NO. 2023-CA-0984-MR
Hardin Circuit Court
Kentucky Court of Appeals
Opinion by Judge Combs
Date Rendered: July 12, 2024
Issues: Whether the legislative changes to aggregating time pursuant to the de facto custodianship statute, KRS 403.270, apply retroactively.
Whether grandparents volunteering assistance qualify as de facto custodians.
Paternal Grandparents filed a petition to be declared de facto custodians of Grandchildren. The Family Court granted their petition after a hearing and awarded them joint legal custody with parents. Parents appealed arguing that the Family Court erred by 1) applying KRS 403.270 retroactively, and 2) awarding de facto custodian status when Grandparents were providing care in conjunction with Parents.
The Court of Appeals agreed with Parents holding first that KRS 403.270(1)(a) is not retroactive. KRS 403.270 was amended in June 2021 to allow aggregate periods of time in calculating the time required to qualify as de facto custodians pursuant to KRS 403.270 which requires an aggregate of one year or more of primary caregiving and financial support within the last two years. Prior to June 2021, the statute did not allow aggregation. The Court of Appeals holds that as the change to the statute was substantive and the statue did not expressly declare it was to be applied retroactively, it was an error for the Family Court to apply it retroactively citing KRS 446.080(3) and the explanation from the Supreme Court in Commonwealth Department of Agriculture v. Vinson, 30 S.W.3d 162 (Ky. 2000).
While the statutory issue is dispositive of the Parent’s appeal, the Court of Appeals goes on to agree with Parents secondary argument as well, holding that the Family Court erred by invoking KRS 403.270 at all because Parents never abdicated their role as parents. In this case, Grandparents volunteered to provide assistance to Parents while one was employed full time and in nursing school. Parents were involved in all aspects of Grandchildren’s lives and were at times met with resistance from Grandparents who in their calculation of days under KRS 403.270 erroneously ignored the in toto time Grandchildren spent with Parents considering all shifting and overlapping time “their time.” The Parents’ “acceptance of desperately needed assistance was erroneously construed to constitute abdication of their constitutionally protected primacy as parents.”
Thus, the Court of Appeals reverses and remands the matter for entry of an order dissolving the de facto custodianship.
Digested by Elizabeth M. Howell