CHRISTOPHER MCDOWELL v. BOBBY JO DAILY AND DOROTHY GOODMAN
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RENDERED: APRIL 29, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002453-MR
CHRISTOPHER MCDOWELL
APPELLANT
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE KRISTI HOGG GOSSETT, JUDGE
ACTION NO. 03-CI-00031
v.
BOBBY JO DAILY
AND DOROTHY GOODMAN
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
HENRY AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
HENRY, JUDGE:
Christopher McDowell appeals from a September 9,
2003 order of the Carter Circuit Court awarding custody of his
minor child, Briana Goodman, to Dorothy Goodman, the child’s
maternal grandmother.
Upon review, we vacate and remand for
further findings.
On January 30, 2003, McDowell filed a Petition for
Custody of Minor Child in the Carter Circuit Court seeking to
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and
KRS 21.580.
obtain custody of Briana, who was then two years of age.
At the
time of the filing of the petition, Briana’s mother, Bridgett
Goodman,2 had recently passed away, and temporary custody of
Briana had been granted to Bobby Jo Daily, Briana’s maternal
aunt.
Briana had been living with her mother, half-sister, and
maternal grandmother, Dorothy Goodman, before her mother’s
death, and she, along with her half-sister and grandmother,
moved in with Daily once the order of temporary custody was
rendered.
Daily responded to McDowell’s petition for custody on
February 12, 2003 with a counter-petition for permanent custody.
On April 15, 2003, Dorothy Goodman filed a motion to intervene
and also asked for permanent custody of Briana.
Following a
hearing, the trial court requested an investigation and report
on Briana’s custodial arrangements from the Carter County
Department for Community Based Services.
The report revealed that Briana, her half-sister, and
her mother had spent a considerable amount of time in the Dailey
household and that Goodman had lived with her daughter and two
granddaughters for as long as the girls had been alive.
It also
indicated that Briana had a close relationship with her halfsister.
The report also revealed that McDowell was injured in
an automobile accident when Briana was a month old, and that he
2
Goodman and McDowell were never married.
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suffered a closed head injury and a stroke as a result of the
accident.
Afterward, McDowell began living with his mother,
stepfather, and half-sister while attending a day treatment and
workshop program.
McDowell continues to be generally confined
to a wheelchair and to suffer from memory loss, impaired shortterm memory, and difficulty with balance.
The report further
indicated that McDowell relied upon his family for assistance in
almost all of his activities of daily living and that S.S.I.
benefits were his primary source of income.
Among McDowell’s
expenditures were child support payments to Briana’s mother.
McDowell had spent little time with Briana prior to her mother’s
death, but at the time of the report, she had begun occasional
overnight visits with her father and his family.
On September 9, 2003, the trial court entered Findings
of Fact and Conclusions of Law and awarded custody of Briana to
Dorothy Goodman pursuant to KRS 403.270(2), particularly noting
that Briana has spent her entire life living with Goodman while
spending little time with McDowell.
The court further noted
Briana’s close relationship with her sister and the fact that
McDowell’s physical health limited his ability to interact with
and take care of Briana.
On September 19, 2003, McDowell filed
a motion to alter, amend or vacate the judgment; however, this
motion was overruled on October 6, 2003.
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This appeal followed.
McDowell raises the following contentions on appeal:
(1) the trial court erred in applying KRS 403.270 instead of KRS
405.020 to the custody determination; (2) the trial court erred
in using the “best interests” standard to determine custody; and
(3) the trial court erred in failing to determine whether
Dorothy Goodman was a de facto custodian to Briana.
McDowell argues that KRS 405.020, not KRS 403.270,
should have been applied by the trial court in determining who
should have been awarded custody of Briana.
In particular,
McDowell cites to KRS 405.020(1), which reads:
The father and mother shall have the joint
custody, nurture, and education of their
children who are under the age of eighteen
(18). If either of the parents dies, the
survivor, if suited to the trust, shall have
the custody, nurture, and education of the
children who are under the age of eighteen
(18). The father shall be primarily liable
for
the
nurture
and
education
of
his
children who are under the age of eighteen
(18) and for any unmarried child over the
age of eighteen (18) when the child is a
full-time high school student, but not
beyond completion of the school year during
which the child reaches the age of nineteen
(19) years.
