Allen v. Devine, 178 SW3d 517 (Ky.App., 2005)

Allen v. Devine, 178 SW3d 517 (Ky.App., 2005)
Once a finding is made that persons are de facto custodians,
they then are on equal footing and court must then determine
best interest. Blood relationship is but one of many factors for
the trial court to consider.

Krystal is the mother of three minor children, Austin, Shayann, and Ayla. Burt is the father of Austin; Kevin is the father of Shayann; Jason is the father of Ayla. Ayla has resided since birth with Krystal's mother, Darlene Kisselbaugh, and this child is not involved in this action. Krystal married and divorced Jason; she then lived with Burt from 1997 until 2000, when Burt disappeared; she then lived with Kevin during the pendency of this action. Danny Devine is Krystal's father.

In 1996 Krystal was diagnosed with bipolar disorder, but she failed to take medication for this condition. She and Kevin have a history of alcohol and drug abuse.

Shortly after Austin's birth in 2000, Krystal and Burt rented a home in Logan County, Kentucky from Ed and Judy Allen. In February 2002, Mr. and Mrs. Allen began keeping Austin and Shayann in their home on a regular basis, as Krystal and Burt could not financially provide for the children. Austin was then 20 months old, and Shayann was two months old. Krystal visited the children once or twice a month, and Kevin visited the children once every other week. Mr. and Mrs. Allen, who are not related to anyone involved in this action, provided essentially all of the children's needs, with some small contributions from Krystal and Kevin and from Danny Devine.

In June 2002 Jackie Sanders, Kevin's mother (paternal grandmother to Shayann), filed a petition for grandparent visitation. Krystal told Jackie the children were residing with Krystal's cousin Judy (who undisputedly is of no blood relation to Krystal).

Between February and September 2002 the Devines visited the two children once or twice monthly, later moving to have a more consistent visitation schedule including overnight. They claimed they did not know the children were residing full-time with Mr. and Mrs. Allen as Krystal hid this from them.

In March 2003 Krystal met with her father and stepmother, Danny and Lisa Devine, and Krystal agreed the Devines should seek custody of the two children, and on May 1, 2003 they filed a petition for custody.

The trial court found that Mr. and Mrs. Allen were the de facto custodians of Austin and Shayann, but held that "as Mr. and Mrs. Allen are not related to the children, it would be in the children's best interest for the Devines to have custody."

Mr. and Mrs. Allen appealed to the Kentucky Court of Appeals, who upholds the finding that the Devines are the de facto custodians of the children, and reverses as to the award of custody to the Devines. The finding of de facto status puts the Allens on equal footing with anyone - parent, grandparent, etc. desiring custody and the trial court must consider more than just blood relationship. The trial court must give equal consideration as required by KRS 403.270(2) in determining "best interest." Blood relationship is but one of many factors for the trial court to consider.