ED ALLEN AND WIFE, JUDY ALLEN v. DANNY DEVINE AND WIFE, LISA DEVINE; KRYSTAL VAN CLEAVE; JASON VAN CLEAVE; KEVIN HIGHTOWER; BURT WILKINSON; JACKIE SANDERS; AND AUSTIN VAN CLEAVE AND SHAYANN HIGHTOWER,1 THE CHILDREN
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RENDERED:
February 4, 2005; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002141-ME
ED ALLEN AND WIFE,
JUDY ALLEN
APPELLANTS
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 03-CI-00184
v.
DANNY DEVINE AND WIFE,
LISA DEVINE; KRYSTAL VAN CLEAVE;
JASON VAN CLEAVE; KEVIN HIGHTOWER;
BURT WILKINSON; JACKIE SANDERS; AND
AUSTIN VAN CLEAVE AND SHAYANN HIGHTOWER,1
THE CHILDREN
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND MINTON, JUDGES.
JOHNSON, JUDGE:
Ed Allen and his wife, Judy Allen, have
appealed from the September 8, 2003, order of the Logan Circuit
Court which denied their motion to dismiss the petition for
immediate custody filed by Danny Devine and his wife, Lisa
1
We note that in some of the exhibits before the trial court the child’s name
is spelled as “Shiann”.
Devine, for lack of standing and denied their claims to custody.2
The Allens alleged that they had been acting as de facto
custodians of Austin Van Cleave and Shayann Hightower, the minor
children of Krystal Van Cleave, and requested, in the
alternative, that they be awarded permanent custody of the
children.
The Allens do not dispute the trial court’s findings,
but rather its application of the law regarding de facto
custodianship.
Having concluded that the trial court failed to
apply the correct law in making its determination, we vacate the
order and remand this matter for further proceedings consistent
with this Opinion.
Krystal Van Cleave is the mother of Austin Van Cleave,
whose date of birth is June 23, 2000, and Shayann Hightower,
whose date of birth is December 5, 2001.3
Burt Wilkinson.
2000.
Austin’s father is
Burt and Krystal lived together from 1997 until
Burt’s whereabouts were unknown at the time the Devines,
who are Krystal’s father and stepmother, filed their petition
for custody of Austin and Shayann.
Since Burt was not served
with the petition, his rights were not adjudicated by the trial
2
The Devines argue in their brief that because the Allens did not file a
motion to alter, amend, or vacate under Kentucky Rules of Civil Procedure
(CR) 59.05, they have waived their right on appeal to argue this issue. We
find no merit in this argument.
3
In 1996 Krystal married Jason Van Cleave. The marriage produced one child,
Ayla Van Cleave. Although Jason is named as a party to this appeal, no claim
for custody of Ayla is made in this case. Ayla has resided since birth with
Krystal’s mother, Darlene Kisselbaugh, who serves as Ayla’s de facto
custodian. Krystal and Jason are now divorced.
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court’s award of custody to the Devines.
Kevin Hightower.
Shayann’s father is
Krystal and Kevin resided together at the time
this matter was before the trial court, but they are not
married.
Following the trial court’s award of custody to the
Devines, Krystal and Kevin were granted visitation rights with
Austin and Shayann “coextensive” with the Allens.
Shortly after Austin’s birth in 2000, Krystal and Burt
met Ed and Judy Allen, who reside in Logan County and rented a
house to Krystal and Burt.4
Beginning in February 2002, the
Allens began keeping both Austin and Shayann in their home on a
regular basis.
At that time, Austin was 20 months old and
Shayann was two months old.
By April 2002 the children were
residing full-time with the Allens.5
Krystal testified that this
was not to be a permanent arrangement, but that at that time,
she could not take care of the children.6
Krystal visited the
children at the Allens’ home once or twice weekly and Kevin
visited the children once every other week.7
During the time the
4
The Allens were in their mid-50’s at this time, had been married for over 30
years, and operated a small printing business in Logan County.
5
Prior to this time, Krystal had left Austin with her cousin for almost nine
months before taking action through the Sheriff’s office to get him back.
