Heltsey v. Frogge, Ky COA, De Facto Custodian and Attorney Fee Awards

Heltsey v. Frogge

2009-CA-001867-ME AND NO. 2010-CA-000049

Issues:  Published:  Affirming

County: Warren


KRS 403.270(1)(a) provides that, in calculating the minimum period of time during which a person must be the sole primary caregiver and financial supporter of a child in order to qualify for de facto custodian status, the requisite period of time shall not include any period of time after a legal proceeding has been commenced by a parent.  CA held in this case that this “tolling period” does not require the parent to file a new and separate lawsuit; and that, in this case, numerous pleadings were independently sufficient to trigger the tolling provision, including Father’s pro se motion for custody, Mother’s Petition for Dissolution of Marriage demanding custody, Father’s response to the petition demanding custody, and Father’s response to Grandparents’ Intervening Petition.  Thus, Grandparents were not primary caregivers for the statutory period and they could not have standing as de facto custodians.


FC did not err in ordering Grandparents to pay $2,500 of Father’s $36,000 attorney’s fees; FC was not required to find that Grandparents employed delay tactics; FC need only consider the financial resources of the parties and Grandparents had maintained throughout the action that Father was unable to financially support Child while they were capable of doing so. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates