Trial court granted temporary custody of minor child to women believed to be the child’s biological paternal grandmother and aunt.
Four days after the dependency, abuse, and neglect hearing, which biological mother failed to attend, biological mother requested a paternity test for a man she believed to be the child’s true biological father. DNA results confirmed the man tested was the child’s biological father and that the women believed to be the child’s true paternal grandmother and Aunt were not biologically related to the child.
In April 2016, the true biological father moved to transfer custody and the trial court ordered that the biological father would begin with visitation with minor child and work toward receiving custody consistent with the child’s best Interest.
In September 2016, the biological father filed a separate civil action for custody. At a final hearing, the trial court found that the child had resided with its “paternal grandmother” for more than the requisite six months, and thus, she qualified as a de facto custodian. It is important to note that the child had resided with “paternal grandmother” for one two week period and a separate five month and twenty-four day period, rather than for a consecutive six month period. The court awarded custody to the “paternal grandmother” and visitation to the biological father. The trial court also found that biological father did not timely commence a separate action to regain custody as required by KRS 403.270(1)(a) to toll the start of the time period required for a person to qualify as a de facto custodian.
On appeal, the “paternal grandmother” argued that the 6 month period required for de facto custodian status may be aggregated. The Supreme Court disagreed and held that the 6 month period required for de facto custodian status must be continuous and cannot be aggregated.
KRS 403.270(1)(a) states “any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.”
The Supreme Court held that filing a separate custody action is not necessary to toll the time period required for de facto custodian status under this statute and that any direct participation in a child custody proceeding that demonstrates a parent’s desire to regain custody of their child is sufficient. The Court reasoned that “a parent’s right to raise his or her child is a Constitutional right. And any process designed to take that right away should be fair and safeguard that right to the greatest extent possible. Therefore, we believe the process by which a parent may toll the de facto time period should be simple and easy.”
The Supreme Court held that biological Father’s first appearance at the dependency, abuse, and neglect hearing fourteen days after “paternal grandmother” was awarded custody was sufficient to toll the de facto custodian time period and, thus, “paternal grandmother” did not qualify as a de facto custodian.
Digested by: Emily T. Cecconi
