Ball v. Tatum, Ky COA, De Facto Custodians

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Ball v. Tatum

No. 2011-CA-001716-ME

Published: Opinion Affirming

County: Daviess

Jessica Ball appeals from an Order entered by the Daviess Circuit Court designating her adoptive parents, Henrietta and Fred Tatum, de facto custodian of E.N.K., her special needs daughter.  The court awarded Ball and the Tatums joint custody of the four-year-old child who was born premature and suffers from cerebral palsy, epileptic seizures, and asthma, and is unable to walk or talk.  Bell maintains the Tatums did not qualify as de facto custodians because they had not been the child’s exclusive caregivers and financial supporters for one year as required by KRS 403.270.

Ball is the adopted adult daughter of the Tatums, who are also her biological grandparents.  There is no allegation that Ball is an unfit mother or that she waived her superior right to custody of her daughter.

 In November, 2010, E.N.K. had a seizure while with Ball and the Tatums feared it was caused by Ball’s failure to administer E.N.K.’s medication as prescribed.  They petitioned the court to name them de facto custodians of E.N.K. and place the child in their care.  After a hearing on the motion for temporary custody, the court granted the motion, reserving the issue of whether the Tatums qualified as de facto custodians.

Hearings by the court and the commissioner showed instability in Ball’s life.  She has lived in ten locations since E.N.K. was born, she has two children by different fathers and currently expecting a third child by another man.  She does not work regularly, yells and curses at E.N.K., and smokes in the child’s presence aggravating the child’s condition.  She misses many of the three weekly physical therapy appointments essential to the child’s progress because of late nights and drinking.  She squandered $6000 in back social security benefits paid to the child, and did not share any of the $570 monthly benefits with the Tatums.

The Tatums are retired, have been married 46 years, have been residents of Kentucky since 1982 and lived in their current home for eleven years.  The Tatums provided Ball with a vehicle and rent-free living space for Ball and her children and according to Fred were their granddaughter’s primary caregivers and financial supporters from E.K.N’s birth in 2006 until summer of 2010.

The commissioner determined that the Tatums qualified as de facto custodian and recommended naming them as E.N.K.’s primary residential custodians, allowing Ball to have parenting time.  At a hearing on Ball’s exceptions to the commissioner’s report, the court ruled from the bench that it was adopting the commissioner’s recommendation in full, denying Ball’s exceptions, and finding that Ball had failed to provide for E.N.K.’s essential needs for reasons other than poverty.  The court did not find Ball unfit, but rather that she was not suitable to care for the child at the present time.  The Tatums were ordered to pay one-half E.N.K.’s social security benefits to Ball, which was amended after the social security office advised that sharing benefits with Ball could jeopardize future payments.

This appeal challenged whether the Tatums qualified as de facto custodians and if so whether it was in the child’s best interest to be placed in their joint custody with Ball.

The Court of Appeals stated that the statute does not require a de facto custodian to prove he is the child’s sole or exclusive provider, but rather he must prove he is the child’s primary caregiver and primary financial supporter.  After reviewing the evidence, the Court of Appeals concluded that the Tatums designation as de facto custodians was not clear error and would not be disturbed.

With respect to the award of joint custody, the Court of Appeals found that the trial court had considered all the relevant factors and found no clear error or abuse of discretion in the decision to award joint custody to Ball and the Tatums.

For these reasons, the amended order of the Daviess Circuit Court entered on August 11, 2001 is affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.


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