DENTON (JOHNNELL) VS. MULLIGAN (ABBEY), ET AL.
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RENDERED: SEPTEMBER 17, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002165-ME
JOHNNELL DENTON
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE D. MICHAEL FOELLGER, JUDGE
ACTION NO. 06-J-01010
ABBEY MULLIGAN, DE FACTO
CUSTODIAN; MEGGI MULLIGAN,
MOTHER; J.G.D., CHILD; AND THE
CABINET FOR HEALTH AND
FAMILY SERVICES, COMMONWEALTH
OF KENTUCKY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: FORMTEXT TAYLOR, CHIEF JUDGE; DIXON, JUDGE; HENRY,
SENIOR JUDGE.
TAYLOR, CHIEF JUDGE: Johnnell Denton brings this appeal from July 8, 2009,
and October 13, 2009, orders of the Campbell Circuit Court, Family Court
Division, (family court) granting de facto custodian status of his son, J.G.D., to
Abbey Mulligan, the child’s maternal aunt. We affirm.
J.G.D. was born to Meggi Mulligan on November 20, 2004. On
November 25, 2006, Meggi was incarcerated for a probation violation.1 A few
days later, a judgment of paternity was entered adjudicating Johnnell Denton the
father of J.G.D. As a result of Meggi’s incarceration, J.G.D. lived briefly with
Johnnell during part of November and part of December 2006. Johnnell was also
incarcerated in December 2006.2
On December 15, 2006, J.G.D.’s maternal aunt, Abbey Mulligan,
petitioned the family court for emergency custody of J.G.D. The family court
granted temporary custody of J.G.D. to Abbey on December 15, 2006. In May
2007, Abbey petitioned the court for permanent custody of J.G.D. By order
entered May 22, 2007, Abbey was granted permanent custody of J.G.D.
In August 2007, Meggi petitioned the court to return custody of
J.G.D. to her, and Meggi began exercising visitation. By order entered October 30,
2007, custody of J.G.D. was returned to Meggi per a “graduated schedule.” J.G.D.
began spending one or two nights per week with Meggi but remained primarily
with Abbey. In January 2008, Meggi was again incarcerated for a probation
violation. By order entered March 4, 2008, temporary custody of J.G.D. was again
1
Meggi Mulligan was incarcerated for violating her probation from an earlier conviction by
testing positive for cocaine.
2
Johnnell Denton was incarcerated for possession of cocaine. Johnnell has an extensive criminal
history in Kentucky and Ohio – including trafficking in cocaine, tampering with evidence and
possession of cocaine.
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awarded to Abbey. Two days later, Johnnell petitioned the court for custody of
J.G.D. At the time of his petition, Johnnell was on parole and was residing at a
halfway house where he was receiving substance abuse treatment.
By agreed order entered April 22, 2008, Johnnell was granted
supervised visitation with J.G.D. In May 2008, Meggi was released from jail and
resided in Abbey’s home for approximately three weeks. On June 23, 2008, the
family court denied Johnnell’s motion for custody and ordered that custody of
J.G.D. would remain with Abbey.
In March 2009, Meggi petitioned the family court for custody of
J.G.D., who was now over four years of age. Shortly thereafter, Johnnell also
petitioned the court for custody of J.G.D. In May 2009, Abbey filed a motion
seeking to be declared de facto custodian of J.G.D. By order entered July 8, 2009,
the court determined that Abbey qualified as J.G.D.’s de facto custodian.
Specifically, the court stated:
[Abbey] was first granted temporary custody
12/5/06 when child was 2 yrs. old, and was granted
permanent custody on 5/22/07 until October, 2007, which
is greater than 6 mos. as primary caregiver & financial
supporter and therefore [Abbey] was de facto custodian
during that time.
Johnnell subsequently filed a motion for additional findings of fact
pursuant to Kentucky Rules of Civil Procedure (CR) 52 and a motion to alter,
amend or vacate pursuant to CR 59. The court denied Johnnell’s motion to alter,
amend or vacate but took the motion for additional findings of fact under
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submission. By eighteen-page order entered October 13, 2009, the court made
extensive additional findings and reiterated that Abbey was J.G.D.’s de facto
custodian. The family court ultimately designated Abbey “the primary residential
custodian with joint custody to [Johnnell and Meggi] for parenting time only.”
Johnnell and Meggi were also awarded visitation/parenting time. This appeal
follows.
Johnnell contends the family court erred by determining that Abbey
qualified as a de facto custodian of J.G.D. In support thereof, Johnnell asserts that
J.G.D. did not reside with Abbey for the requisite period of time pursuant to
Kentucky Revised Statutes (KRS) 403.270(1).
KRS 403.270(1) defines “de facto custodian” as follows:
(1) (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
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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 403.280, 403.340, 403.350, 403.822, and
405.020.
Johnnell asserts that Abbey must have been the primary caregiver and financial
supporter of J.G.D. for one year or more to qualify as a de facto custodian under
KRS 403.270(1)(a) because J.D.G. was placed with Abbey by the Department of
Community Based Services.
KRS 403.270 governs de facto custodian status. Essentially, KRS
403.270 defines a de facto custodian as one shown by clear and convincing
evidence to be the primary caregiver and primary financial supporter of a particular
child for a specified period of time. The requisite amount of time necessary to
establish de facto custodian status is dependent upon two factors – (1) age of the
child and (2) source of custody. 16 Louise E. Graham & James E. Keller,
Kentucky Practice – Domestic Relations § 21:29 (3rd ed. 2008).
If the child is under the age of three, a party can become
the de facto custodian by providing primary care and
support for six months. However, if the child is over age
three or has been placed in the de facto custodian's home
by the Department for Social Services, a party becomes a
de facto custodian only after one year or more.
Id.
In the case sub judice, as to the first factor – age of the child, J.G.D.
was two years old when Abbey was initially awarded custody on December 15,
2006. As to the second factor – source of custody, Abbey petitioned the court, and
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the court subsequently awarded custody to her. This was not a situation where
J.G.D. was in the custody of the Department for Community Based Services and
subsequently placed with Abbey by the Department. Rather, custody of J.G.D.
was directly awarded to Abbey by the family court upon Abbey’s petition. Thus,
we disagree with Johnnell’s contention that the statutory requisite amount of time
was one year. Rather, as J.G.D. was less than three years of age when Abbey
obtained custody directly from a court order, we believe the statutory requisite of
time was six months under KRS 403.270(1)(a).
In sum, Abbey was the primary caregiver and financial supporter of
J.G.D. from December 15, 2006, until August 31, 2007, (when Meggi filed her
petition for custody) which exceeds the requisite six-month time period. Indeed,
the circuit court found that Abbey had custody of J.G.D. from December 2006
until October 2007 “which is greater than six months as primary caregiver and
supporter.” As such, we conclude the family court correctly determined that
Abbey qualified as J.G.D.’s de facto custodian by clear and convincing evidence.
We view Johnnell’s other contentions to be either moot or without
merit.
For the foregoing reasons, the orders of the Campbell Circuit Court,
Family Court Division, are affirmed.
HENRY, SENIOR JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
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BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
Cynthia A. Millay
Covington, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE,
ABBEY MULLIGAN:
Rene Heinrich
Newport, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE, J.G.D., CHILD:
Donna M. Bloemer
Guardian ad Litem
Covington, Kentucky
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