to his
custodian;
(c) The interaction and interrelationship
of the child with his parent or parents,
his siblings, and any other person who
may significantly affect the child's best
interests;
(d) The child's adjustment to his home,
school and community;
(e) The mental and physical health of all
individuals involved; and
(f) Information, records, and evidence of
domestic violence as defined in KRS
403.720.
KRS 403.270(1). See also Greathouse v. Shreve, Ky., 891 S.W.2d 387
(1995).
In cases involving a parent and nonparent, a court must
first find a parent unfit or to have relinquished custody, before
the best interests test applies.
683 S.W.2d 246 (1984).
See Id.; McNames v. Corum, Ky.,
If a parent has been declared unfit, or has
-6-
relinquished
custody
and
custody
is
contested
between
two
nonparents, the best interests test applies. Greathouse v. Shreve,
891 S.W.2d at 391.
392 (1995).
See also Shifflet v. Shifflet, Ky., 891 S.W.2d
In Tinsley v. Boggs, Ky., 325 S.W.2d 335 (1959), which
involved a custody dispute between a maternal aunt and the paternal
grandmother, the court noted that in cases of this character, the
welfare of the child is the chief concern of the court.
has broad discretion in selecting the child's custodian.
336.
The court
Id., at
The judicial discretion must not be abused and is subject to
appellate review.
Id.4
Where both parents are deceased, blood
lines are rather incidental, and the welfare of the child continues
to be the major concern.
Ralph Petrilli, Kentucky Family Law, ยง
26.8 at p. 431 (1988).5
Courts from other jurisdictions have been faced with the
issue of the proper standard to apply in custody disputes between
nonparents.
In People ex. rel. Teitler v. Haironson, 331 N.Y.S.2d
461 (N.Y. App. Div. 1972), the court in adjudging a custody dispute
between nonparents and nonrelatives of the child, held that the
court acts as Parens patriae, considering the best interests of the
child to decide in whose custody the child should be reared.
4
In discussing visitation, Kentucky's Supreme Court has held
that the relationship which develops between a surrogate parent can
be as close as that of a child to a natural parent and that a
hearing should be held regarding visitation in such cases to
determine the child's best interests. Simpson v. Simpson, Ky., 586
S.W.2d 33 (1979).
5
While Kentucky does not appear to recognize a preference for
relatives in custody cases involving nonparents, the Kentucky
legislature has recognized a preference in adoption cases. See KRS
620.090.
-7-
Assuming that relator stood in Loco parentis to the child, this
should not in itself endow him with a superior right to custody.
Id.
The court in In re Whaley, 620 N.E.2d 954 (Ohio Ct. App.
1993), was faced with a situation where neither parent sought
custody
of
the
child,
and
the
appellate
court
upheld
the
application of a best interests test in deciding custody between
the stepmother and maternal cousin and found no abuse of discretion
by the trial court.
Cf. S.M. v. A.W., 656 A.2d 841 (N.J. Super.
Ct. App. Div. 1995) (holding that the general best interests test
is applicable in a custody dispute between a maternal grandmother
and an unrelated foster parent; however, the maternal grandmother
is a presumptively suitable replacement for the parent); In the
Matter of the Welfare of D.L., 486 N.W.2d 375 (Minn. 1992) (holding
that based on state statute, adoptive placement with a family
member is presumptively in the child's best interests, but this
should not be granted automatically because the best interests vary
from case to case and the trial court retains broad discretion
based upon its opportunity to observe the parties, but the trial
court must make detailed factual findings).
In
the
case
at
hand,
the
family
court
abused
its
discretion by refusing to hold a hearing to consider the merits of
each party as to custody and to determine what is in Megan's best
interests.
The court must consider the evidence presented and
apply the appropriate factors set out in KRS 403.270.
earlier, Williams had standing.
As we stated
Kentucky has not recognized a
preference for relatives in nonparent custody cases, so the best
-8-
interests test must be applied.
There was evidence in the record
that Williams has cared for Megan in recent years but Phelps cared
for Megan during her early years.
Thus, we reverse the family
court's order and remand this case for the court to hold a hearing
in compliance with this opinion and make appropriate findings in
awarding custody.
Phelps has appealed the family court's order denying her
request for visitation. Phelps has made no arguments to this Court
as to what specific relief she is seeking.
Since the family court
has not ruled on the substance of the visitation issue, we cannot
consider the merits of the issue on appeal.
See Stuart v. Capital
Enterprise Ins. Co., Ky. App., 743 S.W.2d 856 (1987).
On remand,
the family court must first determine after a hearing, which party
will be granted custody.
Following this determination, the family
court must then determine whether visitation is appropriate for the
party who is not awarded custody.
For the foregoing reasons, the order of the Jefferson
Family Court in appeal No. 96-CA-2349-MR is reversed, and the case
is remanded for proceedings consistent with this opinion.
Appeal
No. 97-CA-0410-MR is dismissed as moot.
ALL CONCUR.
ENTERED: February 6, 1998
/s/ John A. Gardner
JUDGE, COURT OF APPEALS
-9-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Darryl T. Owens
Louisville, Kentucky
Teddy B. Gordon
Louisville, Kentucky
-10-
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