Mother did not waive superior custodial rights - published opinion from Ky Court of Appeals

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Kruger v. Hamm

Trial Court granted joint custody of Daughter to Mother and a Couple that lived next door to Mother. When Daughter was born, Mother and Daughter moved in with the Couple for a very brief period of time. Mother eventually obtained an apartment, but visited the Couple’s house every other day. The couple helped Mother care for daughter and Mother considered the Couple to be babysitters.

An attorney hired by the Couple filed a petition for joint custody naming Mother and the Couple as joint petitioners and Father as the respondent. The petition did not explain why the Couple had standing to claim custody. The Court entered a temporary order awarding joint custody to Mother and the Couple. Once granted joint custody of Daughter, the Couple began exercising increased control over Daughter.

Mother filed a pro se “Motion for Review of Child Custody.” In response, the Couple filed a motion to enter a permanent custody order. Mother subsequently obtained counsel and filed response to the Couple’s motion, which stated that the Couple did not have standing to seek custody, that the Couple did not qualify as de facto custodians, and that Mother did not waive her superior right to custody. The Trial Court again ordered Mother and the Couple to have joint custody of Daughter.

The Court of Appeals held that Mother did not waive her right to contest the Couple’s standing. Neither the joint petition nor any of the subsequent motions filed by the Couple stated the grounds on which the Couple had to seek custody and Mother voiced her objection to the Couple’s standing in her pro se motion.

The Court of Appeals also found that the Couple did not qualify as de facto custodians. Although the couple was providing care and financial support for Daughter, Mother also provided care and financial support for Daughter. While the Couple had standing to seek custody under the UCCJEA, they did not qualify as de facto custodians.

Finally, the Court held that Mother did not waive her superior right to custody of Daughter. The Court of Appeals interpreted Mullins v Picklesimer, 317 S.W.3d 569 (Ky. 2010) as recognizing that a waiver of superior custodial rights outside the context of adoptions to be limited to “nonparents who participated with the biological parent in a plan and agreement to: conceive (albeit artificially), bring into the world, and raise a child together.”

The Court of appeals vacated the judgment of the Trial Court with instructions to award custody of Daughter to Mother.

Digested by: Emily T. Cecconi