TRACY FELDPAUSCH v. MARY ADAMS
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RENDERED: MAY 26, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002136-ME
AND
NO. 2005-CA-001184-ME
TRACY FELDPAUSCH
APPELLANT
APPEALS FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 03-CI-01717
v.
MARY ADAMS
APPELLEE
OPINION
AFFIRMING IN PART
AND
VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
DYCHE AND VANMETER, JUDGES; BUCKINGHAM, SENIOR JUDGE.1
VANMETER, JUDGE:
Tracy Feldpausch appeals from orders entered
by the Daviess Circuit Court declaring appellee Mary Adams2 to be
a de facto custodian of Feldpausch’s children, awarding custody
of the children to Adams, and suspending Feldpausch’s visitation
rights.
For the reasons stated hereafter, we affirm as to the
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
2
Formerly listed in court documents as Mary Wilson.
de facto and custody issues, but we vacate and remand for
further proceedings as to the issue of visitation.
Feldpausch is Adams’ former daughter-in-law3 and the
mother of two children who were born in August 1999 and
September 2002.
In December 2003, Adams filed a verified
petition seeking a determination that she is the children’s de
facto custodian.
child custody.
She also filed a motion requesting an award of
According to Adams, she was awarded temporary
custody of the children in December 2002, but the district court
returned custody to the children’s parents in January 2003
contingent on the parents obtaining housing.
Feldpausch and the
children then entered a shelter which they were asked to leave
after ninety days due to Feldpausch’s rule infractions.
The
children and both parents then returned to Adams’ home, where
they remained until July 2003, when they moved to Pennsylvania
for a short time before returning to Adams’ home.
Adams
eventually asked the parents to leave her home, and she was
awarded temporary custody of the children in August 2003.
Adams
asserted that the older child had resided primarily with her for
approximately four years beginning shortly after her birth, that
the younger child had resided primarily with her for
approximately fifteen months beginning shortly after his birth,
and that she had been each child’s primary caretaker and
3
Adams’ son, who testified in her favor, is not a party to this proceeding.
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financial supporter.
Adams further asserted that she satisfied
statutory requirements4 for seeking de facto custodian status and
custody, as she had been the four-year-old child’s caregiver for
over one year, and the fifteen-month-old child’s caregiver for
over six months.
Feldpausch filed a verified response asserting that
she was capable of properly providing for the children and that
she should be awarded their sole custody.
She requested the
circuit court to dismiss Adams’ petition or, alternatively, to
award custody of the children to her even if Adams was
determined to be a de facto custodian.
The parties agreed to bifurcate the issues of de facto
status and custody.
As to the de facto issue, the parties
stipulated before a commissioner that Adams had been the
children’s primary caregiver since the district court awarded
her temporary custody in August 2003.5
In his May 2004
recommendation to the trial court, the commissioner noted that
the district court records indicated that Adams had temporary
custody of the children between December 20, 2002, and January
10, 2003, but Feldpausch then regained custody.
However, the
district court modified custody again on May 23, 2003, by
4
KRS 403.270(1)(a).
5
Feldpausch’s stipulation was subject to her contention that the time period
described in KRS 403.270(1)(a) ceased to run once she attempted to regain
custody of her children.
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strictly providing that although the parents could remain with
the children, the children must live with Adams because the
parents were unable to properly provide for them.
Adams was
given temporary custody by agreement in August 2003, and she was
given full custody of the children in September 2003 after the
district court found that the parents were unable to care for
them.
The commissioner found that Adams had been the primary
caregiver for each child for at least a year.
He agreed with
the district court’s finding that the parents had been unable to
provide care and support for the children, but that Adams had
provided such care and support and had satisfied the statutory
requirements.
The circuit court subsequently adopted the
commissioner’s findings and declared Adams to be the children’s
de facto custodian.
Appeal No. 2004-CA-002136-MR followed.
Subsequently, the commissioner recommended that the
court should find that the evidence did not support Feldpausch’s
assertion that she was capable of raising the children and
should be granted their custody.
The commissioner noted
Feldpausch’s inconsistent statements, her many moves, her
failure to provide adequate living arrangements or income, and
her failure to comply with court orders relating to the children
or to demonstrate her ability to provide for their basic needs.
The commissioner concluded that returning the children to
Feldpausch would not be in their best interests.
-4-
He further
found that the children’s needs had been met by Adams and
recommended that she be granted custody of them.
Meanwhile, based on substantiated reports that
Feldpausch had neglected or abused the children, Adams moved to
suspend Feldpausch’s visitation with the children until the
Department for Community Based Services could determine that she
no longer endangered them.
On May 12, 2005, the trial court
entered separate orders adopting the commissioner’s
recommendations, and suspending Feldpausch’s visitation with the
children.
Appeal No. 2005-CA-001184-MR followed.
As the two
appeals now have been joined for this court’s consideration, we
will treat them as a single entity for purposes of review.
Feldpausch first contends that the trial court erred
by finding that Adams is the children’s de facto custodian.
disagree.
KRS 405.020(3) provides that although parents have
joint custody over their minor children,
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 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 403.270(1) in turn defines “de facto custodian” as
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We
(a) . . . 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 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.
