STEVEN HUNTER LONDON, DIVISION 5 v. LATONYA COLLINS
Annotate this Case
Download PDF
RENDERED: NOVEMBER 30, 2007; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2007-CA-000529-ME
STEVEN HUNTER LONDON
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT, DIVISION 5
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 06-CI-500769
LATONYA COLLINS
APPELLEE
OPINION VACATING
AND REMANDING
** ** ** ** **
BEFORE: HOWARD, NICKELL AND TAYLOR, JUDGES.
HOWARD, JUDGE. Appellant, Steven Hunter London (hereinafter Steven), appeals
from an order of the Jefferson Family Court, entered February 27, 2007, denying his
petition for custody of his biological daughter, J.T. Because we conclude that, on the
facts of this case, an order of permanent custody entered in a previous dependency action
was not a “custody decree” as envisioned by KRS Chapter 403, so that the requirements
of KRS 403.340(2) to modify custody would apply, and that the trial court erred in
finding that the appellee was a de facto custodian without a sufficient evidentiary record,
we vacate the February 27, 2007, order and remand.
J.T. is the biological daughter of Steven and Re'Shae Todd (hereinafter
Re'Shae). When J.T. was born, both Steven and Re'Shae were teenagers. The child
resided with Re'Shae and they primarily resided with Re'Shae's grandmother, Ginny
Todd. Steven attended college and later took a job that required extensive travel. In
December 2004, a dependency, abuse and neglect action was instituted against Re'Shae.1
Steven was contacted and appeared for the temporary removal hearing on December 22,
2004. At that time he agreed that it was in J.T.'s best interest that Re'Shae's cousin,
LaTonya Collins (hereinafter LaTonya), take temporary custody of J.T. He had not spent
much time with J.T. prior to that date and he was single, traveled extensively for his job
and had two male roommates.
The next court date was set for February 23, 2005, (hereinafter the 2005
hearing). The Family Court docket reflects that the case was set for a pretrial conference.
However, in January, 2005, approximately one month before that hearing, the mother,
Re'Shae, died. At the hearing the Family Court acknowledged Re'Shae's death and
questioned whether further proceedings could be held without notice to the fathers.2 The
social worker advised the court that J.T.'s father was present and that he had agreed that
Because the complete record of the dependency action is not before this Court, the
circumstances under which the petition was brought are not completely clear. However, those
facts are not necessary to a determination of the issues on this appeal.
1
Another of Re'Shae's children was also the subject of the dependency action. Steven was not
the father of that child. Apparently neither of the fathers had been noticed for that hearing,
although Stephen was present.
2
-2-
LaTonya should have permanent custody. Accepting that statement and without hearing
any evidence, the Court signed an order awarding permanent custody to LaTonya,
pursuant to KRS 620.027. Significantly, Steven was not represented by counsel at that
hearing, was not advised of his right to counsel or of his rights as a parent to custody of
his child, nor was he questioned by the court as to whether or not he agreed to the award
of permanent custody. In fact, he never spoke at that hearing at all.
After the 2005 hearing, Steven started spending more and more time with
J.T. and at the time he filed his petition for custody, he was married, had stopped
traveling extensively for his job and, according to both him and LaTonya, was caring for
J.T. approximately 49% of the time.
On January 11, 2006, Steven filed a motion in the dependency action to
modify the custody order. He remanded the motion on February 2, 2006,3 and then filed
a separate petition for custody on February 24, 2006. In the petition he claimed that he
had informally agreed with LaTonya that when he discontinued traveling and established
a permanent home for J.T., the informal custody arrangement would be modified; that
there was a substantial change in the circumstances of the parties; and that it was in the
best interests of J.T. that the order for permanent custody be modified and that he be
granted custody. In her response, LaTonya disputed the reason for the placement, stating
that J.T. was placed with her because Steven had no relationship with J.T. and had made
Steven maintains that he was informally advised by the court that he could not pursue custody
of J.T. in the dependency action, but was required to file a separate petition for custody. The
record neither supports nor refutes that assertion.
3
-3-
little or no effort to visit her since her birth, until that time. LaTonya further denied that
the best interests of J.T. would be served by the award of custody to Steven.
The matter came on for hearing on November 30, 2006, at which hearing
Steven, LaTonya and Ginny Todd all testified. Steven testified that he understood the
2005 hearing was to continue temporary custody with LaTonya but that he did not
understand that it was to consider permanent custody. LaTonya testified that she
understood that the hearing was for permanent custody because the social worker had
explained that to her prior to the hearing. She also testified that when she inquired of the
social worker whether Steven had agreed for her to have “sole” custody, the social
worker stated that Steven had indicated that he wanted “joint” custody with LaTonya but
that she (the social worker) thought it was in J.T.'s best interests for LaTonya to have sole
custody. Before ruling on Steven's petition for custody, the Family Court continued the
hearing to allow the parties to depose the social worker. However, that deposition was
never taken. Steven instead filed a motion to submit the case for a decision.
