McCary v. Mitchell, Ky COA, Guardianship Custody Between Non-parents

McCary et al. v. Mitchell, et al. –S.W.3d—(Ky.App. 2008), 2007 CA-000322-DG

The Mitchells, maternal aunt and uncle of B.E.M., petitioned the court to be appointed guardians and conservators of the estate of their niece. B.E.M.’s mother was murdered by the child’s father, and the child was currently living with her paternal aunt and uncle, the McCarys. The district court ordered that the Mitchells be appointed the co-guardians and co-conservators of the estate of the child, and that the Mitchells take physical possession of the child after the completion of the 2005-06 school year. The Circuit Court affirmed. The Court of Appeals granted discretionary review.
The Court first found that the KRS 403.270 de facto custodian provision does not apply to guardianship proceedings under KRS 387.032. Therefore, the McCarys did not have a superior right to the child. Both parties were to be given equal consideration. The Court then found that the district court did not abuse its discretion in finding that the child’s best interest was served by appointing the Mitchells as guardians. There was sufficient evidence to support the court’s finding.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates