Wethington v. Coffey, 2011-CA-000555-ME
Published: Vacating and Remanding
Father appealed FC’s order awarding joint custody of his children along with the children’s deceased mother’s nephew and wife, contending that deceased mother’s nephew and wife did not have standing to pursue custody.
Father and Mother shared joint custody of twins after divorce, with Mother providing twins’ primary residence and Father receiving standard visitation schedule. Three years’ later, Father’s visitation was suspended following a social services investigation alleging he had abused his minor daughter (the twins’ half-sister). Father later received visitation once again, but for minimal periods of time. However, he consistently failed to exercise the time he was given and had very little involvement in the twins’ lives over the next six years while Mother was still alive. Meanwhile, Mother’s nephew, his wife and their children, who were approximately the same age as the twins, spent substantial amounts of time with them during the same time period.
The day that Mother died, Nephew and Wife filed petition for emergency custody, indicating in the Petition that Father’s whereabouts were not known. FC granted them emergency custody and two days later, they were granted temporary custody after a temporary removal hearing. They filed for permanent custody a few weeks later. After another temporary custody hearing a few months later, the parties agreed that Father would have visitation with children 4 days a week for the next 2 months. Father again neglected to exercise his visitation. FC drastically limited visitation again but Father still did not exercise all time that was allotted to him. After final hearing, FC found Nephew and Wife had standing pursuant to KRS 403.822(1)(b)1 and KRS 403.800(13); that Father should not have custody because he had inflicted emotional harm on the twins, exhibited moral delinquency, and had abandoned the twins; and that Nephew and Wife should share joint custody with Father but Nephew and Wife would provide primary residence for twins with Father receiving the same drastically limited visitation. Father appealed.
CA agreed with Father that Nephew and Wife did not have standing to pursue custody action. While CA agreed that KRS 403.822 was appropriately relied upon by FC in its analysis of standing in this case, FC misinterpreted and misapplied KRS 403.800(13), which defines “a person acting as a parent” who might have standing under KRS 403.822. Such a person must have legal custody or claim a right to legal custody AND have or have had physical custody of the child for six months of the year preceding the custody action. Here, Nephew and Wife had custody for less than a month prior to filing their petition. CA disagreed with Nephew and Wife’s interpretation that the six month limitation should only be imposed on parties who no longer have physical custody, and thus did not apply to them as the custodians at the time of filing. CA, on a matter of first impression, found that the six month requirement applies to any party seeking custody, regardless of the current physical custody status. Thus, Nephew and Wife did not have standing to pursue custody of twins.
Vacated and Remanded.