J.G. v. J.C., Ky COA, Defacto Custodian

J.G. v. J. C. , _ S.W.3d _ (Ky. App. 2009), 2008-CA-1023

Parents appeal the judgment holding that the grandparents are the de facto custodians of S.G. The parents have three other children, all of whom had been previously removed. Due to previous issues, social services placed S.G. with the grandparents three days after she was born. A couple of weeks later the parents filed a motion to terminate the temporary custody order and have S.G. returned to their care. The trial court denied the motion. The parents then participated with social services to try to regain custody of S.G. After about eleven months, the grandparents filed a petition for declaration of de facto custodian and permanent custody. After numerous hearings, the DRC recommended that the grandparents be deemed the de facto custodians of the child and be awarded permanent custody. The trial court adopted the DRC recommendations. The parents filed exceptions to the findings, a motion to alter the court’s decision, and a motion for further findings of fact. The trial court denied the motions and this appeal followed.

COA found that the grandparents did not meet the statutory requirements for being declared the child’s de facto custodians. COA reversed and remanded, ordering the trial court to make further findings of fact. First, the trial court must determine whether the grandparents met the one year time requirement pursuant to KRS 403.270, especially in light of the tolling requirement of KRS 403.270(1)(a). The time between when the parents filed their motion to terminate the temporary custody order and when the court ruled on that motion does not count toward the de facto custodian time requirement. Next, the trial court must make the findings requested by the parents in a previous motion. Finally, the COA noted that a married couple is considered a single unit for the purpose of de facto custodianship, and therefore a couple may be deemed de facto custodians as opposed to a single individual.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates