TILLEY (ERNESTINE) VS. KILGORE (MICHELLE R.) K.A.K.; AND K.L.K.
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RENDERED: FEBRUARY 27, 2009; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000925-ME
ERNESTINE TILLEY
v.
APPELLANT
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE JOHNNY RAY HARRIS, JUDGE
ACTION NO. 07-CI-00153
MICHELLE R. KILGORE;
K.A.K.; AND K.L.K.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND MOORE, JUDGES; KNOPF,1 SENIOR JUDGE.
CLAYTON, JUDGE: This is an appeal of a custody case arising from the
dissolution of a nontraditional couple’s relationship in which Ernestine Tilley
(Tilley) sought joint custody of two children born to Michelle Kilgore during their
relationship. The trial court dismissed Tilley’s petition because she lacked
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Senior Judge William L. Knopf 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.
standing. She argues that she has standing to pursue the case. We disagree and
affirm the dismissal of her case.
Tilley and Michelle Kilgore (Kilgore) began cohabitating as a lesbian
couple sometime during the mid-1990’s. During this relationship, the couple
decided to start a family and twice utilized in vitro fertilization to do so. Kilgore
underwent the procedure and gave birth to two children, now ages ten and six.
The relationship deteriorated and the couple separated. On May 31,
2007, Tilley filed a petition seeking joint custody of the two children. Kilgore
responded with a motion to dismiss due to Tilley’s lack of standing to seek
custody. The trial court found Tilley did not have standing to seek custody and
dismissed the case. Tilley then moved to amend her petition and seek a new trial.
These motions were also dismissed. This appeal followed.
Kilgore gave birth to the two children and is the biological mother of
them. Not being a biological or adoptive parent, Tilley is considered a nonparent
for the purposes of a custody case. In order for a nonparent to have standing to
gain custody of a child, one of three factors must be met: the nonparent must be
deemed a “de facto custodian” as defined in KRS 403.270; the nonparent must
prove the parent is unfit; or the nonparent must prove the parent has waived his or
her right to superior custody. Moore v. Asente, 110 S.W.3d 336, 359-360 (Ky.
2003). Tilley alleges the first and third factors.
A determination of de facto custody requires the trial court to consider
KRS 403.270, which states:
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(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.
Here, the trial court found Tilley is not a de facto custodian. In order
to be considered a de facto custodian, the nonparent must be the primary caregiver.
There cannot be multiple primary caregivers. “[I]t is not enough that a person
provide for a child alongside the parent” but rather he must ‘“literally stand in the
place of the natural parent.”’ Boone v. Ballinger, 228 S.W.3d 1, 8 (Ky. App.
2007)(citing Consalvi v. Cawood, 63 S.W.3d 195 (Ky. App. 2001)). Since both
Kilgore and Tilley raised these children, there was no single primary caregiver.
Tilley cannot be a de facto custodian because she provided for the children next to
the biological parent and not in place of the biological parent.
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The case of Moore v. Asente, supra, discusses the other two options
for standing.
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.
Under the first exception, the nonparent must first
show by clear and convincing evidence that the parent
has engaged in conduct similar to activity that could
result in the termination of parental rights by the state.
Only after making such a threshold showing would the
court determine custody in accordance with the child’s
best interest. Under the second exception, however, if a
waiver has been shown by clear and convincing
evidence, the trial court shall determine custody between
the parent and nonparent based on the best interest of the
child. “Waiver requires proof of a ‘knowing and
voluntary surrender or relinquishment of a known right.’”
However, waiver may be implied “by a party’s decisive,
unequivocal conduct reasonably inferring the intent to
waive,” as long as “statements and supporting
circumstances [are] equivalent to an express waiver.”
(citations omitted).
Id. at 359-60. In the case at bar, only waiver is being alleged.
“A waiver of the parent’s superior right to custody requires statements
and circumstances equivalent to an express waiver. . . . Waiver requires that there
must be some statement or action that unequivocally waives the right to superior
custody.” Diaz v. Morales, 51 S.W.3d 451, 454 (Ky. App. 2001). Because a
parent’s superior right to custody is a right with “both constitutional and statutory
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underpinnings, proof of waiver must be clear and convincing. As such, while no
formal or written waiver is required, statements and supporting circumstances must
be equivalent to an express waiver to meet the burden of proof.” Vinson v. Sorrell,
136 S.W.3d 465, 469 (Ky. 2004).
“[A] reviewing court is entitled to set aside the trial court’s findings
when those findings are clearly erroneous. To determine whether findings are
clearly erroneous, reviewing courts must focus on whether those findings are
supported by substantial evidence.” Id. at 470. (citations omitted).