The Family Court entered its order on February 27, 2007, finding that
LaTonya was a de facto custodian pursuant to KRS 403.270(1)(a) and that, pursuant to
KRS 403.270(1)(b), she had equal standing with Steven in custody matters regarding
J.T. The Court then found that, because less than two years had passed since the
February 23, 2005, permanency order4 and Steven presented no evidence that J.T. might
By the time this order was entered, just more than two years had passed, from February 23,
2005 to February 27, 2007. However, if the requirements of KRS 403.340 for modification of a
custody decree applied, the critical date would be that of the filing of Steven's Petition for
Custody, February 24, 2006, and the court was correct in applying the more stringent
requirements for motions to modify custody decrees less than two years old.
4
-4-
be harmed by her present environment, he had failed to meet the statutory requirements
of KRS 403.340 to modify custody. The Court also found that Steven's failure to object
at the 2005 hearing precluded his claim that he did not agree to the grant of permanent
custody to LaTonya. The Court ordered that LaTonya should retain permanent custody
of J.T. It is from this order that Steven appeals.
On appeal, Steven disputes the findings by the Family Court that he was
present at the 2005 hearing, or that any hearing was held before the award of permanent
custody; that the parties ever agreed that LaTonya would have permanent custody of
J.T.; or that LaTonya was the de facto custodian of J.T.
Findings of fact may be set aside only if they are clearly erroneous. CR
52.01. Whether or not the findings are clearly erroneous depends on whether there is
substantial evidence in the record to support them. CR 52.01; Reichle v. Reichle, 719
S.W.2d 442, 444 (Ky. 1986). If the findings are supported by substantial evidence, then
appellate review is limited to whether the facts support the legal conclusions made by the
finder of fact. The legal conclusions are reviewed de novo. Brewick v. Brewick, 121
S.W.3d 524, 526 (Ky. App. 2003). Finally, if the factual findings are not clearly
erroneous and the legal conclusions are correct, the only remaining question on appeal is
whether the trial court abused its discretion in applying the law to the facts. B.C. v. B.T.,
182 S.W.3d 213, 219 (Ky. App. 2005).
We first address Steven's argument that he was not present at the 2005
hearing, when the order granting permanent custody to LaTonya was entered.5 Although
At oral argument, Steven's counsel conceded that the record reflects that he was present at this
hearing, although he took no active part.
5
-5-
he apparently had no formal notice of that hearing, a review of the video record supports
the Family Court's finding that Steven was present. However, given the circumstances
surrounding the proceedings, as set out below, it appears quite likely that Steven may not
have understood what went on at that hearing.
We next turn to what we see as the primary issue in this case, the Family
Court's finding that Steven's petition for custody should be treated as a motion to amend a
previous custody decree, under KRS 403.340, and that Steven's failure to present
evidence that J.T. would be harmed if she remained in her present environment was fatal
to that petition. KRS 403.340(2) provides,
No motion to modify a custody decree shall be made earlier than two (2)
years after its date, unless the court permits it to be made on the basis of
affidavits that there is reason to believe that:
(a) The child's present environment may endanger seriously
his physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed the
child with a de facto custodian.
If KRS § 403.340 is applicable, then KRS § 403.350, which requires a
motion to modify a custody decree to be supported by affidavits setting forth facts
supporting the motion, is also applicable. Appellant's failure to file the supporting
affidavits would itself be fatal to his petition, as the Family Court would not have the
authority to consider his motion to modify custody. Robinson v. Robinson, 211 S.W.3d
63 (Ky. App. 2006).
The essential question then is whether the 2005 order of permanent custody
in the dependency action was a “custody decree” as envisioned by KRS Chapter 403 so
-6-
that the procedural requirements of KRS 403.340 for modification would apply. We hold
that, under the unique circumstances of this case, the 2005 order was not such a custody
decree.
We first note that Chapter 620 of the Unified Juvenile Code is only
applicable to children who are alleged to be dependent, neglected and abused, with the
express purpose, according to KRS 620.010, of protecting their fundamental rights,
including but not limited to,
adequate food, clothing and shelter; the right to be free from physical,
sexual or emotional injury or exploitation; the right to develop physically,
mentally, and emotionally to their potential; and the right to educational
instruction and the right to a secure, stable family.
However, KRS 620.100 also provides significant protections of the parent's
superior right to custody. Thus, a Court considering such an action is required to advise
the parent or other person exercising custodial control of his right to appointment of
counsel. If the parent is unable to afford counsel pursuant to KRS Chapter 31, the Court
is required to appoint counsel. During the proceedings a permanency plan for the child is
developed with the goal either of returning the child to the parent or for the termination of
parental rights. Steven was unrepresented in the dependency action and it does not
appear that he was ever advised of these rights. Neither does it appear that any
permanency plan was developed, either to “return” J.T. to Steven or to terminate his
parental rights.6
There is nothing in the record suggesting that there were ever any grounds for terminating
Steven's parental rights, under KRS 625.090.
