Kentucky Bankruptcy Law

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De Facto Custodian and Guardianship

The Court of Appeals of Kentucky recently rendered its opinion in McCary v. Mitchell, 2007-CA-000322-DG (Aug. 1, 2008)(to be published) which clarifies a point of law regarding the status of de facto custodian. A de facto custodian is a person who has provided the primary car of a child and the primary financial support of that child for a certain period of time (6 months for children under 3 years or 1 year if 3 years and older or placed by the Cabinet for Health and Family Services). See KRS 403.270 for a more detailed definition.

In the McCary case, a four year old little girl’s (B.E.M.) mother had been killed by her father, Samuel. Sam was indicted for the 2001 murder, but he did not plead guilty until 2005. During those four years, Sam had guardianship of B.E.M. but the case alludes that she actually resided with paternal aunt and uncle McCary. The maternal aunt and uncle Mitchell had sought custody of B.E.M. early on, but the Graves County District Court had determined it was a guardianship action and left that in the hands of Sam because of the presumption of innocence. The Mitchells resumed their guardianship action once Sam was sentenced.

At first glance, it appears that the de facto custodian provision would apply and give the McCarys equal standing as a parent because B.E.M. had lived with them for the requisite time and, presumably, she had received primary financial support from them. The Court never reaches those factual inquiries because they state that the entire de facto custodian status does not apply in this case. The Court appears to offer two bases for this holding. First, they say that KRS 403.270(1)(b) expressly limits application to dissolution of marriage situations. The second basis is that the de facto custodian provision applies to disputes between a parent or parents and a third party care provider. This makes sense because when a dispute is between two non-parent care providers there is no presumption giving one a superior right. The de facto custodian provision was created to address situations where a non-parent care provider nearly always lost to a parent even if that parent had never been in a caretaker role of the child.

I suspect there would have been an entirely different result had the McCarys sought custody of B.E.M. after caring for her for a year. Had they initiated an action then, they would have been fighting against dad and been on equal footing with dad who was indicted for murder. I also suspect that had they been found to be de facto custodians in that custody action, they would have been in a superior position when the Mitchells pursued their action.

This case highlights some of the vagaries of family law and the need for developing alternate strategies in any particular matter. The various laws that impact family life do not mesh well together leaving open many possible results and surprises.

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September 1, 2008 - Posted by | child custody, Custody, Family Law, Guardianship | , , , , ,

11 Comments »

  1. I am currently a third party in a custody dispute here in Maryland. Based on this article, it would be in my best interest to first present evidence declaring me a de facto parent. Great article! Please forward me other citations that may help me win my case for joint custody.

    Comment by Valerie Ross | May 19, 2009 | Reply

  2. I’m the mother of three beautiful children and I’m in a custody battle with my children’s grandparents. They are considered de facto custodians. It is a huge mess. No matter what I do to prove myself it seems like the door always gets shut in my face. I agree totally in this act. It is great but come on in my case I’m looking at never getting them back because of a mistake i made 4 years ago. To all the parents involved in this too just never give up. It’s all about the kids!!!!!!!!!

    Comment by Stephanie Watson | February 24, 2010 | Reply

    • I FEEL THE SAME WAY AS U DO . I MADE SOME BAD DECISIONS IN MY PAST. MY MOM IS A DEFACTO IN MY CASE. I HAVE JOINT CUSTODY SHARED WITH ME MY MOM AND MY SON’S FATHER. THIS MAN IS BACK INTO DRUGS YET AGAIN. BEEN BACK TO JAIL. I HAVE BEEN CLEAN FOR OVER 6 YRS AND NOW TO FIND OUT THAT MY SON IS ORDERED BACK TO KENTUCKY HERE RECENTLY. I FEEL AS IF THE COURTS HERE IN CAMPBELL COUNTY ARE NOT LOOKIN OUT FOR THE BEST INTREST OF MY CHILD. THE JUDGE THAT WAS THE JUDGE THAT STARTED THE CASE RETIRED TOLD ME AND MY SON’S FATHER IF EITHER ONE OF U EVER GET BK ON DRUGS U WILL LOOSE ALL RIGHTS TO UR CHILD N NEVER SEE HIM AGAIN N NOW THERE IS A NEW JUDGE AND HE FROM WHAT I HEAR IS A JERK. I HAVE BEEN DOIN WONDERFUL AND DONE A COMPLETE 360 IN LIFE AND THIS COURT SYSTEM HERE IN CAMPBELL COUNTY KENTUCKY IS SO AGAINST ME I JUST DONT GET IT . I WILL CONTINUE TO FIGHT FOR MY SON AND WILL NEVER GIVE UP.

