No. 2023-CA-1073-ME
Meade Circuit Court
Opinion by Judge Karem
Date Rendered: July 12, 2024
Child’s biological paternity was never established. Biological Mother and Mother’s husband, Father, raised child to believe Father was child’s biological father.
Child called Father “dad,” Mother changed Child’s surname to Father’s surname, Father was a stay-at-home dad, and Father was listed as Child’s parent on school and medical forms. Mother and Father discussed Father adopting Child. Then, Mother and Father divorced. Child was not included in the divorce agreement, but Mother and Father practiced an equally shared parenting-time schedule. Father also contributed equally towards Child’s financial support. Mother eventually ended Father’s contact with Child. Father filed a petition for custody and parenting time.
The Family Court held that Father did not have standing to bring a petition for custody and that Mother had not waived her superior right to custody.
The Kentucky Court of Appeals reversed the Family Court’s holding that Father did not have standing to bring a petition for custody because he co-parented child for at least six-months in the year prior to filing the petition.
On appeal, Father agreed that he did not meet the criteria to qualify as a de facto custodian as set forth in KRS 403.270 but argued that he had standing pursuant to KRS 403.800, the Uniform Child Custody Jurisdiction and Enforcement Act. KRS 403.800 confers standing on “a person acting as a parent” who had physical custody of a child for a period of six consecutive months within one year of filing the petition. The statute further defines “physical custody” as “physical care and supervision,” but does not require the care and supervision to be exclusive.
The Court of Appeals agreed with Father, reasoning that Father performed traditional parental responsibilities on an equal timesharing basis with Mother for at least six months.
The Court of Appeals further held that, based upon the factors set forth in Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010) and J.S.B. v. S.R.V., 630 S.W.3d 693 (Ky. 2021), the Family Court’s findings were not sufficient to support its conclusion that Mother did not waive her superior right to custody.
The Family Court based its decision on the fact that, unlike in Mullins, there was no written agreement granting Father any form of custody of Child. However, the Court of Appeals held that Mullins does not require such an agreement to support a finding of partial waiver.
Digested by Emily T. Cecconi