“[S]ubstantial evidence” is “[e]vidence that a reasonable
mind would accept as adequate to support a conclusion”
and evidence that, when “taken alone or in the light of all
the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men.” Regardless
of conflicting evidence, the weight of the evidence, or the
fact that the reviewing court would have reached a
contrary finding, “due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses” because judging the credibility of
witnesses and weighing evidence are tasks within the
exclusive province of the trial court. Thus, “[m]ere doubt
as to the correctness of [a] finding [will] not justify [its]
reversal,” and appellate courts should not disturb trial
court findings that are supported by substantial evidence.
(citations omitted).
Moore, 110 S.W.3d at 354.
In Moore v. Asente, supra, the Kentucky Supreme Court set forth
factors for courts to consider when determining whether parents have relinquished
custody in such a manner as to give a nonparent standing.
In determining whether parents have relinquished
“physical custody” in a manner that confers standing
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upon a nonparent, Kentucky trial courts-like other courts
that have addressed this issue-should consider, among
other 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. at 358-59.
Here, Tilley argues that a power of attorney document signed by both
parties was a waiver of Kilgore’s superior right to custody. Additionally, she
argues that because she was allowed to conduct herself as a custodian to the
children and the world, Kilgore waived her superior right to custody.
The trial court found that the power of attorney the parties executed
was not a waiver of superior right to custody, but merely a document allowing
Tilley to make decisions for the child regarding medical treatment and that no
where does the document waive Kilgore’s superior right to custody. The document
executed on August 22, 2000, when the parties still lived together states:
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Power of Attorney
Delegating Parental Authority
(With Consent for Medical Care)
BE IT KNOWN, that Michelle R. Kilgore, of
Hindman, KY, the undersigned parent or lawful guardian
(Grantor) of [K.A.K.], a minor child (Child), does hereby
grant to Ernestine Tilley, as Custodian of said Child, the
following powers, authorities and consents:
1. Grantor consents to the temporary custody of
said Child by the Custodian for the period and purpose as
follows: 08-10-98 to child’s eighteenth birthday.
Custodian has the right to make decisions for the Child if
medical problems or emergencies arise.
2. Grantor authorizes the Custodian to do and
undertake all acts as are reasonable and necessary to
protect the best interests and welfare of the Child while
under the care of the Custodian. Without limiting the
generality of the foregoing, the Custodian is further
authorized to provide emergency and general medical
care which the Custodian in his or her discretion deems
necessary or advisable for any illness or injury sustained
by the Child during this temporary custody.
3.
Grantor consents to any reasonable
discipline imposed upon Child by the Guardian provided
that said discipline does not constitute unreasonable
abuse.
4.
Grantor agrees to exonerate and hold
harmless the Custodian and its lawful agents and
employees from any loss or liability arising during this
custody, excepting for any acts of ordinary negligence,
gross negligence or wanton, willful or reckless conduct.
Grantor specifically agrees to reimburse Custodian for
any reasonable expenditures required for the proper care
of said Child.
Other: Notification of legal guardian of any action
taken per this Power of Attorney[.]
Signed this 22nd day of August, 2000. . . .
A review of the document by this Court supports the trial court’s
finding and we cannot reverse that finding as clearly erroneous.
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We also cannot apply the seven factors listed above to determine
whether Kilgore waived her superior right to custody because these factors
contemplate a relinquishing of physical custody, which did not happen here. See
Pickelsimer v. Mullins, 2008 WL 820947 (Ky. App. 2008) (a case which has a
factual situation similar to this one).2 Up until the separation and filing of the
custody petition, Kilgore did not relinquish physical custody to Tilley. In fact,
they shared physical custody.
Tilley also argues that she should have standing because the biological
father has waived his superior right to custody. However, since this was an in vitro
fertilization, the father contractually had no rights from the very beginning. This
means that there were no parental rights to waive in favor of Tilley. Because
Tilley is not a de facto custodian and there is not clear and convincing evidence
that Kilgore waived her superior right to custody, we find that Tilley’s case was
properly dismissed as she has no standing to bring a custody action.
For the foregoing reasons we affirm the dismissal of Tilley’s case due
to her lack of standing.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FILED FOR
APPELLEES.
Frank R. Riley, III.
Whitesburg, Kentucky
2
Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) allows this Court to consider unpublished
cases, when there is no published authority on the issue.
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