      Comment by DESIREE | February 28, 2012 | Reply

  3. I am currently a third party in a custody dispute here in Kentucky and have been caring for the child since he was 18 months old and now he is 6 yrs. Please forward all the information i can get on helping me with perment custody

    Comment by Stacy | February 8, 2011 | Reply

  4. I have a 2 year old granddaughter. My husband and I keep her most of th.e. time.She is our life.Her mother is a nympomaniac. She cannot get enough men.She is a heavy drinker as well as her dad.They are not married.The father is black. He has tried on several occasins,beaten her.The state police have been out multiple times.My daughter files a complaint for court only to have him back in her bed days later.She is impossible to talk to.She has different personalities(bipolar).My grandaughter is exposed to things that are not good for her.We support our baby in every possible way.For some time now,I have been trying to get something done.Within one week, there have been as many as 5 different men inthe home.I am crying out for help to no avail.I have contacted social services,childsupport offices .All I get is-“call the police”.If anyone should have de facto custody it should be us.I have even been denied an investigation.What is wrong with Eastern Ky?

    Comment by Ruby Ritchie | August 24, 2011 | Reply

  5. My husband and I have been the primary caregivers to an 11month old since she was 3 months old. We have provided everything this child needs or wants, including furniture, clothing ect. This precious baby girl has became our life. We have grown children of our own who support us 100% in fighting for this child. Her parents are useless to say the least. We have legal guardianship of her now and were in the process of filing all necessary paper work through our attorney for defacto custdian. Any information you could forward would be much appreciated. Thank you, Georgetown Ky

    Comment by Elizabeth Underwood | December 23, 2011 | Reply

    • Could u pls get in contact with me regarding your situation. I am in the same situation and would love some advice from you.

      Comment by Alibia | July 14, 2012 | Reply

  6. I REALLY NEED A LAWYER. I HAD LOST CUSTODY OF MY SON ABOUT 7 YRS AGO DUE TO SOME BAD CHOICES I HAD MADE N WENT DOWN THE WRONG ROAD IN MY PAST. I HAVE BEEN CLEAN OFF DRUGS FOR OVER 6 YRS AND MY SON’S DAD HAS JUST GOT OUT OF JAIL YET AGAIN FOR DRUG USE. AND IS NOW FIGHTING ME FOR CUSTODY YET AGAIN. WAS THERE A LAW PASSED IN KENTUCKY THAT IF U HAVE A CHILD HERE THAT U HAVE TO GET PERMISSION FROM THE COURTS TO MOVE OUT OF STATE. ME AND MY SON HAD MOVED TO FLORIDA IN JUNE OF 2011 MY SONS DAD WAS IN JAIL WHEN WE MOVED I HAVE MOVED ON WITH MY LIFE GETTIN MARRIED AND MOVED TO FLORIDA FOR A JOB . AND NOW 2 YRS MY SONS DAD HAS NOT BEEN AROUND THE COURTS HAVE ORDERED THAT I HAVE TO PULL MY SON OUT OF SCHHOL IN FLORIDA AND RETURN MY CHILD TO KY IN 3 DAYS. NOT TO MENTION MY SON’S DAD HAS NEVER BEEN APART OF HIS LIFE HIS WHOLE LIFE ONLY TO HARASS ME AND MY SON AND HURT MY CHILD. ON 12-23-2011 MY SON DAD ASKED FOR MY ADDRESS SO HE COULD SEND MY SON A CHRISTMAS GIFT ON JUNE 3 2012 SOCIAL SERVICES IN FLORIDA SHOWED UP TO MY DOOR. THE LAST TIME MY SON WAS WITH HIS DAD 2 YRS AGO HE MADE MY SON STAY WITH HIM IN A ATTIC WHY HE SLEPT ALL DAY N WOULD NOT FEED MY SON MY SON DID NOT EAT TILL 9 PM THAT EVENING .. THAT MONDAY MY SON’S FATHER WAS ARRESTED MY HIS PROBATION OFFICER FOR TESTING POSITIVE FOR CRACK COCAINE.. IF THERE IS A ATTORNEY OUT THERE I NEED YOU HELP PLZ.

