S.S. v. Commonwealth, Ky COA, Standing as De Facto Custodian

S.S. v. Commonwealth, 2011-CA-001790-ME

Published:   Affirming  

County:  Jefferson

Child, through GAL, appealed FC ruling
that her Great-Grandmother had standing to intervene in suit as de facto
custodian, arguing that she did not meet the requirements for de facto custodian
status under KRS 403.270.


At age 2, Child was removed from
Mother and placed in temporary custody of Great-Grandmother pursuant to
dependency petition.  Two years and five
months later, Child was returned to Mother’s care; but eight months after that,
Child was removed from Mother’s care again and placed in concurrent planning
foster home.  Great-Grandmother filed
motion to intervene in order to be considered for Child’s placement or to have
visitation with Child.  After hearing, FC
granted Great-Grandmother de facto custodian status and granted her
visitation.  GAL filed motion to
reconsider, arguing that Great-Grandmother had relied upon an unpublished case
to establish that the lapse in time of her care of Child did not disqualify her
as de facto custodian and further arguing that Great-Grandmother could not rely
on her husband’s salary as her own income for purposes of meeting the
statute.  FC disagreed on both fronts and
denied the motion to reconsider.  On
appeal, Child through GAL argues that Great-Grandmother cannot qualify as de
facto custodian because she is not Child’s primary financial supporter; Child
also argues that termination proceedings are scheduled and the standing order
of visitation will inhibit Child’s potential for adoption.


There is no authority holding that a
de facto custodian cannot be credited with financial support which is provided
by the government through government benefits, such as Great-Grandmother’s
receipt of social security and social security insurance, or from their
spouse’s income, merely because such monies were not earned directly through
employment.  Such a result would
disqualify stay-at-home spouses, retirees, elderly social security recipients,
and poor and disabled recipients of government benefits.  CA held this was not the intent of the
legislature.  CA acknowledged and
sympathized with the fact that Great-Grandmother’s visitation order, which
would continue on past an adoption, might inhibit Child’s prospects for
adoption; but without a legal precedent warranting reversal, it has no bearing
on Great-Grandmother’s status as de facto custodian. 

Digested by Michelle Eisenmenger
, Diana L. Skaggs + Associates