I am glad to announce that Matthew D. Henderson will be joining Troutman & Napier, PLLC as an associate attorney. Matthew comes to us from the Fayette County Attorney’s office. Prior to that, he served as Judge Philpot’s judicial intern in Fayette Family Court. He will be bringing tremendous skills and knowledge in areas of criminal law and family law as well as estate planning and general litigation. With the addition of Matthew, Troutman & Napier, PLLC offers a full range of services and practice areas for our clients.
Adoption can be an expensive proposition and I have been asked on occasion if a person can do their adoption pro se (on their own and without a lawyer). Actually, this question tends to come up in family law matters in general far more than in other areas of law. I hear this question about self-representation even less often in bankruptcy where folks clearly are in dire straits financially. My response is typically yes, you can but . . .. Then I relate to them a show I saw on Discovery or TLC about a man who was out hiking and became trapped when a boulder rolled onto his arm. He would have died out in this ravine had he not amputated his own arm with a pocket knife (the tv show assured me this was a true story). Anyway, in this graphic and slightly grotesque story the man did what he had to do to survive, but it had to be exceedingly painful and extremely messy. Representing oneself in a family law matter can be just like that: exceedingly painful and extremely messy.
That answer seems to ring intuitively true for people in divorce situations, but many assume that since an adoption is a happy occasion and that judges love putting families together rather than tearing them apart, that one could handle it without a lawyer. The contrary is actually true. In the recent Kentucky Court of Appeals decision R.M. v. R.B., 2008-CA-001099-ME, (2009, to be published), the Court reminds us that “[b]ecause adoption is a statutory right, Kentucky Courts require strict compliance with the statutory procedures to protect the rights of natural parents.” The statutory framework for adoption contained in KRS 199 has many “if, then” kinds of provisions requiring careful navigation even by seasoned adoption attorneys. Because of this strict compliance requirment, adoption is the least likely area of family law where one should proceed pro se. At the very least, consult with an attorney that is knowledgeable in adoptions to see if there are any “boulders” in your particulare situation that need to be dealt with.
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.
I have come across situations recently where parents were surprised by legal stances the grandparents (their own parents) took regarding their children. In one situation, a young parent went to college to make a better life and was not at a point where he/she embraced the obligations of parenthood. The parent and grandparents agreed that her young child would stay with the grandparents for extended periods of time with the understanding that the child would return to the parent once school was completed. Another situation involved grandparents, who had liberal visits with the grandchild, threatening litigation to ge more visits when the child was grounded for a time.
Common to both situations was the shock by the parents over the standing they discovered the grandparents had to solidify their position in the child’s life legally. This information is not intended to take the side of parents or of grandparents, but simply to educate people about unintended consequences of decisions they make regarding their children and grandchildren.
Kentucky, and many other states now have provisions for establishing a de facto custodian standing by persons, often grandparents, who provide extended care for a child. The exact criteria for Kentucky can be found in KRS 403.270. Basically, if a person other than a parent is the primary care provider and financial supporter of a child for a certain amount of time, courts are to give them equal consideration as the parent in custody determinations. There are more complicated aspects to this law and it interacts with other custody laws, but the basic idea is that if a parent leaves a child in the care of a grandparent (or other person) for six months (children under 3 years of age) or a year (children 3 or older), then that care provider may gain rights to that child that equal that of the parent. It is unlikely that even written agreements to the contrary would alter that standing, and verbal agreements certainly would not prevent this legal standing from coming into being.
Similarly, Kentucky and many states have statutes that appear to grant visitation rights to grandparents. In Kentucky, the statute is KRS 405.021. This law turns out to be weaker than the de facto custody law because of U.S. Constitutional concerns so it is less likely that a grandparent could get a court to force visitation with a grandchild over the reasoned objection of the parents. However, it does open the door to grandparents filing suit in court which can be an expensive and conflict ridden experience.
For parents contemplating using someone, like a grandparent, for extended child care, you should consult with a family law attorney regarding the specifics and the risks involved. For grandparents who are care providers and concerned about losing that status and the wellbeing of your charge, consult a family law attorney with the specifics to see what standing you may have. Although potential legal actions exist, it is best to work out visits between grandchildren and grandparents with reasonableness and the interests of the child in mind.
I was recently asked by a reader about what kind of time-sharing he can expect with his daughter. He and the mother never married and he believes the mother is exerting excess control over his contact. I am uploading the Fayette County time-share guidelines as an example of typical time-sharing. If you open it and go to the end, you will see enhanced time-share for children under two years of age. This is a tiny step towards developmentally sensitive time-sharing. I am a proponent of developmental time-sharing and I hope to see these standard guidelines continue to move in that direction.
It is interesting to note, KRS 405.020 assigns joint custody to parents of a child as the default. A father of a child born out of wedlock starts out with joint custody as a matter of law. Mother’s tend to assume they have sole custody straight from the chute since they effectively have it during the pregnancy. In reality, the father gains custody at the moment of birth. As a practical matter, though, he must be able to show he is the father. This is either by birth certificate naming him as the father or a judgment.
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