Kidd V. Combs, Ky Ct of Appeals, De Facto Custodian and Child Custody

Aaron K. Kidd v. James Combs

No. 2009-CA-002260-ME and 2009-CA-002299-ME

Published: Opinion Affirming

County: Perry

Aaron Kidd appealed from the Perry Circuit Court ruling related to the custody of his daughter, Jaiden.  The Court awarded joint custody to Kidd and Jaiden’s maternal great-grandparents, James and Irene Combs, designated the Combses as the primary residential custodians and ordered visitation for Kidd and Jaiden’s mother, Shannon Combs.  Kidd contests the Court’s designation of the Combses as de facto custodians and the custody ruling.

Aaron Kidd and Shannon Combs, Jaiden’s parents, never married, but began living together in Lexington in October 2001.  Jaiden was born in July, 2002.  In February, 2003, Aaron sustained a gunshot wound to the face in the line of duty as a police officer, in a confrontation in which Aaron shot and killed his attacker.  The ensuing controversy and safety concerns led Shannon to ask her grandparents (who had raised her) to take Jaiden to Hazard until Aaron recovered and the investigations were complete.  When Aaron returned to work as a police officer, Shannon was working and attending college, so they decided to leave Jaiden with the Combses until Shannon completed her education.   The parents visited the child in Hazard and the child visited them in Lexington.  When Aaron and Shannon broke up in 2006, a paternity test established that Aaron was Jaiden’s father.

Jaiden lived with the Combses from 2003 until 2007.  In 2006 it was determined that Jaiden needed dental care but Shannon was afraid to allow the required general anesthesia to be administered.  In 2007, Aaron took Jaiden to his own dentist, who performed the necessary extractions and fillings.

In July, 2007 Shannon filed a petition against Aaron for custody and child support and he filed a counterclaim seeking custody of Jaiden.  After a temporary custody hearing on August 3, 2007, the Court found the Combses to be de facto custodians and granted them temporary custody.  The Combses moved to intervene and for de facto custody.  The motion to intervene was granted, the petition was filed and a guardian ad litem was appointed for Jaiden.

A Domestic Relations Commissioner conducted a hearing in February, 2009.  The GAL recommended joint custody to the Combses and Aaron, and the DRC recommended sole custody to the Combses, with visitation to Aaron and Shannon.  The Court awarded joint custody to the Combses and Aaron with reasonable visitation for Shannon.  Aaron appealed the custody ruling and the Combses cross-appealed from the joint custody award, seeking sole custody of Jaiden.

During the pendency of the Appeal, Irene Combs died.  Aaron moved to remand this case to circuit court for consideration of his motion to modify custody because of the change in circumstances.  After an evidentiary hearing, James and Aaron were awarded joint custody, James continuing as primary residential custodian and visitation as previously ordered for Shannon and Aaron.  The case returned to the Court of Appeals to determine if the Combses were properly named as de facto custodians and joined as parties after the temporary custody hearing.

The Court of Appeals held that the circuit court had statutory authority to join the Combses as parties to the custody action and allow them to intervene and petition for custody once it found they met the requirements to be de facto custodians.  To determine if the Combses were properly named de facto custodians, the Court of Appeals explained that the meet this status, a person must have been the child’s primary caregiver and the primary financial supporter of the child.

The Court found that the Combses had been primary caregivers and financial supporters of Jaiden and provided her only real home in her first five years.  Aaron argued that a six-week period when he took Jaiden to his home broke the period of time required to qualify as a de facto custodian.  This was rejected by the Court because the Combses never agreed that Aaron was taking the child for more than a week’s visit.

The Court of Appeals held that the Circuit Court did not abuse its discretion in designating the Combses as de facto custodians and affirmed the 2009 custody award.

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