6
Krystal was diagnosed in 1996 with bipolar disorder, but she has failed to
take medication for this condition. Both Krystal and Kevin have a history of
alcohol and drug abuse, but Krystal testified that neither had current
substance abuse problems.
7
Krystal testified that in August 2003 she attempted to get the children back
from the Allens, but they allegedly refused. Krystal did not consult an
attorney regarding this matter until December 2003, and she took no legal
action to remove the children from the Allens’ care.
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children resided with the Allens, the Allens provided for
essentially all of the children’s needs, although Krystal and
Kevin contributed WIC payments when available, placed
approximately $30.00 in a piggybank, and bought a few clothes
for the children.8
The Devines also bought the children some
clothes.
Between February and September 2002, the Devines
visited with the two children once or twice monthly.
They
claimed they did not know the children were residing with the
Allens on a full-time basis until Labor Day 2002 because Krystal
had intentionally hid this from them.
At that time, the Devines
began to exercise a more consistent visitation schedule with the
children and often picked up the children from the Allens’
residence for overnight visitations.
In June 2002 Jackie Sanders, Kevin’s mother and the
paternal grandmother of Shayann, filed an action against Krystal
and Kevin seeking visitation rights with Shayann.
Krystal had
told Jackie that the children were residing with Krystal’s
“cousin Judy.”
It was later determined, and is currently
undisputed, that the Allens are of no blood relation to Krystal.
8
Before and during the custody action, Krystal was unemployed, and only a few
months prior to this action, Kevin began to work through a temporary service
for $7.00 per hour. At the time of the final hearing on January 20, 2004,
Krystal had been working 40-hour weeks for approximately one month as a
customer service representative earning $7.50 per hour and Kevin was doing
construction work for $8.25 per hour. Krystal testified that she had
attempted to contribute additional money to the care of the two children, but
the Allens had refused.
-4-
As a result of the court action being filed, Krystal attempted
to retrieve the children from the Allens’ home.
However, the
Allens refused to relinquish custody of the children to Krystal.
The Allens made oral and written agreements with Krystal and
Kevin which stated that if Krystal and Kevin would provide a
secure and stable environment for the children, the Allens would
return the children to them.
In the meantime, on November 12,
2002, Jackie was granted visitation with Shayann.
The trial
court at that time ordered Krystal to get a job and to take any
necessary steps to get the children back into her household
within six months.
In March 2003 Krystal met with her father, Danny
Devine, at his request and she agreed that the Devines should
seek temporary custody of the children.9
On May 1, 2003, the
Devines filed a verified petition for immediate and permanent
custody and emergency hearing, stating as follows:
Krystal Van Cleave and Kevin Hightower,
the father of Shayann Hightower, have
allowed the [appellants] Judy Allen and Ed
Allen, who are not related to the children,
to take physical custody of the children.
Krystal Van Cleave and Kevin Hightower have
9
However, at the hearing in July 2003, Krystal wanted the Allens to keep the
children with the Devines having visitation. The trial court found that
Krystal took her parents’ divorce very hard and had not had a good
relationship with her father for many years. The trial court further
observed Krystal’s anger when she testified, which appeared to be primarily
directed at her father. After the July 2003 hearing, Krystal once again
wanted her father to keep the children, but then changed her mind again
before the evidentiary hearings in August 2003. By the last hearing she
wanted to take them herself.
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admitted that they are unable to care for
the children.
The [Devines] have been visiting with
the children every other weekend since they
realized Judy Allen and Ed Allen had
physical custody of the children. As Mr.
and Mrs. Allen are not related to the
children, it would be in the children’s best
interest for the [Devines], the children’s
maternal grandparents, to have custody of
them.
The Devines’ motion did not allege that the Allens were unfit to
care for the children, only that they were not related to the
children.
The Allens filed a response on May 22, 2003, wherein
they denied that Krystal and Kevin had allowed them “to take
physical custody of the children.”
The Allens requested that
the Devines’ motion be dismissed for lack of standing or, in the
alternative, they be awarded custody of the children as their de
facto custodians.10
On June 1, 2003, the Devines filed a motion for
grandparent visitation pending a ruling on their custody
petition.