    Comment by DESIREE MCFADDEN | February 28, 2012 | Reply

  7. I HAVE GOT A GOOD REPORT WITH SOCIAL SERVICES IN FLORIDA. MY SON’S GUARDIAN AD LIDIAM IS NOT DOING HER JOB . I NEED LEGAL ADVISE. THE ATTORNEY I HAVE NOW I HAD ASKED HIM BEFORE I MOVED TO FILE STUFF WITH THE COURTS IN CAMPBELL COUNTY SO THAT I COULD GET FULL CUSTODY BACK AND HE SAID THE LONGER YOUR SON’S FATHER IS OUT OF HIS LIFE THE WORSE OFF ITS GONNA BE ON HIM. I WANTED THE COURTS TO KNOW THAT MY SON’S FATHER WAS BACK IN JAIL YET AGAIN AND TO MAKE SURE IT WAS OK FOR ME AND MY SON TO MOVE TO FLORIDA I WAS ADVISED THAT IT WAS OK TO MOVE OUT OF STATE WITH MY SON AND THERE WAS NOTHING THAT THEY COULD DO TO ME . MY SON HAS TOLD HIS GUARDIAN AD LIDAM WHERE HE WANTS TO LIVE AND WHAT HIS DAD HAS DONE TO HIM AND THIS WOMAN IS NOT LISTENING TO MY CHILD AND NOT LOOKIN OUT FOR THE BEST INTREST OF MY CHILD. COULD SOMEONE PLEASE HELP ME AND MY SON . WE NEED SOMEONE THAT IS GONNA TAKE THE TIME OUT TO LISTEN TO US AND HAVE THE COURTS LOOK OUT FOR THE BEST INTREST OF MY SON . I HAVE A FILE FULL OF PROOF ON HOW GOOD MY SON IS DOIN IN SCHOOL A REPORT FROM CPS LETTERS FROM OUR CHURCH THAT WE ATTEND IN FLORIDA LETTERS FROM MY SON’S TEACHER IN FLORIDA .. PLEASE IF THERE IS A LAWYER OUT THERE READING THIS ME AND MY SON REALLY NEED HELP THANK YOU SO MUCH

