DONALD WAYNE MORRISON v. JULIE ANNE MCCLURE, MICHAEL LEE MCCLURE; AND GINNE L. CARVER
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RENDERED:
AUGUST 17, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001472-MR
DONALD WAYNE MORRISON
v.
APPELLANT
APPEAL FROM ROCKCASTLE FAMILY CIRCUIT COURT
HONORABLE DEBRA HEMBREE LAMBERT, JUDGE
ACTION NO. 2000-CI-00010
JULIE ANNE MCCLURE, MICHAEL LEE MCCLURE;
AND GINNE L. CARVER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Donald Wayne Morrison (Donald) appeals from a
child custody order of the Rockcastle Circuit Court.
The trial
court awarded joint custody of Donald’s son to the child’s
mother, Ginnie L. Carver (Ginnie), and to the maternal aunt and
uncle, Julie Anne and Michael Lee McClure (the McClures).
The
trial court further found that the child’s interests would be
best served by continuing to reside with the McClures.
Donald
argues that the trial court erred in finding that the McClures
are the child’s de facto custodians, and in applying the “best
interests of the child” standard in determining custody.
Finding
no error, we affirm.
B.M. was born out of wedlock to Ginnie Carver and
Donald Morrison on March 4, 1991.
August of 1992.
Ginnie.
Ginnie and Donald separated in
After his parents’ separation, B.M. lived with
In December of 1997, Ginnie placed B.M. in the care of
the McClures, who have continued to care for the child since
then.
On January 21, 2000 the McClures filed a custody
petition seeking permanent custody of their nephew B.M.
Ginnie
agreed that the McClures should have custody of B.M., and she
requested reasonable visitation.
In response, Donald filed a
petition seeking custody of B.M.
On February 18, 2000, the trial court entered an
interlocutory order which granted reasonable visitation rights to
Donald and Ginnie, but further designated that the child would
remain with the McClures until after a permanent custody hearing.
Following a hearing on March 23, 2000, the court entered an order
granting joint custody of B.M. to the McClures and Ginnie.
The
court also gave primary physical custody of B.M to the McClures.
Donald was given reasonable visitation rights.
The trial court
found clear and convincing evidence that the McClures were de
facto custodians of B.M as defined by KRS 403.270.
Donald now
appeals to this Court for review.
Donald argues that the court erred in applying the best
interests standard of KRS 403.270.
In addition to that argument,
Donald claims that even if the court was correct in applying that
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standard, the court still erred because it failed to give
adequate consideration to one of the factors that determines
custody.
We hold that the trial court correctly found that the
McClures are B.M.’s de facto custodians, and thus, the court
properly applied the best interests standard.
We also hold that
the court adequately and fairly considered all of the applicable
factors in determining the best interests of the child.
The standard of review on appeal of an order
determining custody of a minor child is whether the trial court
abused its discretion.1
In selecting the child's primary
caretaker, the court possesses broad discretion.2
Plainly, these
decisions impose on the trial court a profound duty to make
careful judgments concerning the control, health, care and
education of the child.3
In this case, the McClures, two non-parents, are
seeking custody of B.M.
Our Supreme Court has recognized that
generally a parent has a superior right to custody of his or her
child than does a non-parent.4
Traditionally, a non-parent could
only defeat a parent’s superior right to custody by proving
either: (1) that the natural parent is unfit to take custody of
1
Tinsley v. Boggs, Ky. App., 325 S.W.2d 335, 336 (1959); citing Conlan v. Conlan, Ky.,
293 S.W.2d 710 (1956); and Youngblood v. Youngblood, Ky., 252 S.W.2d 21 (1952).
2
Williams v. Phelps, Ky. App., 961 S.W.2d 40, 42 (1998).
3
Tinsley, 325 S.W.2d at 336.
4
Greathouse v. Shreve, Ky., 891 S.W.2d 387, 389 (1995); citing McNames v. Corum,
Ky., 683 S.W.2d 246 (1985); Davis v. Collinsworth, Ky., 771 S.W.2d 329 (1989); and Fitch v.
Burns, Ky., 782 S.W.2d 618 (1989).
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the child;5 or (2) that the natural parent has made a waiver of
his or her superior right to custody by making an intentional or
voluntary relinquishment of custody.6
In the absence of such
proof, the-best-interests-of-the-child test has traditionally not
applied to custody disputes between a parent and a non-parent.7
In response to the occasional harshness of this rule
and to the changing roles of parents, the General Assembly
amended KRS 403.270 to give standing in custody matters to
non-parents who have assumed a sufficiently parent-like role in
the life of the child.8
Such de facto custodians have the same
standing in custody matters as do natural parents.