Following a brief hearing on June 27, 2003, the Logan
Circuit Court Domestic Relations Commissioner recused himself
from the case because he represented the Allens’ son in an
unrelated criminal matter.
In a report filed on June 27, 2003,
the DRC recommended that each of the parties submit to a home
10
There is disputed testimony as to whether the Allens ever suggested to the
Devines that they take the children to raise, whether the Allens admitted
they were too old to care for the children, and whether the Allens agreed not
to seek de facto custodian status as to the children.
-6-
evaluation and then transferred the case directly to the Logan
Circuit Court pending the outcome of the home evaluations.
On June 17, 2003, the Devines filed an amended
petition solely for the purpose of joining Burt Wilkinson as a
party to the case.
They also filed a motion to consolidate the
case at issue herein with the visitation action filed in 2002 by
Jackie Sanders, stating that the two cases “overlap and concern
the same child.”
On July 22, 2003, the trial court entered an
order (1) denying the Devines’ motion to consolidate; (2)
ordering the appointment of a Guardian Ad Litem for the minor
children; (3) granting the Devines’ motion for visitation with
the minor children every other weekend pending the outcome of
the final hearing; (4) ordering the Cabinet for Families and
Children to “conduct investigations and prepare a final report
to be submitted to the Court on or before August 21, 2003,” the
date of the final hearing; and (5) ordering all parties to
attend parenting education classes.11
Evidentiary hearings were held on August 21, 2003,
August 26, 2003, and August 28, 2003.
In its order entered on
September 8, 2003, the trial court made the following findings:
11
The trial court’s order also denied a motion filed by the Devines on June
10, 2003, requesting that all parties execute medical records releases. The
trial court determined that good cause had not been shown as to the necessity
of the releases; however, it did order Krystal to execute a release for her
medical records. It further ordered no discussions in front of the minor
children in regard to this case.
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Krystal Van Cleave and Kevin Hightower have,
for reasons other than poverty alone, failed
to provide for the welfare of their children
and have knowingly and voluntarily delegated
the custody and control of their children to
the Allens for nearly a year and a half.
The Court concludes that they have lost
their superior right to custody and that
custody should be determined between the
parents and the non-parent contestants based
upon the best interest of the children and
considering all relevant facts.
Based upon the facts, the Court
concludes that it is now in the best
interest of the children that permanent
custody be awarded to Danny and Lisa Devine.
The only caveat to this conclusion is the
theoretical possibility that the shock of
these proceedings may cause Krystal and
Kevin to discover some previously unknown
penchant for parental responsibility and
self sacrifice. For this reason, only
temporary custody is now granted to the
Devines and another hearing should be
scheduled to finally determine if this
unlikely event can occur.
The effect of this order is to
eliminate Ed and Judy Allen from contention
as permanent custodians. It is in the best
interest of the children that the Allens be
granted temporary visitation rights
coextensive with the visitation rights of
Krystal and Kevin [ ] which shall be
conducted in accordance with the visitation
guidelines contained in the local rules.
The claims of the Allens to custody of
the children are denied. 12
12
On September 30, 2003, Krystal and Kevin filed a motion to enforce
visitation stating that they had been denied visitation by the Devines and
they were uncertain whether they would be allowed visitation with the
children in the future. The trial court entered an amended visitation order
on October 23, 2003, after the notice of appeal had been filed by the Allens.
-8-
The Allens filed their notice of appeal on October 8, 2003.13
On January 20, 2004, a final hearing was held in which
the permanent custody of Austin was determined as between the
Devines and Krystal and the permanent custody of Shayann was
determined as between the Devines, Krystal and Kevin.
The trial
court entered an order on February 17, 2004, awarding permanent
custody of the two children to the Devines, with the visitation
order of October 23, 2003, remaining in effect.
Having reviewed the record and the applicable law, we
must conclude that the trial court erred in this case when it
found the Allens to be de facto custodians, but failed to give
them “equal consideration” as required under KRS14 403.270(2)15
13
This case was submitted for decision in August 2004 and scheduled to be
heard in December 2004.
14
15
Kentucky Revised Statutes.
