Wethington v. Coffey, 2011-CA-000555-ME
Published: Vacating and Remanding
Father appealed FC’s order awarding
joint custody of his children along with the children’s deceased mother’s
nephew and wife, contending that deceased mother’s nephew and wife did not have
standing to pursue custody.
Father and Mother shared joint custody
of twins after divorce, with Mother providing twins’ primary residence and
Father receiving standard visitation schedule.
Three years’ later, Father’s visitation was suspended following a social
services investigation alleging he had abused his minor daughter (the twins’
half-sister). Father later received
visitation once again, but for minimal periods of time. However, he consistently failed to exercise
the time he was given and had very little involvement in the twins’ lives over
the next six years while Mother was still alive. Meanwhile, Mother’s nephew, his wife and
their children, who were approximately the same age as the twins, spent
substantial amounts of time with them during the same time period.
The day that Mother died, Nephew and
Wife filed petition for emergency custody, indicating in the Petition that
Father’s whereabouts were not known. FC
granted them emergency custody and two days later, they were granted temporary
custody after a temporary removal hearing.
They filed for permanent custody a few weeks later. After another temporary custody hearing a few
months later, the parties agreed that Father would have visitation with
children 4 days a week for the next 2 months.
Father again neglected to exercise his visitation. FC drastically limited visitation again but
Father still did not exercise all time that was allotted to him. After final hearing, FC found Nephew and Wife
had standing pursuant to KRS 403.822(1)(b)1 and KRS 403.800(13); that Father
should not have custody because he had inflicted emotional harm on the twins,
exhibited moral delinquency, and had abandoned the twins; and that Nephew and
Wife should share joint custody with Father but Nephew and Wife would provide
primary residence for twins with Father receiving the same drastically limited
visitation. Father appealed.
CA agreed with Father that Nephew and
Wife did not have standing to pursue custody action. While CA agreed that KRS 403.822 was
appropriately relied upon by FC in its analysis of standing in this case, FC
misinterpreted and misapplied KRS 403.800(13), which defines “a person acting
as a parent” who might have standing under KRS 403.822. Such a person must have legal custody or
claim a right to legal custody AND have or have had physical custody of the
child for six months of the year preceding the custody action. Here, Nephew and Wife had custody for less
than a month prior to filing their petition.
CA disagreed with Nephew and Wife’s interpretation that the six month
limitation should only be imposed on parties who no longer have physical
custody, and thus did not apply to them as the custodians at the time of
filing. CA, on a matter of first
impression, found that the six month requirement applies to any party seeking
custody, regardless of the current physical custody status. Thus, Nephew and Wife did not have standing
to pursue custody of twins.
Vacated and Remanded.