Waiver of Superior Right to Child Custody, Johnson v. Overbee digest, Ky Court of Appeals

Johnson v. Overbee, 2011-CA-002097-ME

Published:   Affirming   

County:  Lee

Biological parents appealed FC’s
ruling denying their petition for custody of Child.      


Child of Biological Mother and Father
tested positive at birth for multiple illicit drugs, and Cabinet filed and was
granted a petition for emergency custody. 
After one and a half month removal, Biological Parents regained custody
of Child.  Four months later, Biological
Mother shot Child in abdomen while attempting to shoot Biological
father—Biological Father had held Child in front of his body as a shield and
Biological Mother shot anyway.  Cabinet
was again granted emergency custody, but this time placed Child with Biological
Mother’s Cousin and her husband.  FC
ultimately conducted adjudication hearing and granted permanent custody of
Child to Cousin and her husband. 
Biological Parents were present at the hearing and represented by
counsel, and made no objection to the award of custody, nor did they appeal
that award.  Almost two years later,
Biological Parents filed a petition for custody of Child.  FC issued an Order on that petition almost
four years later, in which it determined that Biological Parents had waived
their superior right to custody of Child, and that it was in Child’s best
interests to remain in custody of Cousin and Husband.  Biological parents filed this appeal.      


CA noted that while biological parents
have a superior right to custody of their children, a third party may acquire
standing to obtain custody of a child if the biological parent is unfit or if
the biological parent waived his or her superior right to custody.  For the waiver to be effective, the
biological parent must have intended to voluntarily and indefinitely relinquish
custody of the child.  CA found that
Biological Parents did just that at the adjudication hearing, and their failure
to file an appeal further evidenced that intent, demonstrating by clear and
convincing evidence that Biological Parents waived their superior right to
custody of Child.  CA noted that there
also appeared to be substantial evidence of Biological Parents’ unfitness, but
such a finding was rendered moot by the finding regarding waiver.


Digested by Michelle Eisenmenger
, Diana L. Skaggs + Associates