Divorce Law Journal

One Published Family Law Opinion from Ky Court of Appeals Today

Shafizadeh v. Shafizadeh, jurisdiction, marital property, attorney fees, relocation and modification of custody, discharge of orders of garnishment, personal data identifiers and CR60. 44 pages.

Digest to follow.

Defacto Custodian Case Digest, Spreacker v. Vaughn, el al, Ky Court of Appeals

Spreacker v. Vaughn, et al

No. 2011-CA-002011-ME

Published:   Opinion Affirming  

County:  Greenup

Sandra Spreacker appeals from an order of Greenup Family Court which determined that Denise Vaughn, the paternal Great-Aunt of the minor child (B.C.), to be the de facto custodian of that child.

In July, 2010 while baby-sitting B.C., Vaughn noticed severe diaper rash.  She contacted Spreacker who requested that B.C. be returned home the next day.  The next day, however, Spreacker was arrested.  The child’s father was already incarcerated.  Although Vaughn had physical custody, she did not have legal custody, so she filed a petition for juvenile dependency, neglect, and abuse in Boyd County.

On July 7, 2010, Boyd District Court granted emergency custody to Vaughn and granted her custody after a temporary removal hearing on July 12.  On July 27, Vaughn amended her petition to allege B.C. was medically neglected.  After an adjudication hearing on September 14 during which B.C.’s parents admitted to neglect, the court ordered B.C. to remain in Vaughn’s custody.

On January 3, 2011, Vaughn filed a petition for custody in Greenup, her home county.  At a hearing on May 3, 2011, the Greenup Family Court found that Vaughn was a de facto custodian and awarded her custody of B.C.  This appeal followed.

The Greenup Family Court found that B.C. continuously resided with Vaughn who made sure the child received all necessary medical procedures and Vaughn was the primary financial supporter.  B.C. had a Kentucky medical card before custody was awarded to Vaughn and received money from Kinship Care which merely covered daycare expenses.  Spreacker argues that Vaughn was not the primary financial support because of these benefits.  The Court of Appeals disagreed and said the government benefits only supplemented what Vaughn provided and the benefits did not supplant the primary support of the child.

The Court of Appeals distinguished this case from those involving foster parents, who receive support from the Cabinet.  B.C. was never in the custody of the Cabinet and Vaughn is not a foster parent.  KRS 403.270 requires a de facto custodian to serve as the “primary” – not the “sole” caregiver and financial supporter.

The Court of Appeals found that because the child is under the age of three and was never “placed” by the Cabinet, the statutory criteria was satisfied.  Moreover, the CA held that because Spreacker did not commence a separate action to regain custody, she did not toll the calculation of the statutory time for establishing a de facto custodian.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.