What McDowell fails to acknowledge, however, is that
KRS 405.020(3) goes on to read:
Notwithstanding
the
provisions
of
subsections (1) and (2) of this section, a
person claiming to be a de facto custodian,
as defined in KRS 403.270, may petition a
court for legal custody of a child. The
court shall grant legal custody to the
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person if the court determines that the
person meets the definition of de facto
custodian and that the best interests of the
child will be served by awarding custody to
the de facto custodian.
KRS 405.020(4) further reads:
Notwithstanding
the
provisions
of
subsections (1) and (2) of this section, if
either parent dies and at the time of death
a child is in the custody of a de facto
custodian, as defined in KRS 403.270, the
court shall award custody to the de facto
custodian if the court determines that the
best interests of the child will be served
by that award of custody.
Accordingly, it is clear from a reading of KRS 405.020 that KRS
403.270 is the statute that should have been applied by the
trial court to the case at hand if Goodman was making a claim of
being a de facto custodian of Briana.
The trial court
apparently believed that such a claim was being made, as it made
reference to KRS 403.270 in its September 9, 2003 Conclusions of
Law.
In a related argument, McDowell contends that the
trial court erred in applying the “best interests” standard to
determine custody of Briana.
Again, however, KRS 405.020 and
KRS 403.270 both explicitly state that the “best interests”
standard is the one applicable to a situation where a de facto
custodian is seeking custody of a child.
Moreover, our case law
has repeatedly made clear that the general overriding
consideration in a dispute over custody of a minor child is the
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best interests of said child.
S.W.2d 765, 768 (Ky. 1993);
See Squires v. Squires, 854
Dull v. George, 982 S.W.2d 227, 230
(Ky.App. 1998); Davis v. Davis, 619 S.W.2d 727, 730 (Ky.App.
1981). (Citations omitted).
Accordingly, we agree with the
trial court that the “best interests” standard was applicable
here.
This having been established, we unfortunately must
conclude that the trial court erred in failing to make specific
and explicit factual findings and conclusions of law as to
whether Goodman is, in fact, the de facto custodian of Briana,
as defined by KRS 403.270(1)(a).
Such a determination of de
facto custodian status is required before a custody
determination can be made under the “best interests” standard.
See French v. Barnett, 43 S.W.3d 289, 291 (Ky.App. 2001).
Consequently, we must vacate the custody decision of the trial
court and remand this case for a determination as to whether
Goodman qualifies as the de facto custodian of Briana.
For the trial court’s guidance on remand, we note that
“[a]lthough a showing of ‘unfitness’ is not specifically
required by KRS 403.270(1), the prerequisites necessary to prove
‘de facto custodianship’ directly implicate at least two of the
former unfitness factors.
To be a de facto custodian under KRS
403.270(1)(a) a person must be the primary caregiver for and
financial supporter of the child.”
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Sherfey v. Sherfey, 74
S.W.3d 777, 782 (Ky.App. 2002), review denied, certiorari denied
537 U.S. 1110, 123 S.Ct. 892, 154 L.Ed.2d 782.
We also note
that a person’s standing as a de facto custodian must be shown
by clear and convincing evidence.
Diaz v. Morales, 51 S.W.3d
451, 455 (Ky.App. 2001).
In the event that Goodman is not found to be a de
facto custodian, the standard for determining whether she is
still entitled to custody of Briana is generally set forth in
Moore v. Asente, 110 S.W.3d 336, 359 (Ky. 2003):
Custody contests between a parent and a
nonparent who does not fall within the
statutory rule on 'de facto' custodians are
determined under a standard requiring the
nonparent to prove that the case falls
within one of two exceptions to parental
entitlement to custody. One exception to the
parent's superior right to custody arises if
the parent is shown to be 'unfit' by clear
and convincing evidence. A second exception
arises if the parent has waived his or her
superior right to custody.
Id. at 359 (Citations omitted); see also Vinson v. Sorrell, 136
S.W.3d 465 (Ky. 2004).
Accordingly, on remand, the trial court
should first determine if Goodman is Briana’s de facto
custodian, applying the criteria set forth in KRS 403.270.
If
it is found that Goodman meets these criteria, the court should
then determine if it would be within the best interests of the
child to give custody to Goodman.
If it is found that Goodman
does not meet the criteria to be a de facto custodian, the court
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should then determine the applicability of the exceptions to
parental custody set forth in Moore, supra and Vinson, supra.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
MaLenda S. Haynes
Grayson, Kentucky
Robin L. Webb
Grayson, Kentucky
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