De Facto Custodian Status to Be Considered Anew Following Interruption in Status – Published Opinion from Kentucky Court of Appeals

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Turner v. Hodge, et al.

 

Child was born in March of 2005 to Murphy and Hodge, who were unmarried. In 2015, Hodge’s paternity was established, and a child support obligation was set on the same day. Turner, until Hodge's paternity was established, believed that her son, Jeffrey, was Child’s father, and Child lived with Turner at various times until 2017. In September of 2017, Hodge petitioned for custody of Child, not naming Turner as a respondent. Through a temporary agreed order, Family Court ordered joint custody of and equally shared parenting time with Child for Murphy and Hodge. On June 8, 2018, Turner moved to intervene in the custody action and requested de facto status, claiming to have been Child’s primary caregiver and financial supporter for 13 years. She alleged that Murphy told everyone that Jeffrey was Child’s father, Hodge had only seen the child once or twice before Child was placed with Hodge, Child had lived with her since birth, because Murphy was unstable and had drug issues, her son was incarcerated, and Hodge was also incarcerated. Turner sought temporary and sole custody of Child. Family Court allowed Turner to intervene on September 14, 2018.

 

At the hearing on Turner’s motions, Turner testified as follows: She believed Jeffrey was Child’s father for 11 years. Child stayed at her home 4 or 5 nights a week. Child lived with her full time when Murphy entered rehab in 2006 for nearly two years, at which time Child stayed with Murphy a couple days per week. Child lived with Turner from Kindergarten through fourth grade and began staying more with Murphy in seventh grade, at which time she stayed with Murphy a couple days a week and with Turner or Turner’s son, Jerry, the rest of the week. This was the status quo until Child was placed with Hodge in May of 2018. Turner was the primary caregiver and financial supporter of Child from 2006 through August of 2017, at which time Turner and Murphy began sharing time. Murphy had given Turner $400.00 three time over twelve years, and nobody else had given her money in support of Child. Turner had Child most of the time during Murphy’s parenting time, and that Hodge would allow Turner to have Child on weekends from time to time on his parenting weeks. Child spent a day at Jerry’s house every once in a while.

 

Broughton, a friend of Turner’s, testified as follows: Child lived with Turner or Jerry a lot of the time from Child’s birth, and spent time at Broughton’s home as well. Turner and Jerry provided clothing, shoes, and sports equipment for Child. She did not dispute that Child stayed with Murphy a couple days a week. Jerry was not around between 2004 and 2008 while he was in college.

 

Family Court denied Turner’s motion for de facto status, concluding that Turner lost standing to assert de facto status when Murphy reestablished her care from 2008 through 2015 and because Turner knew that Hodge petitioned for custody in 2017. Turner appealed.

 

The Court of Appeals affirmed Family Court, holding that Turner’s de facto status was interrupted and was subject to be considered anew. It reasoned that in Sullivan v. Tucker, 29 S.W.3d 850 (Ky. App. 2000), it held that a person who has achieved de facto status in the past is not always entitled to participate in custody matters related to a child, because every time de facto status is asserted, it must be considered anew. It further reasoned that Turner was not Child’s de facto custodian after 2015, because Hodge had been paying child support since at least 2015, Murphy and Hodge began exercising equally shared parenting time in 2017, Turner did not intervene in the custody action until the following June and never sought de facto status before then, Child spent considerable time at both Jerry and Broughton’s homes, in addition to Turner’s, and Jerry and others provided for Child’s financial support, not just Turner. Thus, Turner was not Child’s de facto custodian after 2015, at which time her alleged de facto status was interrupted and was subject to be considered anew.

 

Digested by Nathan R. Hardymon