6
-7-
KRS Chapter 403 applies specifically to actions for dissolution of marriage
and child custody issues in that context. However, its custody provisions are also
referenced by various other sections of the Kentucky Revised Statutes, including Chapter
620, as will be discussed below. The stated purpose of Chapter 403 as it relates to the
custody of children is to “[m]itigate the potential harm to the spouses and their children
caused by the process of legal dissolution of marriage.” KRS 403.110(3).
Before a custody decree is entered the trial court must determine what
custody arrangement will be “in accordance with the best interests of the child.” KRS
403.270(2). In order for the Court to consider the child's best interests, the parties,
including any de facto custodian, are given a meaningful opportunity to be heard. KRS
403.270(2) also sets out nine specific factors which the court must consider in
determining the best interests of the child. Once these proceedings are concluded and a
“custody decree” is entered, KRS 403.340 allows for modification only under very
limited circumstances. The obvious intent of the time and pleading requirements of KRS
403.340 and 403.350 is to prevent continuing litigation of custody after the issues have
been fairly concluded between the parties. Quisenberry v. Quisenberry, 785 S.W.2d 485,
488 (Ky. 1990) (superceded on other grounds by 2001 Ky. Acts Ch. 161, Sec. 2).
While this appears to be a question of first impression in Kentucky, we
believe that for a custody order to be a “custody decree,” within the meaning of KRS
Chapter 403, it must be based on the standards set out in KRS 403.270(2). A
permanency order in a dependency action, under KRS Chapter 620, can and ordinarily
should satisfy this requirement. KRS 620.027 provides,
-8-
The District Court has jurisdiction, concurrent with that of Circuit Court,
to determine matters of child custody and visitation in cases that come
before the District Court where the need for a permanent placement
and custody order is established as set forth in this chapter. The District
Court [or Family Court], in making these determinations, shall utilize
the provisions of KRS Chapter 403 relating to child custody and
visitation. . . .
Therefore, if a permanency order in a dependency action brought under
Chapter 620 complies with KRS 403.270(2) and is based on the best interests of the
child, determined after considering the factors set out in that statute, we that believe it
would qualify as a “custody decree” and that the requirements of KRS 403.340 would
have to be satisfied in order to amend it. However, while the February 23, 2005,
permanency order in this case recites that it is based on KRS 403.270(2) findings, it is
clear that this was not, in fact, the case.
The dependency action in this matter was instituted against Re'Shae, and
not against Steven. There was no allegation of any action Steven had taken or not taken
with regard to J.T. He was not appointed counsel. There is no indication that he was
advised either of his right to counsel or of the fact that he could be waiving his superior
right to custody of J.T. by allowing for placement with LaTonya. Indeed, the order of
permanent custody does not even recognize that Steven was in attendance or ever
mention him. It specifically states that notice to the parents was not provided because
“mother is deceased.” Apparently because the court believed that the parties had agreed
to the placement with LaTonya, there was no evidence taken, let alone that required to
make the findings necessary to support an award of custody pursuant to KRS 403.270.
-9-
The February 23, 2005, order, entered on AOC form DNA-9, recited, in the
language of the form, that it was based upon “the length of time the child has been in the
care of LaTonya Collins; the existence of a stable custodial relationship; the current
ability of the parent(s) to provide for the child; need for permanency for the child, and the
following factors required by KRS 403.270 (check all that apply).” Checked by the court
were, “interaction and interrelationship of the child with parent(s), siblings, and anyone
else who may significantly effect the child's best interests;” “child's adjustment to his/her
home, school and community;” and “mental and physical health of all individuals
involved.” However, there was no evidence taken at this hearing upon which such
findings could have been based. The permanency order appears, in fact, to have been
based solely on the social worker's unsworn statement that the parties had agreed that
permanent custody be given to LaTonya. Even that statement is now called into question
by LaTonya's testimony that the social worker told her at that same time that Steven
wanted joint custody, but that it was her opinion that awarding sole custody to LaTonya
was in J.T.'s best interests.
We are further convinced by the fact the 2005 hearing was not noticed as a
custody hearing or a hearing to determine the permanent placement of J.T., but as a “pretrial conference;” that Steven was not questioned by the court as to his understanding of
the custody “agreement;” and that LaTonya had not filed any petition for custody of J.T.
Indeed, she would not have had standing to do so, as the hearing took place less than two
months after J.T. was temporarily placed in her home, following the temporary removal
hearing. She clearly was not yet a “de facto custodian,” pursuant to KRS 403.270(1).
