T.C. and J.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; the Hardin County Attorney’s Office; W.P.; L.P.; and L.C., a Minor Child, No. 2021-CA-0445-ME; and 

T.C. and J.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; the Hardin County Attorney’s Office; D.P.; T.P.; and R.C., a Minor Child, No. 2021-CA-0446-ME

Hardin Family Court

The Cabinet for Health and Family Services was granted emergency and temporary custody of the children following 2017 dependency, neglect, or abuse (“DNA”) cases based on reports of domestic violence and drug use of the parents.  The Cabinet placed the children with foster parents, noting the children would “be committed or remain committed” to the Cabinet.  Mother and father were to adhere to instructions from the Cabinet, such as mental health and drug and alcohol assessments, and remaining drug free.  Mother and father did not make substantial progress on their case plans in 2017; nevertheless, the permanency goal was maintained as the children returning to their parents.  

Thereafter in 2018, mother and father made significant progress on their case plans, and in 2019, the goal was still that the children return to their parents.  This goal continued into 2020 until W.P. and L.P. (foster parents) filed a custody case for two of the minor children, namely K.C. and L.C.  The family court awarded temporary custody to the foster parents over the parents’ and the Cabinet’s objections.  D.P. and T.P. (foster parents) filed a similar case for the remaining child, R.C., in 2021.  Temporary custody was awarded to the foster parents in that case as well.  

In its written findings, the family court emphasized that it lost faith in the Cabinet to determine the best interest of the children at issue, and as a result, that the Cabinet should not have the exclusive right to determine placement of the minor children.  Mother and father argued on appeal that (1) the foster parents did not have standing to petition for custody; (2) the family court infringed on the Cabinet’s executive powers; and (3) the family court improperly allowed the foster parents to access the parents’ mental health evaluations that resulted in a Health Insurance Portability and Accountability Act of 1996 (HIPAA) violation.

The Court noted first and foremost, the foster parents did not have standing to petition for custody because they did not qualify as de facto custodians, and there had not been a determination that the parents were unfit. The parents also had not waived their right to custody of the children.  The family court also failed to apply relevant factors in Kentucky statutes to assist in making a custody and best interest of the child determination, which includes consideration of the parents’ and children’s wishes.

Second, by ordering the DNA cases closed following the temporary custody determinations, the family court overstepped on the Cabinet’s executive power, resulting in the family court exceeding its authority.  Third and finally, the Court did not agree with the parents’ argument that the family court infringed on their HIPAA rights by allowing the foster parents access to their mental health evaluations due to the disclosure coming from the court rather than a covered entity.

As a result, the Court found the family court abused its discretion in awarding temporary custody to the foster parents because it lacked statutory authority to do so, it failed to consider relevant factors in the statute pertaining to custody determinations and additional factors relating to the best interest of the children, and it improperly deciding the foster parents had standing to petition for custody.  Further, the Court held that the family court exceeded its authority in ordering the DNA cases be closed and future filings be addressed in the custody cases only.  The Court reversed and remanded to the family court with instructions. 

Caitlin P. Kidd, Esq.

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Hardin Circuit Court

Grandmother moved to intervene in custody action between Mother and Father, requesting to be considered Child’s de facto custodian and be awarded custody of child. At the hearing on the matter, Grandmother introduced evidence that she provided the majority of care and support of Child with her in Kentucky. However, the evidence showed that Mother sought medical or dental care for Child when needed when Child stayed with her in West Virginia, although she admitted to not having been involved in Child’s medical or dental care in Kentucky. Furthermore, Mother testified that she provided support to Grandmother for the child, although she did not do so through the child support office. Family Court found Grandmother to be a de facto custodian and granted Grandmother and Mother joint custody of Child. Mother appealed.