However, a
person seeking the status of de facto custodian must prove, by
clear and convincing evidence, that he or she has
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 Social 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.9
5
McNames, 683 S.W.2d at 247.
6
Greathouse, 891 S.W.2d at 391.
7
Shifflet v. Shifflet, Ky., 891 S.W.2d 392, 393 (1995).
8
9
See Sullivan v. Tucker, Ky. App., 29 S.W.3d 805 (2000).
KRS 403.270(1)(a).
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In this case, the McClures successfully argued to the
trial court that they had satisfied these requirements and so
were entitled to the status of B.M.’s de facto custodians.
The
trial court found that B.M. resided with the McClures since
December of 1997, thereby satisfying the statute’s time
requirement.
The trial court also concluded that the McClures
were the primary caretakers, as well as the financial supporters
of B.M.
The evidence showed that the McClures have given B.M.
his own room in their home and medical attention for his special
needs, such as professional counseling and therapy for his mild
mental retardation.
The McClures have helped B.M. with his
schooling by meeting with his teachers almost on a daily basis.
They are also his primary financial supporters, going so far as
to place B.M. on their health insurance policies.
clearly provided for all of his basic needs.
They have
Consequently, we
find that the evidence supports the trial court’s findings that
the McClures were de facto custodians of B.M.
Since they are de facto custodians, the McClures have
the same standing to seek custody as the child's natural
parents.10
Therefore, the next step in our discussion of this
matter is to see if the court abused its discretion in awarding
custody to the McClures using the best interest standard.
This
standard requires the court to make a decision concerning custody
in accordance with the child's best interest.
Each parent, as
well as all de facto custodians, will be given equal
10
Posey v. Powell, Ky. App., 965 S.W.2d 836, 840 (1998).
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consideration.11
In determining the best interests of the child,
the court shall consider all factors, including:
(a) The wishes of the child’s parent or
parents; and any de facto custodians, 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;
(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 circumstance 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 in 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.12
Donald argues that the trial court failed to give
sufficient weight to the last of these factors in assigning
custody of B.M. to the McClures.
Custody decisions should be
based upon a consideration of all of the relevant factors set out
11
12
KRS 403.270(2).
KRS 403.270(2).
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in KRS 402.270(2).13
Nevertheless, the trial court’s factual
findings regarding custody may not be set aside unless they are
clearly erroneous.14
As previously noted, the McClures have been B.M.’s
primary caretakers and financial supporters since 1997.
Furthermore, both Donald and Ginnie agree that B.M. should remain
with the McClures, at least for the near future.
The evidence
established that B.M. is well adjusted to his life with the
McClures.
The McClures have amply cared for and nurtured B.M.,
and the McClures have worked hard to help B.M. with his
educational and emotional problems.
Donald asserts that he agreed to place B.M. with the
McClures because he was in the military and could not take care
of the child.
He claims that he has always intended to become
B.M.’s custodial parent after he retires in 2002.
Donald further
claims that an agreement was made between the McClures, Ginnie
and himself to return B.M. to Donald as soon as Donald was better
able to care for him.
The trial court found no evidence of such
an agreement.
Indeed, the trial court found that Donald had only
infrequent contact with B.M. from December 1997 through June
1999.
Although Donald had an adequate opportunity to spend his
weekend and vacation leave with B.M., the trial court found that
Donald did not take an active part in his son’s life until the
McClures and Ginnie initiated this proceeding.
13
Reichle v. Reichle, Ky., 719 S.W.2d 442, 444 (1986).
14
CR 52.01; Riechle, supra.
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Such conduct on
Donald’s part belies his stated intent to become B.M.’s custodial
parent upon his retirement.
When viewing the record as a whole, we cannot find that
the trial court failed to give adequate consideration to all of
the relevant factors before it accorded custody of B.M. to the
McClures.
The trial court’s finding that B.M.’s interests would
be best served by remaining with the McClures was supported by
substantial evidence.
Thus, we find no clear error in any of the
court's factual findings and no abuse of discretion in its
custody decision.
Accordingly, the order of the Rockcastle Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT
DONALD WAYNE MORRISON:
BRIEF FOR APPELLEES
JULIE AND MICHAEL MCCLURE:
William D. Gregory
Mt. Vernon, Kentucky
Willis G. Coffey
Mt. Vernon, Kentucky
BRIEF FOR APPELEE
GINNIE L. CARVER:
John E. Clontz
Clontz & Cox
Mt. Vernon, Kentucky
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