KRS 403.270(2) states:
The court shall determine custody in
accordance with the best interests of the child
and equal consideration shall be given to each
parent and to any de facto custodian [emphasis
added]. The court shall consider all relevant
factors including:
(a)
The wishes of the child’s parent or
parents, and any de facto custodian, 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;
-9-
when it determined custody in accordance with the best interests
of the children.16
We hold that the trial court erred in
concluding that KRS 403.270, the “equal consideration”
requirement, was not the applicable law and that it only applies
to custody between parents, as it plainly states that it also
applies to de facto custodians.
Since the trial court’s
findings that the Allens were de facto custodians were supported
by substantial evidence, the trial court was required to give
the Allens “equal consideration” under KRS 403.270(2) when
(d)
The child’s adjustment to his home,
school, and community;
(e)
The mental and physical health of all
individuals involved;
(f)
Information, records, and evidence of
domestic violence as defined in KRS
403.720;
(g)
The extent to which the child has been
cared for, nurtured, and supported by any
de facto custodian;
(h)
The intent of the parent or parents in
placing the child with a de facto
custodian; and
(i)
The circumstances under which the child
was placed or allowed to remain in the
custody of a de facto custodian,
including whether the parent now seeking
custody was previously prevented from
doing so as a result of domestic violence
as defined by KRS 403.720 and whether the
child was placed with a de facto
custodian to allow the parent now seeking
custody to seek employment, work, or
attend school.
16
If the trial court had not found the Allens to be de facto custodians, its
“best interests” analysis would have been proper once it found by clear and
convincing evidence that Krystal and Kevin were unfit or had given up their
superior parental rights. Moore v. Asente, 110 S.W.3d 336, 359 (Ky. 2003).
-10-
applying the best interests standard.
Put simply, the trial
court should have given Krystal, Kevin, and the Allens equal
consideration, and only upon finding that all of them were unfit
to have custody of the children or that all of them had
relinquished their superior parental or de facto custodial
rights should it have considered the Devines or anyone else as
custodians of the children.
Therefore, we must vacate the order
entered on September 8, 2003, and remand this matter to the
Logan Circuit Court for further proceedings to consider the
Allens as custodians of Austin or Shayann pursuant to KRS
403.270(2).
In Moore, supra the Supreme Court of Kentucky
addressed the standard of review for appellate courts in a
custody case and held that a reviewing court may set aside
findings of fact only if those findings are clearly erroneous;
i.e., whether or not those findings are supported by substantial
evidence.17
“[S]ubstantial evidence” is “[e]vidence that
a reasonable mind would accept as adequate
to support a conclusion” and evidence that,
when “taken alone or in the light of all the
evidence, . . . has sufficient probative
value to induce conviction in the minds of
reasonable men.” . . . Thus, “[m]ere doubt
as to the correctness of [a] finding [will]
not justify [its] reversal,” and appellate
courts should not disturb trial court
17
Moore, 110 S.W.3d at 354.
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findings that are supported by substantial
evidence [footnotes omitted].18
After a trial court makes the required findings, it
must then apply the law to the facts.
The determination of the
proper law to be applied to the facts is reviewed de novo.19
“The resulting custody award as determined by the trial court
will not be disturbed unless it constitutes an abuse of
discretion.”20
“‘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.’. . . The exercise of discretion must be
legally sound.”
21
We first address whether the trial court properly
found the Allens to be de facto custodians by clear and
convincing evidence.
KRS 403.270(1)(a) defines a de facto
custodian as
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
18
Id. at 354.
19
Lindley v. Paducah Bank & Trust, 114 S.W.3d 259, 263 (Ky.App. 2002).
20
Sherfey v. Sherfey, 74 S.W.3d 777, 782-83 (Ky.App. 2002) (citing Bickel v.
Bickel, 442 S.W.2d 575, 577 (Ky. 1969)).
21
Sherfey, 74 S.W.3d at 783 (quoting Kuprion v. Fitzgerald, 888 S.W.2d 679,
684 (Ky. 1994)).
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for a period of one (1) year or more if the
child is three (3) years of age or older . .
. . 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.