The Court of appeals held that Grandmother was not Child’s de facto custodian. Parenting a child alongside a parent does not meet the definition of de facto custodian. Mother continued to exercise her parenting time, make decisions for Child during her parenting time, and provided for Child. Grandmother parented alongside Mother, and although Grandmother did generously provide care and financial support to Child, Mother did not allow Grandmother to stand in her place as Child’s mother nor did she abdicate her role as primary caregiver and financial supporter.

Digested by Nathan R. Hardymon

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On remand from the Kentucky Supreme Court, the Court of Appeals was to determine whether Grandfather and long-term Girlfriend were Child’s de facto custodians. In Krieger v. Garvin, 584 S.W.3d 727 (Ky. 2019), the Supreme Court reversed the Court of Appeals by holding that KRS 403.270(1) is broad enough to simultaneously confer upon unmarried cohabitants the status of de facto custodian(s).

In a temporary removal hearing by order dated May 8, 2014, Family Court awarded temporary custody of Child to Grandfather and Girlfriend, with whom Grandfather cohabitated. Mother later stipulated to risk of abuse or neglect, and Family Court ordered temporary custody of Child was to remain with Grandfather and Girlfriend. Later, on November 26, 2014, maternal Grandmother filed an action seeking custody of, or in the alternative, grandparent visitation with Child. Grandfather and Girlfriend responded and filed a cross-petition to be declared de facto custodians of Child. Mother, on December 12, 2014, filed a response to Grandmother’s petition, requesting Grandmother be granted temporary custody of Child. After a hearing, Family Court found Grandfather and Girlfriend to be the primary caregivers and financial supporters of child, named them de facto custodians, and awarded them permanent sole custody by Order dated September 10, 2015.

The Court of Appeals held that Grandfather and Girlfriend failed to show that they are de facto custodians. In order to do so, they were required to prove they were the primary caregivers for, and financial supporters of, Child for a period of six (6) months or more, provided that no legal proceeding had been commence by Mother seeking to regain custody of Child. They failed to make this showing, because Mother filed a motion for custody in the DNA action prior to the satisfaction of the six-month period, on September 25, 2014, which was sufficient to toll the six-month period. Because the order denying Mother’s motion for custody was interlocutory and not final, there had not been a continuous, untolled period of six months in which Child resided with Grandfather and Girlfriend.

Judge Acree concurred by separate opinion, arguing that Krieger v. Garvin, 584 S.W.3d 727 (Ky. 2019), should be overturned. His arguments are five-fold: “(1) its rationale for finding that the legislature’s use in the statute of an expressly singular term also included the plural is diametrically opposed to the rationale applied to the same statute in the same sentence in Meinders [v. Middleton, 572 S.W.3d 52 (Ky. 2019)]; it violates the Supreme Court’s jurisprudence for interpreting statutes; (3) it builds upon an erroneous reference in an unpublished opinion of the Court of Appeals; (4) it ascribes to cohabitation an equivalency to marriage in this context; and . . . (5) granting a nonparent the rights of a parent based on a child’s best interests easily can be shown to constitute undue state interference with the actual parent’s constitutional right to raise her child—a child whose custody she is actively pursuing.”

He argued that the Supreme Court analyzed KRS 403.270(1)(a) in two cases, Krieger and Meinders, where, both cases, the Court determined whether the legislature intended an indefinite article, “a”, and a definite article, “the”,  to include the plural when only listing the singular. In Meinders, the Court held that “a period of six months” only means a single period, and could be reworded as “one single period of six months” and retain its meaning. In Krieger, it resorted to KRS 446.020(1), which allows for singular nouns in a statute to be considered plural. Thus, the Court then read “the primary caregiver” and “the primary financial supporter” as being able to include more than one caregiver or supporter. These rationales are in opposition.

Next, Judge Acree argued that it was error for the Court to rely on KRS 446.020(1), because “[d]oing so skipped over . . . the more basic, legislatively enacted, prerequisite rule statutory construction . . . ” that words of a statute shall be construed according to their common and approved usage. Furthermore, the Court has held that “courts have a duty to accord statutory language its literal meaning unless to do so would lead to an absurd or wholly unreasonable result.” Thus, Judge Acree argued, there must be a finding that applying the literally word of a statute would be absurd before resorting to KRS 446.0220(1). There was no absurdity, he argued, in applying the statute as written.

