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.

September 1, 2008 Posted by | child custody, Custody, Family Law, Guardianship | , , , , , | 11 Comments

Grandparents’ rights: custody and visitation

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.

July 21, 2008 Posted by | child custody, Family Law, Parenting | , , , , , | 54 Comments

Time-sharing guidelines


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.

May 14, 2008 Posted by | child custody, Family Law, Parenting, Paternity | , , , | 2 Comments

Paternity Pandemonium

A recent Kentucky Supreme Court (SCOKY) case has created quite a stir in the webdom. In J.N.R. & J.S.R. v O’Reilly, 2007-SC-000175-MR (April 24, 2008)(to be published), SCOKY rebuked a man’s attempt to establish that he was the biological father of a child born in the marriage of the appellants. Apparently everyone is this case has a first name starting with J and a last name beginning with R, so this might get a little confusing. Here is the scorecard: JGR is the man trying to establish that he is the biological father and obtain a custody status, JAR is the child in the center of the contest, JNR is the mother/wife, and JSR is the legal father/husband.

JNR and JSR are married when JAR is born giving rise to the presumption that JSR is the father of JAR. JGR apparently engaged JNR in an extra-marital affair and believed he was the biological father of JAR. JGR apparently had DNA evidence that proved him to be the bio-dad and he had even had some visits with JAR. Despite the injury to the marriage, there was apparently some mighty powerful affection remaining and so JNR and JSR wanted to make a go of it and did not want JGR interfering. JGR, displaying persistence that would be admirable in other circumstances, filed a petition in Jefferson Family Court to establish paternity, custody and support. The family court allowed the action to proceed and also ordered some time-sharing. JNR and JSR filed a Writ of Prohibition with the Kentucky Court of Appeals (COA) and then with SCOKY when the COA failed to issue the writ.

A Writ of Prohibition is an action that can be taken when a lower court is about to do something that they really have no business doing (lack the legal authority to do) OR will cause irreparable harm to one or more of the parties if they are allowed to do it anyway. In this case, if JGR was allowed to establish a psychological bond with baby JAR, who was 3 months old, then there would be no way to undo it without additional harm to JAR. If JGR was allowed to establish paternity, then arguably, irreparable damage would be done to the marriage. The COA refused to issue the writ to stop the paternity proceeding because JNR and JSR failed to show irreparable harm to the marriage, but they did stop the visits. JNR and JSR then took their Writ to SCOKY who granted it and stopped everything.

JNR and JSR had a pretty smart lawyer who argued that the Family Court was acting OUTSIDE its authority and thus no irreparable harm showing was necessary. The reason that SCOKY gave for issuing the Writ of Prohibition on the paternity action was that the Family Court lacked subject matter jurisdiction to hear the case. In other words, SCOKY agreed that the Family Court was acting outside its authority. This is significant because the decision, arguably, stands on statute alone and not on potentially shifting public policy. So, the Kentucky legislature would have to pass new legislation granting family courts jurisdiction in such a situation (unless a challenge to the existing statutes’ constitutionality is brought and won which is doubtful). The decision also suggests that even if the mother had initiated the action, the legal father/husband (or vice versa) could stop the matter from ever being heard unless they could establish that the marital relationship had ended (at least show no sex) ten months prior.

The case itself provides a more in-depth analysis of the statutes in play, but for our purposes, the whole thing turns on the use of the phrase “born out of wedlock” in the jurisdictional statute KRS 406.051. A child born to a married woman can be “born out of wedlock”, but only with a showing that the marital relationship ceased to exist ten (10) months prior to birth of the child. JGR failed to make a showing that JAR was born out of wedlock. Kentucky’s KRS 406.051 does differ from the 1960 Uniform Act on Paternity by narrowing the definition. This evidences the public policy espoused by the General Assembly for the protection of the marriage over those of the contributor of chromosomes. This public policy has shown signs of shifting in recent years coinciding with the more accurate DNA testing as compared to simple blood typing from decades ago.

SCOKY also rejected the argument that subject matter jurisdiction could arise fromt he KRS 403 chapter governing the dissolution of marriage and child custody. The bottom line is that producing a child with a married woman gives a poor prognosis for establishing paternity and is an inadvisable course of action in any circumstance.

April 28, 2008 Posted by | Family Law, Parenting, Paternity | , , , , , , | 6 Comments

The trial court is no democracy

A recent decision by the Kentucky Court of Appeals, Hoppe v. Tallent, 2007-CA-00104-MR (March 7, 2008)(to be published), highlights the deference given to trial judges in family law cases. A solid review of this case can be found here at the Divorce Law Journal. Very briefly, Hoppe was denied visitation with the daughter he had with Tallent due to allegations made that he sexually abused her.

Six mental health professionals had been involved with the case over the span of years, but only the final therapist recommended no visitation. All the other mental health professionals recommended some level of visitation. Despite the professionals being 5 to 1 in favor of visitation, the trial court denied any form of visitation for Hoppe with K.H. The Court of Appeals upheld the trial judges decision because great deference is given to the “trier of fact”. This is based on the notion that the trier of fact is in the best position to ascertain the credibility of witnesses (a notion that may be a bit antiquated with video taping of trials). So, the denial of Hoppe’s visitation remained in place.

The real lesson in this case, though, lies in what the Court of Appeals signaled in its commentary. They expressed concern that the child had been coached by her mother to make up the allegations (an element in what some experts call “parental alienation syndrome”) and noted that no criminal charges had been pursued against Hoppe. The also highlighted that the first 5 mental health practitioners said visits should occur and speculated that the trial court went with Sutton, the one therapist to advocate no visits, merely because she was the last one to see the child even though she “stumbled mightily when queried about her education and may have counseled only a handful of children during her six years in private practice . . . .” Id. at 16. Lastly they came as close as they could to encouraging Hoppe to obtain new psychological evaluations of the child (and presumably the parents) and file a new motion to re-start visits. So, the real lesson is to go into highly contentious custody and visitation battles as prepared as possible.

This kind of preparation, obtaining current expert witnesses and evaluations, can be very expensive on the front-end. Perhaps in Hoppe’s situation, the cost of such experts was prohibitive. However, because it is unlikely to get a trial judge’s decision overturned in these sorts of matters, it is better to incur those expenses, if one is able, at the trial level instead of on an appeal.

March 16, 2008 Posted by | Family Law, Parenting, Visitation/Time sharing | , , , , , , , | Leave a comment