DE FACTO CUSTODIAN: ALLEN V. DEVINE (COA 5/25/2007)

ALLEN V. DEVINE
FAMILY LAW:  De Facto Custodians
2006-CA-000841
PUBLISHED: AFFIRMING
JUDGES:  NICKELL PRESIDING WITH PAISLEY & TAYLOR (RESULT ONLY) CONCURRING
DATE RENDERED: 5/25/2007
COUNTY:  LOGAN

Issue and Holding:
Whether the trial court erred in finding that the Allens had relinquished their superior right to permanent custody as de facto custodians. The COA held no; the trial court’s order was supported by substantial evidence.

Facts:
The Court of Appeals already reviewed this matter once before in Allen v. Devine, 178 S.W.3d 517 (Ky.App. 2005). In its prior opinion, the Court affirmed the trial court’s ruling that the Allens were de facto custodians of two minor children, but remanded the case for a determination of whether the Allens were unfit or had waived their superior right to custody.

On remand, the trial court found that the Allens had relinquished their superior right to custody in 2003 and ordered that permanent custody of the children should remain with the Devines, the maternal grandparents, based on the best interests of the children.

Analysis:
Pursuant to KRS 403.270, the Allens are entitled, as de facto custodians, to be considered as potential custodians unless they are found to be unfit or proven to have waived their superior right to custody. The trial court made no finding that the Allens were unfit, and the Court affirmed said decision.

The trial court did find that the Allens had waived their superior right to custody based on their testimony at the 2003 trial and 2006 hearing. Waiver requires evidence of a voluntary and knowing relinquishment of a known right, and waiver can be implied by a party’s conduct. In 2003 the Allens both testified that it was always their intention for the children to go back to live with their mother once she got her life together. The Allens clearly wanted the court to maintain status quo, not terminate the parental rights of the biological mother or father, and to allow the Allens to retain custody until the biological parent(s) became fit. The Allens never expressed a desire to have permanent custody of the children.

During the 2006 hearing, the Allens confirmed their 2003 testimony. Although, they stated that they would now adopt the children and admitted that the biological parents may never become fit to resume custody of the children.

The Court found that the above testimony, even though somewhat conflicting, was clear and convincing evidence upon which the trial court could, and did, find the Allens had waived their right. The Court also found the instant case was distinguishable from Vinson v. Sorrell, 136 S.W.3d 465 (Ky. 2004), since the Allens have maintained that the most they ever desired was temporary custody of the children. Finally, the Court noted that the Devines were not de facto custodians, pursuant to KRS 403.270, and it was improper to characterize them as such. AFFIRMED.

by Sarah J. Nielson @ www.LouisvilleDivorce.com

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