A custody determination must be made in accordance with the
child’s best interests, and “equal consideration shall be given
to each parent and to any de facto custodian”6 after the court’s
consideration of all relevant factors including those set out in
KRS 403.270(2).
Here, although it was not undisputed, substantial
evidence was adduced to support the trial court’s determination
that Adams was the primary caregiver and financial supporter of
6
KRS 403.270(2).
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the older child for at least one year, and the younger child for
at least six months.
More specifically, evidence was adduced to
show that the children lived in Adams’ home for all but several
months of their lives, and that Adams was their primary
caregiver and financial supporter even when the children’s
parents also resided in her home with the children.
Moreover,
there is no merit to Feldpausch’s assertion that the running of
time for calculating the length of the children’s residence with
Adams was tolled by Feldpausch’s response to Adams’ petition, as
KRS 403.270(1)(a) permits such a tolling of time only where a
legal proceeding is “commenced,” rather than merely defended as
here, by a parent who seeks to regain child custody.7
It
follows, therefore, that the trial court did not clearly err8 by
finding that Adams qualified as a de facto custodian of the
children.
Feldpausch next asserts that the trial court abused
its discretion by failing to award custody of the children to
her.
However, once Adams was determined to be the children’s de
facto custodian, she and the parents were entitled to equal
consideration for purposes of determining custody in accordance
with the children’s best interests.9
Given the substantial
7
Sherfey v. Sherfey, 74 S.W.3d 777, 781 (Ky.App. 2002).
8
CR 52.01.
9
KRS 403.270(2).
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evidence adduced regarding the care provided by Feldpausch and
by Adams, we cannot say that the trial court abused its
discretion by determining that the children’s best interests
would be served by the award of custody to Adams.
Next, Feldpausch contends that the trial court abused
its discretion by suspending her visitation with the children.
For the reasons stated hereafter, the court’s order as to
visitation must be vacated and this matter must be remanded to
the trial court for further proceedings.
KRS 403.320(3) provides that a noncustodial parent’s
visitation rights shall not be restricted unless the court
“finds that the visitation would endanger seriously the child’s
physical, mental, moral, or emotional health.”
The record shows
that on May 12, 2005, the trial court entered an order
concluding that the ordered visitation “has not worked,” and
suspending visitation pending further orders.
The court found
the testimony of social worker Jennifer
Shelton and CASA worker Karen Pannell more
credible than other witnesses, and thus
finds that the environment in which the
children are visiting with Respondent Tracy
Feldpausch is a dysfunctional environment;
that in the dwelling where the children
visit, there are dog feces on the floor,
there is urine throughout the dwelling, and
the dwelling is filthy. At the mall visits,
the court finds that the children are
exposed to injury, the danger of being
kidnapped, that the children are improperly
supervised, and that incidents of abuse or
neglect against the children have occurred.
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However, the court did not find “that the visitation would
endanger seriously the child’s physical, mental, moral, or
emotional health.”10
Certainly the court’s findings raised serious concerns
and provided justification for modifying the venues and
conditions of visitation.
However, the court made no findings
regarding the existence or absence of possible alternatives to
the present venues and conditions of visitation, or regarding
whether the children would be seriously endangered if visitation
was conducted in a more appropriate setting.
Pursuant to KRS
403.320, Feldpausch was entitled to exercise “reasonable
visitation rights” with the children unless the court
specifically determined that visitation would seriously endanger
them.
Absent such a finding, the trial court was prohibited
from suspending her visitation with the children.
We recognize that more than one year now has passed
since entry of the order suspending visitation.
Obviously, in
that time circumstances may have changed greatly, or not at all.
On remand, therefore, the court’s May 2005 order regarding
visitation should be vacated and, after further proceedings are
conducted, a new order concerning visitation should be entered
in accordance with KRS 403.320.
10
KRS 403.320.
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Finally, Feldpausch contends that the application of
KRS 403.270 infringes upon her fundamental and constitutional
rights as a parent to raise her children.
However, this issue
was not raised below, and it shall not be considered on appeal.
The court’s orders are affirmed in part, and vacated
and remanded in part for further proceedings consistent with the
views stated in this opinion.
DYCHE, JUDGE, CONCURS.
BUCKINGHAM, SENIOR JUDGE, CONCURS IN PART AND DISSENTS
IN PART.
BUCKINGHAM, SENIOR JUDGE, CONCURRING IN PART AND
DISSENTING IN PART:
in part.
I concur in part and respectfully dissent
I concur with the portion of the majority opinion that
holds the trial court did not err by finding that Adams was the
children’s de facto custodian.
However, I dissent from the
portion of the opinion that vacates the trial court’s order
regarding visitation.
As the majority notes, a noncustodial parent is entitled to
reasonable visitation rights unless the court finds that
visitation would seriously endanger the child’s physical,
mental, moral, or emotional health.
See KRS 403.320(1).
Although the trial court did not use those exact words in its
order, I believe it clearly made such a finding.
The court
found that incidents of abuse or neglect against the children
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have occurred and that the children are exposed to injury and
the danger of being kidnapped on mall visits.
The court also
found that the children are in a dysfunctional environment while
visiting with Feldpausch.
I conclude that these findings are
sufficient to comply with the requirements of the statute.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donna M. Dant
Calhoun, Kentucky
Misty Lee Miller
Owensboro, Kentucky
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