Former life-partner of Child’s adoptive
mother appealed from FC’s denial of her motion for joint custody, visitation
and to set child support due to lack of standing.
Truman and Lillard were in a
marriage-like relationship for four years prior to Lillard obtaining temporary
guardianship of her six-month-old nephew, Thomas. Truman and Lillard had discussed plans to
start a family, but at that time were waiting to do so as they were both
full-time students. However, because
Thomas was her nephew and needed a healthy home, Lillard began the adoption
process, which was finalized in 2008.
The couple was aware that they could not legally jointly adopt Thomas in
Kentucky. Although Truman assisted in
raising Thomas as one of his “Mommies”, no steps were taken to establish
parenting rights for her. In February
2010, the couple broke up and Truman left the Mississippi home she shared with
Lillard and Thomas. After a domestic
dispute in which Truman attempted to take Thomas, Lillard moved to Lexington
with Thomas, obtained a restraining order against Truman, refused further
communications from her, and refused to
allow her to spend any time with Thomas.
Truman filed a petition for joint custody and visitation and volunteered
to pay child support. In October 2010,
the parties agreed to a visitation order.
Lillard subsequently relocated again, to Bowling Green, and sought a
transfer of the case to Warren FC based on her new address, which was denied. In November 2010, Fayette FC held a hearing
based on whether Lillard had waived her superior right to custody pursuant to Mullins v. Picklesimer. FC orally found she had not, though no written
orders were entered. In August 2011,
Truman petitioned the court for a status hearing and for written orders on the
waiver issue. FC did so, finding Lillard
had not waived her superior right and that Truman had no custodial rights, and
denied Truman’s request for visitation and for a new trial. Truman appealed, arguing that FC erred by: 1.
Failing to transfer the matter to Warren FC; 2. Failing to make sufficient findings of fact
on visitation; 3. Incorrectly relying on
Picklesimer regarding visitation; and
4. Entering findings of fact not
supported by the evidence.
CA disagreed with all of Truman’s
contentions. First, Truman’s argument
regarding transfer to Warren FC was completely inconsistent with her actions in
Fayette FC, and CA held she was judicially estopped from challenging FC’s
action which was consistent with her requested relief.
Regarding the sufficiency of findings
on visitation, CA held that FC did make findings in this regard and that FC is
not required to address every piece of evidence or argument by counsel for
findings to be sufficient. So long as
FC’s findings reflect a good faith effort at fact-finding and complies with CR
52.01, the findings will be sufficient. CA
found that FC’s findings did so and were sufficient.
Next, CA addressed whether FC should
have relied on Picklesimer on the
visitation issue or if it should have applied the in loco parentis doctrine.
CA noted that this reliance was appropriate and that the in loco parentis doctrine has been
replaced by the de facto custodian
statute; thus, non-parents may attain standing to seek custody or visitation of
a child only if they qualify as de facto custodians,
if the legal parent has waived her superior right to custody, or if the parent
Lastly, CA disagreed with Truman’s
contention that the findings of fact relative to custody were not supported by
the evidence. CA held, “Although
we appreciate the substantial and significant relationship Truman had with
Thomas, she was not his parent, she could not qualify as a de
facto custodian, and he resided with his only parent, Lillard. … This
case serves as an illustration of the exception to Mullins,
where we distinguish a non-parent truly acting in the capacity as a parent from
the many people who may love, care for and support a child . . . . Not every
person who genuinely loves and cares for a child gains custodial rights; waiver
requires significantly more. There was no error.
Maternal Biological Grandmother
appealed FC’s order dismissing her motion for grandparent visitation on the
basis that she lacked standing.
In 1990, Michelle voluntarily
relinquished her parental rights to Kristen and Michelle’s mother, Kristen’s
biological grandmother, adopted Kristen.
In 2004, Kristen gave birth to Alexis.
Despite termination of Michelle’s parental rights to Kristen, Michelle
and her husband developed a close relationship with Alexis. Alexis even resided with them for several
months. However, in 2010, Michelle and
her husband obtained DVOs against Kristen on the basis that she threatened to
kill them. Kristen and Alexis’ father then
refused to allow Michelle and her husband to have contact with Alexis. Michelle and her husband initiated a custody
action, asserting standing as de facto custodians. FC dismissed the custody action, finding that
Michelle and her husband had not been Alexis’ primary caregivers for at least
one year prior to filing the petition as required under KRS 403.270. Michelle and her husband then filed a
grandparent visitation action, which FC also dismissed, finding that due to the
termination of Michelle’s parental rights to Kristen, she was not legally
Alexis’ grandmother (and her husband, lacking even a biological relationship to
Alexis, was also not a legal grandparent.)