Judge Acree then argued that the Court erroneously relied upon an unpublished Court of Appeals decision, where it had found that that a cohabitating relationship provided the sufficient context to justify deviation from the express language of the statute when KRS 403.270(1)(a) states, “unless the context requires otherwise,” because the unpublished Court of Appeals opinion cited cases for principles that cannot be found in those cited cases for the proposition that “a married or cohabitating couple [are] regarded by the trial court as a single entity for purposes of the KRS 403.270 analysis.” However, in the underlying opinions, de facto status was not granted to a cohabitating couple.

Next, Judge Acree argued that Krieger ascribes equivalency to marriage and cohabitation, which erodes the institution of marriage, when cases such as Obergefell exalts it. He argued that the stability of marriage can assuage fears of a child because “[m]arriage . . . affords the permanency and stability important to children’s best interests.”

Finally, Judge Acree argued that applying KRS 403.270 under through the lens of Krieger would make the statute unconstitutional, because the Court required the best interests analysis to determine “unless the context requires otherwise.” He argued that this is the same type of statute that was struck down by the United States Supreme Court in Troxel, because a trial court would offer standing based upon the best interests analysis and place a nonparent on equal footing with a parent. He furthermore made a connection to the waiver of superior rights doctrine, where the best interest analysis cannot be applied until after a parent has been shown to have waived his or her superior rights to custody.

Digested by Nathan R. Hardymon

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On February 11, 2017, Mother left her nine-month-old Child with Elliott to babysit for the weekend and until Mother went to scheduled court appearances. For quite some time, Mother did not reappear, and Child became sick. Elliott did not have the legal authority to take Child to the doctor. The Cabinet for Health and Family Services (“the Cabinet”) became involved and filed a DNA petition. On March 2, 2017, at an adjudication hearing, Circuit Court found Child to be abused or neglected and ordered Child to remain with Elliott. At a disposition hearing on April 20, 2017, Circuit Court concluded that Child was to remain with Elliott.

Eight months after Mother abandoned Child, Elliott filed a petition for custody of Child claiming de facto status. On January 30, 2018, Circuit Court found Elliott to be Child’s de facto custodian and awarded Hoskins, Child’s father, supervised visitation with Child. Hoskins appealed, arguing that (1) Elliott had not met the one-year timeframe for de facto status, and (2) Circuit Court erred by awarding him supervised visitation, as it failed to make proper findings under KRS 403.320(3).

The Court of Appeals held that Circuit Court improperly concluded that Elliott was Child’s de facto custodian, because Mother’s abandonment of Child was not sufficient to transfer legal custody of Child, and KRS 403.270(1)(a) requires a one-year timeframe when the Department of Community Based Services has placed a child. Only eight months had passed since Child was placed with Elliott. Thus, Elliott did not meet the timeframe to have standing for de facto status.

The Court of Appeals also held that Circuit Court erred by awarding Hoskins supervised visitation, because it did not find that Hoskin’s visitation with Child would endanger seriously Child’s physical, mental, moral, or emotional health as required by KRS 403.230(3).

Digested by Nathan R. Hardymon

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Child was born in March of 2005 to Murphy and Hodge, who were unmarried. In 2015, Hodge’s paternity was established, and a child support obligation was set on the same day. Turner, until Hodge’s paternity was established, believed that her son, Jeffrey, was Child’s father, and Child lived with Turner at various times until 2017. In September of 2017, Hodge petitioned for custody of Child, not naming Turner as a respondent. Through a temporary agreed order, Family Court ordered joint custody of and equally shared parenting time with Child for Murphy and Hodge. On June 8, 2018, Turner moved to intervene in the custody action and requested de facto status, claiming to have been Child’s primary caregiver and financial supporter for 13 years. She alleged that Murphy told everyone that Jeffrey was Child’s father, Hodge had only seen the child once or twice before Child was placed with Hodge, Child had lived with her since birth, because Murphy was unstable and had drug issues, her son was incarcerated, and Hodge was also incarcerated. Turner sought temporary and sole custody of Child. Family Court allowed Turner to intervene on September 14, 2018.

