Waiver of Superior Right to Child Custody, Johnson v. Overbee digest, Ky Court of Appeals

Johnson v. Overbee, 2011-CA-002097-ME

Published:   Affirming   

County:  Lee

Biological parents appealed FC’s ruling denying their petition for custody of Child.      

FACTS:

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.      

ANALYSIS:

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.

Affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

Comments

[Jsparacino]

This case begins a terrible slippery slope weakening a critical right of parents to their children. A defendant in a traffic case has more rights to have a waiver be specifically made than these parents had as the old common law doctine of "silence betokens consent" appears to be what is being applied. These parents may be different people today than they were four years ago. Also, there was never a specific finding of unfitness at the time and no finding of unfitness in the present. I hope this ruling will be appealed.