DOUGLAS M. WHITE v. BRYAN GEMMER; AND CARME NEUBAUER
Annotate this Case
Download PDF
RENDERED: August 29, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001735-MR
DOUGLAS M. WHITE
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE LINDA R. BRAMLAGE JUDGE
ACTION NO. 00-CI-01420
v.
BRYAN GEMMER; AND
CARME NEUBAUER
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND KNOPF, JUDGES.
BARBER, JUDGE:
Appellant Douglas White appeals the decision of
the Boone County Family Court denying his petition for
declaration of de facto custodian of the minor child M.G.
The minor child is the daughter of Carme Neubauer and
Appellee Bryan Gemmer.
Bryan Gemmer did not have any prenatal
or postnatal involvement in the child’s financial, emotional or
social life.
During the first few months of the child’s life,
the minor child and her mother resided with the maternal
grandmother.
Before the infant turned one, the mother and M.G.
moved in with Glen Gemmer, the paternal grandfather, and his
partner, Appellant Douglas White.
The mother then moved out,
leaving custody and care of the child with White and Glen
Gemmer.
At the request of Glen Gemmer, the trial court gave
temporary custody of the child to him in 1996, when the child
was under two years old.
At that time, the child had been
living with White and Gemmer for a year.
Neither biological
parent was involved in the child’s life in any fashion.
Glen Gemmer was not the primary caretaker or support
for the minor child during the time the child resided with him
and White.
The testimony in the record shows that White was the
primary caregiver for the minor child from the age of 8 months
onward.
White provided some financial support for the child,
and all caregiving duties and support.
The paternal
grandfather, Glen Gemmer, passed away in October, 2000.
point the child was five years old.
At that
Bryan Gemmer had
continually refused all contact with his daughter during her
life, and did not provide financial support, care or custody for
the child.
The child’s mother similarly had little or no
contact with the child from the age of 8 months onward.
The
biological parents provided little or no emotional, financial or
other support for the minor child.
-2-
Following Glen Gemmer’s death, White filed a Petition
for Custody of M.G. in December, 2000.
The biological parents
did not respond to that petition, and did not object to it.
The
trial court awarded temporary custody of the minor child to
White in December, 2000.
Neither biological parent contested
this award or sought custody of the child.
White continued to
care for and support the child as he had done since she was less
than a year old.
case.
The trial court took no further action in the
In March, 2002, White filed an Amended Petition for
Custody stating that he was the de facto custodian of M.G.
In
the Amended Petition for Custody White requested child support
for the child, and a declaration that he was the de facto
custodian of the minor child.
Appellee Bryan Gemmer, the
biological father of the minor child, responded to the Amended
Petition, and demanded custody of the minor child, who was by
this point eight years old.
This was the first time that the
record reflects any pleading filed by a biological parent.
KRS 403.270 provides guidelines for determining whether
an individual is the de facto custodian of a minor child.
A de
facto custodian is the individual who:
[H]as 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 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
-3-
age or older or has been placed by the Department of
Social Services.
Id., at subsection (1)(a).
White asserts that as he became the
primary custodian and caregiver of the minor child when she was
under three years of age, the six month period should have been
used to determine whether he was the de facto custodian of the
minor child.
The trial court stated that White only became
custodian of the child when Glen Gemmer died, six months prior
to the filing of the petition.
The trial court held that White
would have to have cared for the child for one year or more on
his own to be considered a de facto custodian of the child.
The Boone County Family Court held that White was not
the de facto custodian of the minor child.
The trial court
asserted that there was not clear and convincing evidence
showing that White resided with the minor child and cared for
her prior to Gemmer’s death.
Contrary to the trial court’s
assertion, the record shows that White did support and care for
the child from the age of nine months onward, with little or no
outside assistance from maternal or paternal relations.
Rather than finding that White was the primary
caregiver for M.G. from the age of nine months onward, the trial
court held that White had only cared for and supported M.G.
since the death of Glen Gemmer in October 2000, when the child
was six years old.
White appeals the findings of the family
-4-
court and asserts that this finding is improper, and should be
reversed.
White provided evidence showing that he was the
primary caretaker for the child for five years.
White also
argued that neither biological parent had requested custody
until two years after Gemmer’s death, at which time he had been
the primary and sole caregiver and financial support for the
child for over two years.
White asserts that he had been the
primary custodian and financial support of the minor child from
October, 2000, through March, 2002.
This period is longer than
the year required by KRS 403.270 to provide de facto custodian
status.
In its judgment, the trial court noted that neither
parent had made a request for custody of the minor child after
Glen Gemmer’s death, but stated that “the Court surmises that
the Respondents did not agree with the Petitioner’s [White’s]
request for custody. . . .”
court’s surmise.
No pleadings support the trial
The record reflects that White had been the
primary caregiver for the minor child for over a year.
For this
reason, he was legally entitled to be found a de facto
custodian.
The parents did not object to White’s temporary custody
of the minor child until 2002 when White requested that they
provide some financial support for the child.
The proceeding
initiated by White, in which neither parent took part, was not
-5-
sufficient to toll the period of time for determination of de
facto custodian status.
The statute at issue expressly provides
that “any period of time after a legal proceeding has been
commenced by a parent seeking to regain custody of a child shall
not be included in determining whether the child has resided
with the person for a required minimum period.”
KRS 403.270(2).
Because no proceeding for custody was commenced by either
biological parent until 2002, White should properly have been
found the de facto custodian of the minor child.
The trial
court’s determination is reversed and the case remanded for
proceedings consistent with this opinion.
Gemmer urges dismissal of this appeal, claiming that it
is premature.
Gemmer argues that the trial court’s order was
not final and appealable, as the trial court did not make a
custody award with regard to the minor child.
KRS 403.270
provides that where an individual is considered the de facto
custodian of a child, that individual has standing to contest a
request for custody by a biological parent.
In the absence of a
court’s finding that an individual is a de facto custodian, a
third party may not have standing to contest a biological
parent’s demand for custody.
The case could not have continued
had the trial court’s determination not been appealed.
Where
the legal issue raised is answered, and a determination on the
merits is made, the action is final and appealable.
-6-
Whittaker
v. Morgan, Ky., 52 S.W.3d 567 (2001).
For this reason, the
trial court’s determination was a final order, and was properly
appealable.
Based upon the foregoing, the judgment of the Boone
County Family Court is reversed and remanded for findings
consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
L. Craig Kendrick
Florence, Kentucky
BRIEF FOR APPELLEE, BRYAN
GEMMER:
William G. Knoebel
Florence, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