At the hearing on Turner’s motions, Turner testified as follows: She believed Jeffrey was Child’s father for 11 years. Child stayed at her home 4 or 5 nights a week. Child lived with her full time when Murphy entered rehab in 2006 for nearly two years, at which time Child stayed with Murphy a couple days per week. Child lived with Turner from Kindergarten through fourth grade and began staying more with Murphy in seventh grade, at which time she stayed with Murphy a couple days a week and with Turner or Turner’s son, Jerry, the rest of the week. This was the status quo until Child was placed with Hodge in May of 2018. Turner was the primary caregiver and financial supporter of Child from 2006 through August of 2017, at which time Turner and Murphy began sharing time. Murphy had given Turner $400.00 three time over twelve years, and nobody else had given her money in support of Child. Turner had Child most of the time during Murphy’s parenting time, and that Hodge would allow Turner to have Child on weekends from time to time on his parenting weeks. Child spent a day at Jerry’s house every once in a while.

Broughton, a friend of Turner’s, testified as follows: Child lived with Turner or Jerry a lot of the time from Child’s birth, and spent time at Broughton’s home as well. Turner and Jerry provided clothing, shoes, and sports equipment for Child. She did not dispute that Child stayed with Murphy a couple days a week. Jerry was not around between 2004 and 2008 while he was in college.

Family Court denied Turner’s motion for de facto status, concluding that Turner lost standing to assert de facto status when Murphy reestablished her care from 2008 through 2015 and because Turner knew that Hodge petitioned for custody in 2017. Turner appealed.

The Court of Appeals affirmed Family Court, holding that Turner’s de facto status was interrupted and was subject to be considered anew. It reasoned that in Sullivan v. Tucker, 29 S.W.3d 850 (Ky. App. 2000), it held that a person who has achieved de facto status in the past is not always entitled to participate in custody matters related to a child, because every time de facto status is asserted, it must be considered anew. It further reasoned that Turner was not Child’s de facto custodian after 2015, because Hodge had been paying child support since at least 2015, Murphy and Hodge began exercising equally shared parenting time in 2017, Turner did not intervene in the custody action until the following June and never sought de facto status before then, Child spent considerable time at both Jerry and Broughton’s homes, in addition to Turner’s, and Jerry and others provided for Child’s financial support, not just Turner. Thus, Turner was not Child’s de facto custodian after 2015, at which time her alleged de facto status was interrupted and was subject to be considered anew.

Digested by Nathan R. Hardymon

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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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In a temporary removal hearing, Family Court awarded temporary custody of eight-month-old Child to her maternal Grandfather and Grandfather’s long-term Girlfriend, with whom Grandfather cohabitated. Mother later stipulated to risk of abuse or neglect, and Family Court ordered temporary custody of Child was to remain with Grandfather and Girlfriend. Later, maternal Grandmother filed an action seeking custody of, or in the alternative, grandparent visitation with Child. Grandfather and Girlfriend responded and filed a cross-petition to be declared de facto custodians of Child. After a hearing, Family Court found Grandfather and Girlfriend to be the primary caregivers and financial supporters of child, named them de facto custodians, and awarded them permanent sole custody. Family Court also awarded Grandmother grandparent visitation. Grandmother appealed.

The Court of Appeals held that Family Court erred in naming more than one individual as Child’s de facto custodian and did not address the other issues before it, finding them moot. The Court of Appeals reversed Family Court’s decision. Grandfather and Girlfriend sought discretionary review from the Supreme Court.

