Greenup Circuit Court
Kentucky Supreme Court
Opinion by Justice Thompson
Date Rendered: August 14, 2025
Question Presented: Whether the family court erred by denying the child’s custodian’s partner’s motion to intervene in the custody action between the custodian and the child’s biological mother when: (1) the partner’s motion to intervene was filed soon after the custodian died; and (2) the custody action had been pending for six years at the time of the partner’s motion. Additionally, whether the family court erred by ruling that the custodian’s partner was not a de facto custodian because he cared for the child alongside the custodian.
M.S. was born in 2012 to Kendra and Christopher Stiltner. Because of prior abuse and neglect findings against Kendra involving her other children, the Cabinet for Health and Family Services placed M.S. directly with her paternal grandmother, Denise Stiltner, and Denise’s partner of thirty years, David LeMaster. From the first day of her life, M.S. lived in Denise and David’s home. They provided her daily care, financial support, and stability.
Over time, Kendra worked to regain contact with her daughter, but she was never awarded custody. Instead, she gradually obtained visitation rights, first supervised and then unsupervised, while Denise remained the permanent custodian. Throughout this period, David lived in the home and took on the day-to-day role of father figure to M.S.
When Denise died in 2022, the question of who should raise M.S. became urgent. Within two days, David asked the court to let him intervene in the ongoing custody case, arguing that he was M.S.’s de facto custodian. Kendra opposed the motion, asserting her superior right as the biological parent. The family court sided with Kendra and awarded her custody in a brief hearing, denying David any chance to present evidence. The Court of Appeals affirmed.
The Kentucky Supreme Court reversed. It explained that David had adequately alleged facts that could qualify him as M.S.’s de facto custodian. The Court emphasized that Denise and David had raised the child together for nearly a decade, functioning as a parental unit. Kentucky law already recognizes that married couples can jointly hold de facto custodian status; in Krieger v. Garvin (2019), the Court extended that principle to unmarried, cohabiting partners. Applying that reasoning, the majority held that David could pursue recognition as a de facto custodian alongside Denise, even though Denise had previously been awarded legal custody.
The Court also rejected the argument that David’s motion to intervene was untimely. Although the custody case had been pending since 2015, Denise’s role as legal custodian meant she adequately represented their shared interest in keeping M.S. in their home. Only upon her death did David’s interest diverge, and he filed his motion almost immediately afterward. In that context, the Court found his request timely and appropriate.
Finally, the majority criticized the lower courts for resolving such a sensitive custody matter without proper process. The family court should have appointed a guardian ad litem for the child, sought input from the Cabinet, and held an evidentiary hearing before uprooting M.S. from the only home she had ever known. Instead, the court transferred custody to Kendra summarily, despite her history of neglect findings and the child’s deep bond with David. The Supreme Court remanded the case for a full hearing to determine whether David qualifies as a de facto custodian and, if so, whether custody or visitation with him serves M.S.’s best interests.
Two justices dissented. They argued that the timeliness of David’s intervention was the threshold issue and that the family court’s determination on that point deserved deference. In their view, David should have sought party status much earlier in the litigation, rather than waiting until 2022. Because they believed his motion was untimely, the dissenting justices found it unnecessary to address whether he could ever qualify as a de facto custodian. They also criticized the majority for expanding issues that were not fully briefed by David on appeal.
Digested by Nathan R. Hardymon