    Comment by DESIREE | February 28, 2012 | Reply

  8. we are trying to get justice, we are involved in a homeless ministry in louisville, we met a homeless couple who were about to give birth so we did what we could to help them, the baby was born on February 19,2013 and we tried to find them a place to live with the baby, but we ended up moving them in our home on march 1,2013 they did not have the patience or desire to be parents,so my husband and I cared for the baby and paid for all her needs,formula,diapers,wipes,clothes , bottles, ,we took over as parents,but things got bad with the parents constant fighting, cursing, screaming ,not trying to find jobs,we were supporting them also,their behaviors were effecting my children and disruping our home,so we asked them to leave ,they found a shelter around March 25,and said they needed the baby to get in but they would call in a few days for us to come get the baby, and they did, we went and got her from the voa shelter, we would take her to them when they wanted a visit and they kept her two days and send her home this continued until they got kicked out of the shelter,around may 19,2013 they went back to living on the streets, the baby still remained with us on may 30,I had them write a statement saying the baby was in our temporary custody and care and they did, then I researched and all websites said it should be notarized so we printed off a temporary custody form and had it notarized, the parents would call and want visits and I would take her and pick her up in a few hours, then cps became involved on August 21, 2013 because of allegations on their visits and a cps investigator came to my house I explained everything to her showed her the temporary custody papers and she checked out my home and said she did background checks, she made a safety plan with me and said she didn’t know if her supervisor will want to take the case to court ,but if so she can’t reccomend our home but if it goes to court when we go before judge tell our story and she will tell him that she is ok with the baby remaining in our home,on August 30. I recieved a summons to appear in court listing me as person exercising custodial control or supervision ,set for September 3, when we got to court she came and talked to us and said she will tell the judge she approves our home,she went in the room and spoke to GAL and came back to us and said the GAL does not want to place the baby in your home and I am in there fighting for you guys ,I am going to go speak to her again,she then came back to us and said I’m sorry to have to ask you this but the GAL wants to know your ages,and I said that is irrelevant and my pastor told her are you serious right now, that is out of line, but we told her our ages,she came back out and said she said she will not place the baby back with you guys because of your age, she said the GAL said she is looking for long term placement and when the baby is 20 you would be 71 ,and I said that is ridiculous, if we were still a licensed foster home our age would have no bearing on placement, the cps worker said yes we would place children in your home and I tried to get the GAL to come out and meet you and see how youthful you guys are and let you tell the story but she flat refused to meet you,she will not place her with you . when the case was called we went to the court room door and we were refused in the court even though we had a summons and we had physical custody of the baby. when the case was over the caseworker came out and said the judge ordered the baby to fosterhome even though the parents stated to everyone they want the baby to remain in our home,even with us being person exercising custodial control, de facto custodians, persons acting as parent,the cps worker went to the courtroom door with us trying to go see the judge so we could plea our case but the sherrif refused us again and the worker told him they have a right to talk to the judge and tell him their story but he hollered at us and said the judge dont want to talk to them so get out of here, we then went to cps office trying to talk to supervisors to help, she said she would try but they have to take baby,and they did, then we hired attorney and filed motion to intervene but was denied stating we were non party to case,but we were the ones who raised the baby for 61/2 months and had papers signed by parents and parents continued to tell them to put baby back in our home, our attorney then asked parents to sign an agreed order of custody,waiving their superior rights to custody and it was filed in circuit court on September 18, on September 19, the baby was returned to us because judge granted permanent custody to us, then on September 24, the judge set it aside because GAL said she was not notified,even though she filed no legal motion,the baby was removed again, the judge said he would leave it up to cps to decide if we were de facto custodians,if so they would have to consider us pecc and amend their petition to include us, we filed new motion to reinstate custody order and immediate return the judge overruled the motion and set a date for pretrial hearing,October 25 we had hearing we produced evidence all that proved we were de facto custodians, pecc, persons acting as parent, but the judge left it that we are still waiting on cps to respond to motion ,he left it open no court date no trial date nothing,two weeks later they responded and judge denied motion, said we are a long way from trial, we are supposed to have a trial someday, we filed motion to remove GAL from custody case, then GAL responded to motion as well as cps, at this point we had to fire attorney because he charged us 16,000.00 and did not file the proper motions defend us properly,we took out a loan to hire him and put ourself in debt, and used all our loan money paying him and cannot afford to hire another attorney or finish paying him,but we know there has to be justice somewhere,the whole point is is that there was no legal basis for them to have removed the baby from our home, pecc states that a pecc is any person who assumed the role or responsibility of a parent or guardian for the child but that does not necessarily have legal custody of the child, since the parents were charged with abuse/neglect and the child was not living with them because they had placed her with us since she was born and the statue says you dont have to have legal custody to be pecc,which even the initial investigator found us to be pecc, 1) how could they remove her from our home with no allegations against us,and we had her from birth by the parents when the law says that a parents has a right to give their child to anyone they choose,2) our constitutional rights to due process of law was violated and we were discriminated against from the start. I am trying to prove that what they did at the removal hearing was illegal in several ways, the law says that at a removal hearing all persons recieving a summons must appear before the judge and defend their rights to keep custody of child, it says that cps must prove with a proponderence of the evidence that the child would be in danger if left in the home of parent or person exercising custodial control,if they cannot the child must remain or be placed back in the home. This did not occur, they did not even acknowledge that the baby lived with us or that we were there to defend our rights even though we had proof, parents stating this fact, the great aunt statement other letters stating the fact, the custody papers the summons, the safety plan, the law was broken, also the law says that cps must try everything they can to keep removal from taking place,and if they dont there will not be funding for that child. not only were we pecc,but we could also prove with the same evidence that we were de facto custodians,also krs 403.800 states person acting as parent is a person other than a parent,who(a) had physical custody for a period of six consecutive months,including any temporary absence,within one year immediately before the commencement of a child custody proceeding ;and (b) has been awarded legal custody by a court or claims a right to legal custody under the law of this state..
    We dont know what direction to go in because we are forced now to fight this without legal representation because we are broke and have other children we are responsible for, we just want the law to be followed and dont know how to get that done,the baby should have never been removed from our home, they had no legal right or grounds to remove her, we have been her only family ,her only stability,the bond we have was strong and we miss her badly, they have now moved her to the great aunt and tuesday cps is giving up their temporary custody to her, this is the same great aunt that has been fighting to help us get her back,she has known from the babys birth that she lived with us and I have texts and voice recording of her stating that her and the fathers family are behind us and they consider her our daughter and a few months back stated which I have recorded that she works long hours and can not take care of her and her parents our in their 80’s and it would be to much on them, and she told us for the last two months if cps places the baby with her,she is going to turn around and give her back to us and now, she changed her mind, after 61/2 months of us raising her and she only saw her a few times, went to court with us every time and watched us go in debt to fight for the baby, she now wants to pretend she cares and the first thing she says is that she is going to get every program she can get. where is the justice in this. where is our justice, we were not given the right to be heard or to intervene in the temporary removal hearing, and the parents had signed an agreed order of custody waiving their superior rights to custody to my husband and myself,even if cps had temporary custody (illegally) the parents rights were only reduced not terminated they still had legal right to give us permanent custody in circuit court.according to chfs handbook for grandparents and other caregivers . We are asking for someone to help us or guide us , our hearts will not let us quit we love this baby and want to fight for our legal rights we have only seen her twice since September 24, even though the parents case plan says we were to have visits with the baby, please if you cant help us guide us to someone that can, we have no more money to pay but pray that someone will want to help us fight this for the justice ,also we plan to file lawsuits for the descrimination and all the wrong that has been done

    Sincerly,
    Paula and Robert Jones

    Comment by paula jones | November 25, 2013 | Reply

  9. Grandparents have raised child for several years. No custody agreement was set between biological parents. Biological mother signs de facto custodian to grandparents. Father is in good standing, has a realtionship with the child, has a home, and income. Grandparents (de facto custodians) have petitioned the court for full custody, knowing the father wants to transition the child to his home. The father seeks to slowly transition the child to his home, to not traumatize her. Grandparents do not want biological father to have child and uses the excuse that the child does not want to see him. The child is six years old. Advice.

    Comment by Brandy | January 13, 2017 | Reply


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