De facto custodians must be determined before determining custody between two sets of grandparents: BAKER V. COMBS (COA 2/29/2008)

Mother appealed from TC’s order denying her motion for custody of her natural child and awarding continued permanent custody to Paternal Grandmother and Step-Grandfather (“Paternal Grandparents”). Mother and Father were never married, and Father never participated in the action or otherwise sought custody of Child. Mother is now married and has another child.

Child was first removed from Mother and placed in the temporary custody of CFC in January 2004 by Whitley District Court (“Whitley DC”) on the basis of Mother’s drug use and the fact that she left Child with Paternal Grandparents for the preceding two months; CFC placed Child with Paternal Grandparents. After adjudication hearing but before disposition hearing, Whitley DC transferred the case to the Laurel District Court (“Laurel DC”). Laurel DC, after permanency hearing, subsequently ordered that the permanency plan was placement with a permanent custodian pursuant to CFC’s recommendation and named Paternal Grandparents as the permanent custodians. Laurel DC entered a permanent custody order the same day, presumably naming Paternal Grandparents as Child’s permanent custodians, although the order portion of the preprinted AOC-DNA-9 form was not completed.

In the Findings of Fact portion of the form, Laurel DC indicated that it considered factors relating to a prior independent finding that a de facto custodian existed. However, CA found that the record did not contain any document reflecting a prior independent finding that a de facto custodian situation existed in this case.

Eight months later, Maternal Grandparents and Mother filed a Verified Petition for Custody in the Knox Family Court (“Knox FC”), as this was the home county of Paternal Grandparents and Child, requesting custody to Maternal Grandparents or to Mother. Knox FC permitted Mother supervised visitation with Child and ordered that she submit to random drug tests, each of which revealed a negative result. A year and a half later, Mother moved Knox FC for custody of Child, stating that she had complied with the court’s order that she rehabilitate herself, that she was married, and that she was leading a stable life. After hearing in which Mother’s witnesses testified that she had overcome her past problems with drug abuse, that she was currently a different person, and that she was capable of raising Child, and testimony regarding Mother’s past drug use and her past actions in leaving Child with Paternal Grandparents for extended periods of time, Knox FC denied Mother’s motion on the record, noting that Child had been in Paternal Grandparents’ home for more than 3 years and that the benefits of changing custody would not outweigh the harm in doing so. Knox FC entered an order to this effect, finding that it would not be in Child’s best interest to remove him from the Paternal Grandparents’ home and awarding Mother standard, unsupervised visitation.

Mother argued to CA that Knox FC erred in awarding custody to Paternal Grandparents, because they were not de facto custodians and she was not unfit. Paternal Grandparents asserted that Laurel DC decided the issue of de facto custodians, so that any further adjudication on this issue would be barred by res judicata, and that they are de facto custodians.

CA noted that a de facto custodian is defined in KRS 403.270(1)(a) as: :[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services.” CA stated that once it determines that such a person is a de facto custodian, TC shall give the person the same standing in custody matters that is given to each parent under this section, and determine custody in accordance with the best interests of the child.

CA found that there was no prior finding that Paternal Grandparents were de facto custodians, nor were there any findings that Paternal Grandparents were the primary caregivers and financial supporters of Child for the required statutory period, despite the fact that the form AOC-DNA-9 had some boxes checked in this regard. Therefore, before Knox FC may determine custody as between Mother and Paternal Grandparents using a best interests standard, CA held it must first independently decide that Paternal Grandparents are de facto custodians. As such a finding had never been made, CA vacated Knox FC’s order and remanded for a determination of whether Paternal Grandparents meet the requirements to be de facto custodians.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates