De Facto Custodians
http://www.kdva.org/DeFactoCustodians.html
Impact of KRS 403.270 on Child Custody Determinations
"De Facto Custodians"
I. Constitutional Rights of Parents
Parents have fundamental right protected by the United States Constitution to raise a family without interference from the government unless the government shows an important governmental interest, and even then, the state may intervene only upon a showing that clear and convincing evidence supports the need for state intervention. Santosky v. Kramer, 455 U.S. 745 (1982). Santosky involved a termination of parental rights action under New York state statutes which provided for termination upon a finding by "fair preponderance of the evidence" that a child is "permanently neglected."
The United States Supreme Court in Santosky declared that a natural parent has a fundamental liberty interest in the care, custody and management of their child protected by the Fourteenth Amendment to the U.S. Constitution, which does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Santosky at 752-754. Deprivation of this fundamental liberty interest requires, at a minimum, fundamentally fair procedures which include a clear and convincing evidence standard of proof. Santosky did not address the substantive application by New York Courts of the "best interest of the child" standard to determine what must be proven by clear and convincing evidence to justify state interference with the fundamental liberty interest of the parent(s) in the care, custody and management of their minor child(ren).
II. Kentucky Caselaw Addressing Nonparent Custody Determinations
In Davis v. Collinsworth, 771 S.W. 2d 329 (Ky. 1989), the Kentucky Supreme Court, addressing a parent/grandparent custody dispute, interpreted Santosky and Stanley v. Illinois, 405 U.S. 745 (1972), to require that any challenge by a third party seeking to abrogate a parent's "fundamental, basic and constitutionally protected rights to raise their own children" must show unfitness by clear and convincing evidence. (Davis at 330). Davis applied the common law doctrine of "unfitness" codified in KRS 405.020. Related cases confirming the required showing of "unfitness" by a natural parent in order for a non-parent to prevail in a custody dispute include McNames v. Corum, 683 S.W. 2d 246 (Ky. 1985) and Fitch v. Burns, 782 S.W. 2d 618 (Ky. 1989).
A second method for a non-parent to challenge a parent's superior, fundamental liberty interest in raising a child, is by application of the doctrine of waiver of that superior right, i.e., a unilateral voluntary and intentional surrender or relinquishment of a known right, or an election to forego an advantage which the party at his/her option might have demanded or insisted upon.
The case of Greathouse v. Shreve 891 S.W. 2d 387 (Ky. 1995) involved a father who had initially departed from the household, thereafter having only sporadic contact with the child, due to his immaturity, working out of town, changing jobs, unstable home life, and drug and alcohol problems. However, his attempts to maintain contact were also significantly discouraged and impaired by the hostility of the maternal grandmother, who had filed a false affidavit in a previous paternity proceeding involving the child as the only "way to completely eliminate" the father from the child's life. Greathouse at 389.
The Kentucky Supreme Court in Greathouse remanded for further proceedings because the trial court had not adequately considered whether the facts supported a waiver by clear and convincing evidence of the father's superior, fundamental liberty interest in raising his own child, noting that only upon such a finding could the trial court apply the "best interest" standard to the parent/non-parent custody dispute.
In a companion case to Greathouse, Shifflet v. Shifflet, 891 S.W. 2d 392 (Ky 1995), the Kentucky Supreme Court suggested that, where the trial court had ordered custody to the grandmother applying a best interest standard and the Court of Appeals had reversed finding that there was no showing of unfitness on the part of the mother, the best interest standard might be applicable because the facts more properly raised the issue of voluntary waiver of the parent's superior right to custody. The child had been in the temporary custody of the grandmother for more than ten years, along with the mother's other children while the mother was incarcerated for a series of offenses for approximately seven years before her rehabilitation as a law abiding employed and responsible person. The Court rejected application of the doctrine of equitable estoppel, noting that there was no necessity that the other party be mislead, but reaffirmed Greathouse in that "statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof."
III. Kentucky Legislative Changes Affecting Parent/Third Party Custody Disputes
During the 1998 General Assembly Session, Senate Bill 205 was enacted, creating a legal entity identified as a "de facto custodian," and defined as a person shown by clear and convincing evidence to be the primary caregiver and financial supporter of a child who has resided with the person for a period of six (6) months if the child is younger than three (3) years of age and for a period of one (1) year if the child is three (3) years of age or older or has been placed by the Department of Social Services. [Note: Since there is no helpful punctuation this language is susceptible of a strained interpretation that no residence period is required if the child has been placed by the Department for Social Services. However, the more likely intent is that there is a one year residency period regardless of age if the child has been placed with the alleged "de facto custodian" by the Department of Social Services.]
KRS 403.42 (4)(6) has been modified to permit the filing of a child custody proceeding in the Circuit Court by a "de Facto custodian," regardless of whether the child is at the time of the filing of the petition in the physical custody of one (1) of its parents.
Once one is determined, by clear and convincing evidence, to be a "de facto custodian," the third party who is contesting custody of a child is entitled to the same "standing" in custody matters that is given to each parent, including "equal consideration" with the parent in making a determination in accordance with the "best interest of the child." KRS 403.270 (1)(b) and (2).
In making an initial determination regarding whether the non-parent should be awarded "de facto custodian" status, the trial court is required to consider the circumstances under which the child was placed or allowed to remain in the custody of a "de facto custodian", including:
1. whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720; and
2. whether the child was placed with the "de facto custodian" to allow the parent now seeking custody to seek employment, work, or to attend school.