KRS 403.270 (1)(b) provides that once the court determines by
clear and convincing evidence that a person meets the definition
of a de facto custodian, “the court shall give the person the
same standing in custody matters that is given to each parent
under this section . . . .”22
The Devines argue that the Allens
were not found to be the primary caregivers for and financial
supporters of the children; however, this is completely contrary
to the trial court’s findings.
The Devines further argue that
Krystal’s placement of the children with the Allens was a
temporary agreement.
However, this is irrelevant when
determining whether the Allens were the children’s de facto
custodians.
The Devines also state that the Allens have
“unclean hands” and should not be found to be the de facto
custodians.
However, it was Krystal who hid the fact that the
children were living with the Allens, not the Allens themselves.
Further, the trial court made specific findings that both the
Devines and the Allens might desire to have the children
permanently when it stated:
22
See Sherfey, 74 S.W.3d at 777.
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Even if they were granted custody of the
children, the Allens, and initially the
Devines, expressed willingness to give the
children back to Krystal at any point in the
future that she might request. The Court
doubts the complete sincerity of these
sentiments and suspects that they may have
been made with the idea that Krystal would
never really discover responsibility and
demand custody of the children – or to
appease Krystal – or for other reasons.
There is no evidence in the record to dispute the
trial court’s finding that the Allens were both the primary
caregivers and the primary financial supporters23 of the children
for over six months prior to the Devines filing their petition
and that the children were under three years of age at the time
they were placed in the Allens’ care.
The trial court’s findings were specific as to the
Allens’ status as de facto custodians, stating:
In February of 2002, the Allens began
keeping both Shayann and Austin on a regular
basis in their home. According to Mr.
Allen, Krystal visits the children a couple
of times per week, and Kevin may visit the
children every other week or so. Neither
Krystal nor Kevin have had the children on
an overnight basis since April of 2002. The
Allens have provided essentially all of the
food and clothing for the children although
Krystal states that they contributed “WIC
payments” when they were available and Kevin
said he had put about $30.00 in one of the
children’s piggy bank.
23
Although the question was somewhat disputed, it is now settled that a
person must have “been the primary caregiver for the child but also the
primary financial supporter of the child in order to prove de facto custodian
status.” Swiss v. Cabinet for Families & Children, 43 S.W.3d 796, 798
(Ky.App. 2001).
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Thus, the trial court’s factual findings that the Allens were de
facto custodians of Austin and Shayann was supported by
substantial evidence and we affirm.
Because the Allens were found to be de facto
custodians of the children, the Devines were required to
establish that Krystal, Kevin, and the Allens were either unfit
or had their superior right to custody relinquished before they
could have standing24 to seek custody.25
It is well-established
that when a custody dispute arises between a parent and a nonparent, and where a de facto custodianship is not an issue, the
non-parent must “prove that the case falls within one of two
exceptions to parental entitlement to custody.”26
The first
24
Williams v. Phelps, 961 S.W.2d 40, 41 (Ky.App. 1998) states as
follows:
In general, in order to support an
action, the interest of the party must be a
present or substantial interest, as
distinguished from a mere expectancy. 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.
25
The version of KRS 403.420(4)(b) in effect at the time of the circuit court
proceedings provided that “a child custody proceeding is commenced in the
Circuit Court . . . [b]y a person other than a parent, by filing a petition
for custody of the child in the county in which he is permanently resident or
found, but only if he is not in the physical custody of one (1) of his
parents[.]” This section of the statute was repealed in 2004. The children
in this case were found to be in the physical custody of their de facto
custodian who pursuant to KRS 403.270 have equal standing with the parents.
26
Moore, 110 S.W.3d at 359 (citing 16 L. Graham & J. Keller, Kentucky
Practice, Domestic Relations Law § 21.26 (2d ed. & Supp. 2003)); see also
Davis v. Collinsworth, 771 S.W.2d 329, 329-30 (Ky. 1989).
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exception arises if a parent is shown to be unfit.