The Supreme Court reversed the Court of Appeals, holding that Family Court did not err when it named more than one person as Child’s de facto custodian. It acknowledged that KRS 403.270 refers to “the primary caregiver” and “the person.” However, in abrogating the marriage requirement for two people to be de facto custodians, the Supreme Court reasoned that (1) the definition of de facto custodian also includes the phrase “unless the context requires otherwise,” leaving room for trial courts to act in the best interest of the child in determining which individual or individuals qualify as the de facto custodian(s); and (2) KRS 446.020(1), regarding statutory construction, provides that “[a] word importing the singular number only may extend and be applied to several persons or things, as well as to one (1) person or thing . . . .” Even though KRS 403.270 refers to “the primary caregiver,” KRS 446.020(1) means it can refer to multiple primary caregivers, because the General Assembly knew of KRS 446.020(1) at the time it enacted KRS 403.270 and used no language indicating de facto custodian status be limited to only one person.

Digested by Nathan R. Hardymon

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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

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Trial court granted temporary custody of minor child to women believed to be the child’s biological paternal grandmother and aunt.

Four days after the dependency, abuse, and neglect hearing, which biological mother failed to attend, biological mother requested a paternity test for a man she believed to be the child’s true biological father. DNA results confirmed the man tested was the child’s biological father and that the women believed to be the child’s true paternal grandmother and Aunt were not biologically related to the child.

In April 2016, the true biological father moved to transfer custody and the trial court ordered that the biological father would begin with visitation with minor child and work toward receiving custody consistent with the child’s best Interest.

In September 2016, the biological father filed a separate civil action for custody. At a final hearing, the trial court found that the child had resided with its “paternal grandmother” for more than the requisite six months, and thus, she qualified as a de facto custodian. It is important to note that the child had resided with “paternal grandmother” for one two week period and a separate five month and twenty-four day period, rather than for a consecutive six month period.  The court awarded custody to the “paternal grandmother” and visitation to the biological father. The trial court also found that biological father did not timely commence a separate action to regain custody as required by KRS 403.270(1)(a) to toll the start of the time period required for a person to qualify as a de facto custodian.

On appeal, the “paternal grandmother” argued that the 6 month period required for de facto custodian status may be aggregated. The Supreme Court disagreed and held that the 6 month period required for de facto custodian status must be continuous and cannot be aggregated.

KRS 403.270(1)(a) states “any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.”

The Supreme Court held that filing a separate custody action is not necessary to toll the time period required for de facto custodian status under this statute and that any direct participation in a child custody proceeding that demonstrates a parent’s desire to regain custody of their child is sufficient. The Court reasoned that “a parent’s right to raise his or her child is a Constitutional right. And any process designed to take that right away should be fair and safeguard that right to the greatest extent possible. Therefore, we believe the process by which a parent may toll the de facto time period should be simple and easy.”

The Supreme Court held that biological Father’s first appearance at the dependency, abuse, and neglect hearing fourteen days after “paternal grandmother” was awarded custody was sufficient to toll the de facto custodian time period and, thus, “paternal grandmother” did not qualify as a de facto custodian.

Digested by: Emily T. Cecconi

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Paternal grandfather and his girlfriend were adjudged de facto custodians of minor child and were awarded sole permanent custody. Maternal grandmother was awarded grandparent visitation pursuant to KRS 405.021.

Mother and maternal grandmother appealed arguing that the family court erred by designating paternal grandfather and girlfriend as de facto custodians of the minor child as only an individual or a married couple can be named pursuant to KRS 403.270(1). The Court of Appeals agrees holding that an unmarried couple does not qualify as a single unit under KRS 403.270. Thus, the action is remanded to the family court.

Judge Lambert dissents arguing “the issue of permanent custody has been fully litigated and established.” She would affirm the family court applying the concept of fictive kin (KRS 199.011(9), KRS 600.020(28) (effective June 29, 2017) and valuing child welfare over the marital status ahead of a blood relative.

Digested by Elizabeth M. Howell

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