-10-
As such, we hold that the February 23, 2005, permanency order in question
in this case was not a “custody decree” within the meaning of KRS Chapter 403 and that
the requirements of KRS 403.340 for modification of a custody decree are inapplicable.
Therefore, the Family Court was required to consider Steven's petition for custody as if
there had been no prior custody determination.
The Family Court also concluded that the order giving permanent custody
of J.T. to LaTonya should not be disturbed because Steven was present at the February
23, 2005, hearing but failed to object to the social worker's representation to the Court
that the parties agreed that LaTonya should have permanent custody. Implicit in this
holding is a finding that, by failing to object, Steven waived his superior right, as a
parent, to custody of J.T., at the 2005 hearing.
The Courts of the Commonwealth have consistently recognized a parent's
superior right to the care and custody of his biological children and that he has a
fundamental, basic and constitutionally protected right to raise his own children. Moore
v. Asente, 110 S.W.3d 336 (Ky. 2003). Clearly, it is possible for a biological parent to
relinquish or waive that superior right to custody. But it should not happen by accident,
without the parent understanding or being advised what he is giving up, or without a
specific finding by the court that such a waiver has occurred. In Moore, the Kentucky
Supreme Court established the factors to be considered in determining whether such a
waiver has occurred:
In determining whether parents have relinquished “physical custody” in a
manner that confers standing upon a nonparent, Kentucky trial courts-like
other courts that have addressed this issue-should consider, among other
-11-
factors: (1) how possession of the child was acquired by the nonparent,
especially the intent of the parents at the time of their relinquishment of the
child to the nonparent; (2) the nature and duration of the possession by the
nonparent; (3) the age of the child when possession was acquired by the
nonparent and the child's age when the parents sought the child's return; (4)
any visits by the parents during the nonparent's possession of the child; (5)
any financial support by the parents during the child's stay with the
nonparent; (6) the length of time between the relinquishment and the
parent's efforts to secure the child's return; and (7) what efforts the parents
made to secure the child's return. Although we recognize that these factors
cannot be applied mechanically as a formula to generate a conclusive
answer as to the nonparent's standing, we believe these factors are useful
analytical tools. We further recognize that although factors (1) and (2) will
usually have the most importance, the other factors may also impact upon
the determination.
Id. 110 S.W.3d at 358-359.
Steven has consistently maintained that he and LaTonya agreed only to a
temporary custody arrangement and that once the circumstances changed the arrangement
was to be modified. We find nothing in LaTonya's testimony that refutes that assertion.
Given Steven's circumstances and Re'Shea's very recent death, it seems reasonable to
conclude that the parties may have agreed in 2005, that the child should be placed with a
close relative temporarily, but not intended that Steven was giving up his superior right to
custody permanently. In fact, from the testimony at the hearing on this petition, it
appears clear that Steven began spending more and more time with J.T. immediately
following that 2005 hearing.
We believe that in light of the circumstances of this case, as set out above, and
especially the fact that Steven was unrepresented and the court's failure to advise him of
his rights or to question him concerning his understanding of what he was giving up,
-12-
Steven's silence did not constitute a waiver of his superior right to custody of his child, or
his agreement to an award of permanent custody to LaTonya.
We next address the Family Court's finding that LaTonya was a de facto
custodian and therefore on the same footing with Steven as to the custody of J.T. KRS
403.270 provides,
(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 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.
The provisions of this statute are not triggered unless the biological parent
has abdicated the role of primary caregiver and primary financial supporter to the person
who claims to be the de facto custodian for the required period of time. There must be a
finding that the “de facto custodian” has been the primary caregiver and financial
supporter of the child.
However, no evidence was taken at the hearing on Steven's petition for
custody to establish whether LaTonya was the primary caregiver for, and primary
-13-
financial supporter of, J.T., for the required period of time. The only fact established to
support a finding that LaTonya was a de facto custodian was that J.T. had primarily
resided with her since the temporary custody placement, but was presently spending 49%
of the time with Steven. Therefore, while LaTonya may have become a de facto
custodian, the trial court lacked a sufficient evidentiary basis for such a finding. On
remand, the court should hear evidence and make the necessary findings on which to base
such a determination. If LaTonya is then found to be a de facto custodian, the Family
Court will be required by KRS 403.270 to determine custody between Steven and
LaTonya based on the best interests of J.T., giving equal consideration to both parties,
and using the factors set out in KRS 403.270(2). If LaTonya is not found to be a de facto
custodian, custody should be awarded to Steven.
Based on the foregoing, we vacate the February 27, 2007, order of the
Jefferson Family Court and remand this matter to that court for further proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
John Allen Taylor
Louisville, Kentucky
James C. Nicholson
Louisville, Kentucky
-14-
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.
