Allegations and Findings in Related Family Court Matters Are Not Judicially Noticeable and a Child’s Receipt of a Public Benefit Through a Parent’s Eligibility Does Not Preclude a Putative De Facto Custodian from Qualifying as a Primary Financial Support – Published Option from Ky. Court of Appeals

Pink Piggy Bank

Lage, et al. v. Esterle


Mother entered a maternity home to give birth, bringing along her two-year-old Twins. A Volunteer at the maternity home and her Husband agreed to care for the Twins while Mother gave birth and recovered. The parties agreed the Twins would stay with Volunteer and Husband for four months, which later became five months. Seven months after their agreement, Mother left the maternity home, but the Twins stayed with Volunteer and Husband, who later petitioned for adoption and moved for emergency custody of the Twins, the latter of which led to Volunteer and Husband being granted temporary custody of the Twins until a temporary removal hearing could be held. After the temporary removal hearing, the Twins were returned to Mother after having been in the physical custody of Volunteer and Husband for nearly two years.


Volunteer and Husband then moved for de facto status and petitioned for custody of the Twins. Volunteer and Husband, with counsel, appeared at a hearing on the issue, but Mother did not. Volunteer, Husband, and several other witnesses testified at the hearing. In its findings of fact, Family Court took judicial notice of Mother’s testimony from the hearing on the motion for emergency custody. The testimony of Mother and Volunteer differed on the amount of support Mother was contributing to Volunteer and Husband for caring for the Twins. Testimony from both Mother and Volunteer was that the Twins had been consistently covered by Passport for their health insurance, which was provided through Mother’s eligibility. Family Court found that Mother and Husband were not the primary financial supports of the Twins, because Mother had remained a consistent and large financial supporter of the Twins. Family Court then denied the motion for de facto status. A motion to alter, amend, or vacate was later also denied. Volunteer and Husband appealed.


First, Volunteer and Husband argued that Family Court erred by taking judicial notice of Mother’s testimony at the hearing on the motion for emergency custody. The Court of Appeals held that Family Court erred by taking judicial notice of Mother’s testimony, because the testimony did not pass the indisputability test of KRE 201. It reasoned that evidence, unless stipulated or reduced to a finding of fact by the family court currently hearing the issue, is subject to dispute, despite the “one judge-one family” policy. Thus, such evidence does not meet the test of KRE 201 that “[a] judicially noticed fact must be one not subject to reasonable dispute . . . .”


Next, Volunteer and Husband argued that Family Court erred by determining they were not the primary financial supporters of the Twins, specifically, because Family Court found that Mother paid for the Twins’ health insurance. The Court of Appeals held that Family Court so erred, because de facto status does not require a putative de facto custodian to be the sole financial support of a child, and benefits provided to a child through public benefits do not preclude putative de facto custodians from having that status. It reasoned that unless the health benefits were the sole benefit provided to the Twins, the benefit itself would not make Mother the primary financial supporter, assuming contributions by Volunteer and Husband.


Digested by Nathan R. Hardymon



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