2024-SC-0137-DGE
Bracken Circuit Court
Kentucky Supreme Court
Opinion by Justice Nickell
Date Rendered: December 19, 2024
Issue: Whether mother waived superior right to custody.
In 2016, shortly after birth, Child was placed with Paternal Relatives. In 2019, the Court entered a permanency order granting full custody to Paternal Relatives. In 2021, Mother sought to regain custody or obtain visitation and was granted supervised visitation with the supervision requirement ultimately being lifted. In 2022, Mother sought sole custody which was denied based upon her absence for the majority of the child’s life under the best interest analysis.
The Court of Appeals reversed and directed that custody be awarded to Mother, as the record did not support a finding that Mother waived her superior right to custody. The Supreme Court granted discretionary review.
The Supreme Court agrees with the Court of Appeals insofar as Paternal Relatives did not have equal standing to Mother because they obtained custody pursuant to KRS 620.027, but the underlying order was not compliant with KRS 403.270(2) relative to Mother’s superior rights to custody. Paternal Relatives were not de facto custodians but instead persons acting as a parent, so they did not have standing equal to a biological parent. As explained in Mullins v. Picklesimer:
“When a non-parent does not meet the statutory standard of de
facto custodian in KRS 403.270, the non-parent pursuing custody
must prove either of the following two exceptions to a parent’s
superior right or entitlement to custody: (1) that the parent is
shown by clear and convincing evidence to be an unfit custodian,
or (2) that the parent has waived his or her superior right to
custody by clear and convincing evidence.”
As the underlying order granting Paternal Relatives custody did not make specific findings in regard to Mother’s unfitness or waiver, Paternal Relatives were “required to demonstrate waiver or unfitness to defeat Mother’s superior right to custody.”
The Supreme Court disagrees with the Court of Appeals that Mother is entitled to immediate custody instead remanding the case for additional findings, as unlike the Vinson case, the lower court applied the incorrect standard from the onset of the case, so no assumption can be made that there was insufficient evidence regarding Mother’s unfitness.
Justice Keller dissents, joined by Justices Bisig and Thompson, stating simply that the Circuit Court sufficiently articulated the factors supporting its order and should be affirmed.
Digested by Elizabeth M. Howell