However, FC implored CA to overturn its finding regarding standing, finding
that a continued relationship with Michelle and her husband was in Alexis’ best
interests. Michelle and her husband
appealed, although no argument was presented on husband’s behalf.
CA noted that termination of parental
rights constitutes a permanent severance of the parent-child relationship—it is
as if the parents of a child suddenly died, as there is no longer a legal right
to contact between the parents and the child.
All parental rights are then vested in the adoptive parent. Thus, Michelle’s termination of her parental
rights to Kristen included termination of a future right to a relationship with
Alexis, and Kristen and Michelle became sisters for legal purposes, meaning
Michelle is legally considered Alexis’ aunt.
As there is no statutory protection for visitation rights of aunts and
uncles, Michelle had no standing to pursue visitation of Alexis.
Biological parents appealed FC’s
ruling denying their petition for custody of Child.
Child of Biological Mother and Father
tested positive at birth for multiple illicit drugs, and Cabinet filed and was
granted a petition for emergency custody.
After one and a half month removal, Biological Parents regained custody
of Child. Four months later, Biological
Mother shot Child in abdomen while attempting to shoot Biological
father—Biological Father had held Child in front of his body as a shield and
Biological Mother shot anyway. Cabinet
was again granted emergency custody, but this time placed Child with Biological
Mother’s Cousin and her husband. FC
ultimately conducted adjudication hearing and granted permanent custody of
Child to Cousin and her husband.
Biological Parents were present at the hearing and represented by
counsel, and made no objection to the award of custody, nor did they appeal
that award. Almost two years later,
Biological Parents filed a petition for custody of Child. FC issued an Order on that petition almost
four years later, in which it determined that Biological Parents had waived
their superior right to custody of Child, and that it was in Child’s best
interests to remain in custody of Cousin and Husband. Biological parents filed this appeal.
CA noted that while biological parents
have a superior right to custody of their children, a third party may acquire
standing to obtain custody of a child if the biological parent is unfit or if
the biological parent waived his or her superior right to custody. For the waiver to be effective, the
biological parent must have intended to voluntarily and indefinitely relinquish
custody of the child. CA found that
Biological Parents did just that at the adjudication hearing, and their failure
to file an appeal further evidenced that intent, demonstrating by clear and
convincing evidence that Biological Parents waived their superior right to
custody of Child. CA noted that there
also appeared to be substantial evidence of Biological Parents’ unfitness, but
such a finding was rendered moot by the finding regarding waiver.
B.M.H. appeals from Order of Jefferson
Circuit Court, Family Division, denying his motion to dismiss its September 22,
2011, judgment terminating his parental rights to I.C.D.
I.C.D. was born to N.D. on August 8,
2010. Both mother and child tested
positive for cocaine metabolite and a report was filed with the Cabinet for
Health and Family Services. The Cabinet
obtained an emergency custody order & filed a petition alleging I.C.D. was
an abused or neglected child, naming B.M.H. as the father. The Cabinet was granted temporary custody. On November 8, 2010, the Cabinet filed a
petition for involuntary termination of B.M.H.’s parental rights. B.M.H. was incarcerated at the time of the
hearing and participated telephonically.
The Family Court terminated B.M.H.’s parental rights to I.C.D. B.M.H. files this appeal.
B.M.H. argues that he should not be included
in the action because he is not the putative father. In an action to terminate parental rights,
KRS 625.060 requires the Cabinet and the biological parents, if known, to be
parties in the action. Putative fathers
are not necessary parties if exempted by KRS 625.065. The statute requires a putative father to
participate in an action to terminate parental rights only if one of six
conditions exist. If none of the
conditions exist, the putative father has no parental rights to the child.
At the hearing, a social worker employed
by the Cabinet, testified that the mother identified B.M.H. as the father in an
affidavit, but no affidavit was introduced as evidence. Since B.M.H. did not object to the testimony
about the affidavit, any error in its omission was not preserved for review.
B.M.H. is without parental rights to
I.C.D. either by the Court’s order or by the effect of KRS 625.060(2). Since he would have no rights irrespective of
the admission of testimony regarding N.D.’s affidavit, the Court of Appeals was
unable to say that the alleged error resulted in manifest injustice to
B.M.H. Manifest injustice requires a
showing that a different result would have occurred or the error was so
fundamental it threatens a party’s right to due process.