The second
arises if a parent waives his or her superior right to custody.27
A determination that a parent is an unfit person to
have custody of her children must be supported by clear and
convincing evidence.28
To prove the parent is unfit, the non-
parent must demonstrate by clear and convincing evidence that
the parent “engaged in conduct similar to activity that could
result in the termination of parental rights by the state.”29
The type of evidence necessary to demonstrate a parent to be
unfit includes: (1) evidence of inflicting or allowing to be
inflicted physical injury, emotional harm or sexual abuse; (2)
moral delinquency; (3) abandonment; (4) emotional or mental
illness; and, (5) failure, for reasons other than poverty alone,
to provide essential care for the children.30
It is undisputed that both Krystal and Kevin were
unable to take care of the children at the time the hearing was
held.
The trial court in its findings stated:
The Court finds that Krystal Van Cleave and
Kevin Hightower voluntarily relinquished
custody of their children to Ed and Judy
Allen in April 2002 and the children have
been continuously in their custody since
27
Moore, 110 S.W.3d at 359.
28
Davis, 771 S.W.2d at 330.
29
Moore, 110 S.W.3d at 360.
30
See Davis, 771 S.W.2d at 330.
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that time. Krystal and Kevin have failed,
for reasons other than poverty alone, to
provide the necessary food, shelter or
clothing and other necessities of life for
these two children for a continuous period
of more than a year. By their actions they
have relinquished their superior claim to
custody.
Once the trial court found Krystal and Kevin to be
unfit, it should have also made a determination as to the
fitness of the Allens.
If the Allens had been determined to be
fit and not to have relinquished their superior right to
custody, then they should have been awarded custody of Austin
and Shayann.
Instead, the trial court then found that it was
not in the best interests of the children to be in the custody
of the Allens for the following reasons:
The Allens have generally attempted to act
in the children’s best interest and to
rescue them from an unfortunate situation.
They have naturally become very attached to
the children and the children to them. This
attachment may have affected their judgment
and objectivity in their dealings with
Krystal and her father. They are in all
respects capable of providing a stable home.
Nevertheless it is found that it is not in
the children’s best interest to grant the
Allens permanent custody. The lack of any
blood relationship and their age (they will
be approaching age 70 when Shayann is 15
years old) are both factors in this
decision.
The possibility that they could
later choose to move elsewhere resulting in
separation of the 3 siblings and the
possibility that sometime in the indefinite
future that they might voluntarily
relinquish custody back to Krystal has also
been considered. The likelihood of either
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of these events happening seems lower if
custody was placed with the Devines. For
these reasons it is in the best interest of
the children that the Allens be eliminated
from consideration as permanent custodians.
However, the trial court failed to make a finding
regarding whether the Allens had given up their superior rights
as de facto custodians or whether they were unfit to care for
the children.31
This right of the de facto custodian is just as
important as that of the parents.
KRS 403.270(1)(b) states,
“[o]nce 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. . . .”
The trial court plainly stated that the purpose of its September
8, 2003, order was to eliminate the Allens from consideration
for custody.
The reasons given by the trial court concerned
factors not enumerated in KRS 403.270(2) and involved issues
that would not affect the Allens’ relationship with the
children, which was a clear abuse of KRS 403.270(3).
Thus, the trial court’s finding that the Allens were
the de facto custodians of the children was supported by
substantial evidence, and we are compelled to uphold this
finding.
Therefore, with that being established, we must vacate
the order of September 8, 2003, and remand this matter to the
31
Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky. 2004). See also James v.
James, 457 S.W.2d 261, 263 (Ky. 1970); Diaz v. Morales, 51 S.W.3d 451, 454-55
(Ky.App. 2001).
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Logan Circuit Court for it to apply the law of KRS 403.270 and
to make its custody determination in accordance with the law as
discussed herein.
On remand, the trial court will need to
determine whether the Allens are unfit or whether they
relinquished their superior right to custody.
If neither of
these applies, then the Allens must be awarded custody of Austin
or Shayann since Krystal and Kevin were found to have
relinquished their superior right to custody in the orders
entered on September 8, 2003, and February 17, 2004, and they
did not appeal those orders.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth R. Williams, Jr.
Russellville, Kentucky
Pamela C. Bratcher
Bowling Green, Kentucky
-19-
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