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

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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  GAL filed motion to reconsider, arguing that Great-Grandmother had relied upon an unpublished case to establish that the lapse in time of her care of Child did not disqualify her as de facto custodian and further arguing that Great-Grandmother could not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 Mapes, Diana L. Skaggs + Associates  

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