D. (D.) VS. S. (A.), ET AL.
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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NOT TO BE PUBLISHED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-001129-ME
D.D.
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE D. MICHAEL FOELLGER, JUDGE
ACTION NO. 07-CI-00843
A.S.; W.P.K.; J.D.;
AND A.D.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, NICKELL, AND VANMETER, JUDGES.
VANMETER, JUDGE: Appellant D.D. appeals from an order entered by the
Campbell Circuit Court, Family Division, finding that he is not the de facto
custodian of his two granddaughters. We affirm.
Appellant is the father of A.S., who was a teenager when she gave
birth to J.D. in 1998. A second daughter, A.D., was born to A.S. in 2003. The
father of the older child allegedly has paid some child support but otherwise has
not been involved in her life, while the father of the younger child is unknown.
The grandchildren resided with appellant in Chicago and Indiana until
August 2006, and appellant claimed them as dependents for income tax purposes.
A.S. resided with appellant and the children during much of this time, although at
times she resided elsewhere for school and employment reasons. A.S. became
employed as an over-the-road truck driver in July 2004, resulting in her absences
from home for several weeks at a time. Appellant supported and cared for the
children during A.S.’s absences, and he continued to claim them as dependents. In
August 2006, against appellant’s wishes, A.S. removed the children from his care
and took them to Newport, Kentucky, where they now reside with A.S. and her
husband. Appellant has provided no support or care for the children since their
removal. In June 2007, appellant filed a petition alleging that he was the children’s
de facto custodian and seeking custody of them.
The trial court conducted a hearing regarding the issue of whether
appellant was the children’s de facto custodian. Based on clear and convincing
evidence, the court found that appellant satisfied the criteria set out in KRS1
403.270(1) by providing the children with excellent care and support and acting as
their de facto custodian until August 2006. However, based on the lapse of ten
months between A.S.’s removal of the children and the filing of appellant’s
petition, the court concluded that appellant was not the children’s de facto
1
Kentucky Revised Statutes.
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custodian for purposes of the underlying custody proceeding. Further, the court
denied appellant’s motion to alter, amend or vacate its decision. This appeal
followed.
KRS 405.020(3) provides that notwithstanding the parental custody
provisions set out in KRS 405.020(1) and (2),
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 provides:
(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
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the same standing in custody matters that is given to
each parent under this section and KRS . . . 405.020.
In Sullivan v. Tucker, 29 S.W.3d 805 (Ky.App. 2000), a panel of this
court addressed a situation in which two grandchildren were in their paternal
grandmother’s court-ordered temporary custody for some ten months. After the
grandmother petitioned the court for permanent custody, the temporary custody
order was rescinded and the children were returned to their parents. The
grandmother and her longtime companion thereafter petitioned to be named as the
children’s de facto custodians. The circuit court rejected the petition, finding that
de facto custodianship requires actual possession of the child, and that such status
lapsed with the children’s return to the parents. On appeal, this court held that the
language of the statute
suggests that the determination of de facto custodianship
is a matter that must be addressed anew whenever the
status is asserted. This is not to say that a prior finding of
de facto custodianship has no bearing on a subsequent
determination. Nor is it to say, as the trial court opined,
that possession of the child is a necessary prerequisite to
recognition of de facto custodian status. It is only to say
that a finding of de facto custodianship does not
thereafter have the exclusively presumptive effect
[appellants] assert.
29 S.W.3d at 808. This court affirmed the trial court’s refusal to find that the
petitioners were the children’s de facto custodians.
Subsequently, in Sherfey v. Sherfey, 74 S.W.3d 777 (Ky.App. 2002),
overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky.
2008), a panel of this court addressed a situation in which a teen resided with his
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paternal grandparents for some two years before the teen’s father filed a motion
which eventually led to the court’s examination of the custody situation. The stay
with the grandparents was interrupted only by a one-month stay at a camp, which
the parents forced the unwilling teen to attend by having him forcibly removed and
transported to the camp by a firm “specializing in the transportation of ‘difficult’
children.” 74 S.W.3d at 779. This court declined to find that the camp visit
“disqualif[ied] the grandparents from achieving ‘de facto custodian’ status[,]”
noting:
From the record, it is clear that T.S. [the teen] spent
roughly two years under the care and custody of his
grandparents prior to the filing of the current action. The
nonconsensual transporting of T.S. to Florida was
adjudged by the courts of Kentucky to be an act of
domestic violence – not an abandonment of support by
the grandparents. Further, T.S. never fully left the
custody and control of his grandparents. He merely spent
an unhappy month at a camp where he continued to
maintain contact with his grandparents. Obviously, every
parent who sends his or her child to a summer camp has
not surrendered custody of the child.
Id. at 780 (footnote omitted). Moreover, the court clarified that “the plain
language of” the final sentence of KRS 403.270(1)(a), relating to the tolling of
“[a]ny period of time after a legal proceeding has been commenced by a parent
seeking to regain custody of the child[,]” clearly and specifically requires both
“that the action be ‘commenced’ by the parent – not merely defended[,]” and that
the court appearance “be an action in which the parents seek to ‘regain custody.’”
Id. at 781.
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Here, although the parties provided conflicting evidence regarding
their respective roles in caring for and supporting the children prior to August
2006, they do not dispute that appellant has not been involved in the children’s
care since that date. Further, we do not disagree with the trial court’s
determination that “clear and convincing evidence” established that until August
2006, appellant was the children’s primary caregiver and financial supporter, and
that he met “the criteria as set forth in KRS 403.270(1)” to be the children’s de
facto custodian. Nevertheless, as noted in Sullivan, “the determination of de facto
custodianship is a matter that must be addressed anew whenever the status is
asserted.” 29 S.W.3d at 808. Thus, regardless of whether appellant was the
children’s de facto custodian prior to August 2006, the court’s determination below
was necessarily based on the circumstances which existed when appellant filed his
petition ten months later.
The undisputed evidence shows that appellant never had legal custody
or guardianship of the children, and he provided no care or support of them during
the ten months preceding the filing of his petition. Indeed, appellant had been
prevented from having any contact with the children during that period, and
nothing in the record reflected any expectation that contact would resume. Thus,
unlike the situation in Sherfey, the children’s nonconsensual removal from
appellant’s care amounted to a permanent interruption of his provision of care and
support, rather than only a month-long interruption during summer camp
attendance. Moreover, the tolling provisions of KRS 403.270(1)(a) do not compel
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us to consider only the passage of time between August 2006 and the filing of the
petition below, as this action was commenced by a nonparent who sought to be
named the de facto custodian, rather than by a parent who sought to regain custody
from a de facto custodian. Sherfey, 74 S.W.3d at 781. We conclude, therefore,
that the trial court did not err by finding that appellant was not the children’s de
facto custodian for purposes of this proceeding. Further, absent a determination
that appellant was the children’s de facto custodian, the issues raised below
regarding the children’s best interests and custodial placement were rendered moot.
See KRS 405.020(3).
The order of the Campbell Circuit Court, Family Division, is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR A.S.:
Ryan M. Beck
Florence, Kentucky
Bradley G. Braun
Covington, Kentucky
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