The statute states that the court may grant joint custody to the child's parents or to the child's parents and a "de facto custodian". KRS 403.270 (5). The statute requires that all persons determined to be ""de facto custodians" shall be joined as necessary parties under Rule 19 of the Kentucky Rules of Civil Procedure.
Additionally, placement of the child with a "de facto custodian" provides grounds to consider a motion to modify custody earlier than the two year period provided in KRS 403.340, if the placement is made by the custodian appointed under the prior decree. Under UCCJA proceedings, modification of a prior out-of-state decree may be made if the child has been placed by the previous custodian with a "de facto custodian". KRS 403.340 (2) (d).
Upon the death of either parent (not both), and at the time of death the child is in the custody of a "de facto custodian," the court shall award custody to the "de facto custodian" if the court determines that the best interests of the child will be served by that award. An example would be where the Mother has custody, and has terminal cancer. She lives with the children in her parents' residence. Because of her inability to work, and her illness, the grandparents primarily care for and financially support the children, even though non-custodial father pays timely child support and visits regularly. Unless father seeks a custody modification before the relevant time periods run, upon mother's death, father and grandparents are on equal standing in determining custody according to best interest standard.
IV. Potential Impact of KRS 403.270 Modifications on Child Custody Determinations: Thoughts for Attorneys Representing Victims of Domestic Violence
The creation of the "de facto custodian" entity may have special significance and impact on victims of domestic violence who have children. One of the reasons it is often so difficult for victims of abuse to leave the relationship is because of financial dependence issues. Often, the woman involved has few, if any of her own resources, and therefore is dependent on the abuser for the basic necessities for herself and her children. Survivors of abusive relationships are often forced to request assistance from family and friends in order to be able to successfully leave. In an era of ever shrinking public resource availability, this dependency on others for support is likely to increase. Frequently, battered women must return to the home of their parents, or move in with siblings or friends in order to survive and support their children while they attempt to find employment, a place to live, etc. While these support arrangements are often crucial, with the modification of KRS 403.270, special consideration should be given to the possibility that the arrangement could later cause custody complications for the client who has been the victim of domestic violence.
Although the statute does provide that the trial court must consider the circumstances under which the child came to be with the third party, including evidence of domestic violence, or to permit the parent to seek employment, work or attend school, there is still a lot of discretion provided to the court. A likely scenario where the "de facto custodian" situation may arise could be where the victim of abuse left her abuser and with the children moved in with her parents, (or sister or friend - the statute does not require that the third party be a relative in order to gain the "de facto custodian" status) who happily offered to support her and provide child care while she "got on her feet." Initially, the situation might work well for all of the parties involved, until the victim tried to assert independence or engaged in behavior not deemed "appropriate" by her parents, e.g. stopped going to church, got a new boyfriend, etc. In this instance, if the required time periods had passed, the grandparents could move the court to grant them "de facto custodian" status and then custody. In this type of situation, the grandparents would be more likely to have the financial resources to hire an attorney, and since they no longer have to prove their daughter unfit to be one an equal legal status, may likely appear to the court as better able to care and provide a stable environment for the children.
Additionally, even if the mother's behavior wasn't deemed inappropriate by her parents, the fact that she was working a forty hour week, or was in school full time, etc. would potentially provide a situation where the grandparents could argue that they were the primary caregiver for the child(ren), in addition to the provider of financial support. The statute provides little guidance as to what "primary caregiver" means, except to say, "[t]he extent to which the child has been cared for, nurtured, and supported by any de facto custodian[.]" KRS 403.270 (2)(g)
The statute does require that the court consider the "intent of the parent or parents in placing the child with a de facto custodian[.]" KRS 403.270 (2)(h) Therefore, when working with a victim of domestic violence who has children and is planning to seek assistance or already has from family or friends, it will be important to counsel her on the potential ramifications of the arrangements and possibly take protective measures. Some suggestions for preventative steps include encouraging clients who are natural parents to keep an eye on the calendar when relying on third parties to provide assistance, reasserting where possible their superior fundamental liberty interest to make the primary decisions about raising their children before any party is in a position to claim the "de facto custodian" status. Clients who are natural parents should be encouraged to document, through written agreement, power of attorney, etc. the reason(s) for a joint caretaking arrangement as early as possible in the arrangement in order to demonstrate their intent that the arrangement is not to infringe on the parents' superior, fundamental liberty interest, but rather to assist the nuclear family in bettering its educational, financial and/or emotional stability. Clients should memorialize proof of primary caretaker and primary financial support. Natural parents will be more likely to prevail where they are able to show that they have not abdicated parental responsibility, but that the reduced caregiving and/or financial support was a) due to circumstances beyond their control, and possibly b) was accepted or ratified or encouraged by the third party. It is important to avoid the appearance of a situation that resembles the pre-modification "waiver" cases, where it is determined that the natural parent's actions amounted to an intentional and voluntary waiver of their superior custody rights. Domestic violence perpetrators should not be permitted to profit from their offensive and illegal behavior. Therefore, in situations where the perpetrator places the children, who are often taken by force from the victim, with his parents, public policy arguments should be made to prevent his parents from gaining "de facto" status - equal standing, with the victim/mother. Section 403.270 (2) (i) provides that the court must consider, as circumstances for placement with the de facto custodian, whether "the parent now seeking custody was previously prevented from doing so as a result of domestic violence . . .[.] In this instance public policy arguments should be made that "previously prevented" should not be narrowly interpreted to include merely legal impediments, but to also include domestic violence dynamics realities, of the social, economic and psychological impediments to seeking custody.
|
loisjs5875@...
grandmom25248
 Offline
 Send Email
|
Having problems with message search?
Fill out this form to ensure your group is one of the first to be migrated to the new message search system.