The order of Jefferson Circuit Court,
Family Division, is affirmed.
Putative Father appealed FC’s judgment
of paternity, claiming he should have been granted evidentiary hearing.
Mother of Child filed paternity
complaint against Putative Father.
Genetic testing confirmed that Putative Father was the biological father
of Child, and Putative Father did not contest the validity of this
testing. He continued to contest the
finding of paternity and requested an evidentiary hearing, contending that he
did not have consensual sexual relations with Child’s Mother but that, while a
guest in his and his wife’s home, she had unlawfully obtained his sperm from a
used condom after he had sexual relations with his wife and inseminated herself
with it. FC denied Putative Father’s
request for evidentiary hearing and entered a judgment of paternity.
Putative Father contended to CA that
FC’s refusal to grant him an evidentiary hearing was contrary to KRS Chapter
406. CA agreed, holding that genetic
testing alone is insufficient to establish paternity if the father were to
raise a legally sufficient reason as to why paternity should not be entered
against him. Per KRS 406.111, genetic
testing of 99% probability of paternity is only a “rebuttable presumption”
which may be rebutted by a preponderance of the evidence. Thus, putative fathers are entitled to an
evidentiary hearing to attempt to rebut the presumption.
CA also held that Putative Father’s
argument that he did not engage in consensual sexual relations with Child’s
Mother and did not consent to the use of his sperm would trump any public
policy arguments requiring fathers to support their out-of-wedlock children or
holding a man strictly liable for his sperm if he engages in consensual sexual
Published: Affirming in Part, Vacating in Part, and Remanding
SC granted Ex-Husband’s motion for
discretionary review regarding the appropriate distribution of his IRA account,
which Ex-Husband no longer disputed was marital property.
Husband and his employer began
contributions to a 401(k) plan in 1992.
Husband and Wife married in December 1998. Wife spent most of marriage as a
homemaker. Husband’s and his employers’
contributions to the plan continued until January 2001 when Husband resigned;
he subsequently rolled the 401(K) over to an IRA. Husband and Wife separated in November 2007
and divorced in December 2008. All
matters of support and property division were agreed upon except for the
division of Husband’s IRA. At the
hearing on this issue, Husband only submitted records of contributions made
after the marriage, from August 2000 through January 2001, as both his and his
former employers’ other records had been destroyed in a flood. He submitted no records regarding the value
of the account on the date of marriage, but he did submit the values when the
401(k) was rolled over to an IRA, in May 2001.
Husband argued to the trial court that the contributions from records
submitted to the trial court should be extrapolated to establish the amount
that was contributed during the marriage and that the remainder should be his
nonmarital property. FC found that the
entire account was marital as Husband failed to meet the burden of proof as the
proponent of a nonmarital property interest.
FC then found that the account should be divided equally between the
parties as of the date of decree.
Husband appealed this ruling to CA, which affirmed FC’s finding that the
account was marital property; however, CA determined that because Wife
presented no proof that she made any direct or indirect contribution to the
account, an equal division of the account was not supported by the record; CA
remanded to FC with instructions to award Husband 100% of IRA.
Ex-Wife moved SC for discretionary
review, asking 1. Whether FC’s finding
that parties were married when an asset was acquired is sufficient to support
equal division of the asset under Gaskill
v. Robbins; and 2. Whether, on
appeal, CA may make a different award of the division of marital property
without applying KRS 403.190 factors.
FC’s finding that parties were married when an asset was acquired is
sufficient to support equal division of the asset under Gaskill v. Robbins:
SC found that this premise boils down
to requiring FC’s presumption that both parties to a marriage contribute to
assets acquired during the marriage. SC
disagreed. KRS 403.190 requires FC to
consider the contribution of each spouse to acquisition of the asset (including
homemaker duties); value of the property set aside to each spouse; duration of
the marriage; and economic circumstances of each spouse when the division is to
become effective. SC noted that Gaskill emphasized many intangible
contributions to acquisition of an asset that FC must consider in its property
division determination, but the language does not purport to create a
on appeal, CA may make a different award of the division of marital
property without applying KRS 403.190 factors:
SC agreed with Ex-Wife, noting that FC
committed same error as FC when it failed to consider all factors of KRS
403.190 when it awarded 100% of IRA to Husband.
CA based its decision on evidence of contribution, but did not consider
the other three factors. FC’s findings
of fact were insufficient, and CA should have remanded for further
Reversed and Remanded for to FC for
additional fact-finding regarding KRS 403.190 factors.