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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

Paternity Pandemonium II

I wanted to post a brief follow-up to Paternity Pandemonium. Mr. Rhoades wrote a comment to that post that I encourage everyone to look at. I also wanted to link to TIME online article “Despite DNA, Dad’s Paternity Denied” that was provided to me by a reader. The article does not quite get the nuances of the law correct, but it gives more of the history and highlights the two broad views of this issue.

One camp is the Biology is Paternity camp which, in its extreme, denies any meaning of marriage in regards to children born during the marriage. Here, if one donates DNA, then some legal right is deemed to have arisen out of a single moment despite violating something every culture recognizes and values – a marriage. Usually in our jurisprudence, one does not get the benefit or gain from doing something wrong. However, we have decriminalized adultery and seduction while also turning to no-fault divorces. So, those in this camp would argue, there was no “wrong” done here in the eyes of the law and the courts should not be moral arbiters of such sexual behavior. Besides, the argument proceeds, it is not about punishment or equity, it is about a new life and what is best for that child.

The other camp would be the Sanctity of Marriage camp which, in its extreme, denies a biological father any standing to be in his child’s life. Here, the argument focuses on the preservation of the marriage and the assumption is made that the ongoing presence of the biological father will destroy what is already tenuous. Some would argue that the child should never know his genetic origin because it would be harmful to know he or she is the product of an illicit affair only creating an insecure sense of his or her place in the family.

As a father, I know I would not want to be denied contact with a child I fathered. As a husband, I understand protecting my family from those outside. This is why the SCOKY decision ultimately rests on the wording of a statute. Those of that opinion pulled into the safe harbor of avoiding the appearance of judicial activism by focusing on the exact language of the relevant laws. By doing so, they essentially said, this is a matter to be decided by the people through their representatives in the Kentucky General Assembly. That is where this debate really belongs.

Mr. Rhoades plans to appeal to the U.S. Supreme Court, but I will be surprised if he wins. This is because the Kentucky decision is about subject matter jurisdiction and not about whether Mr. Rhoades is the biological father or not and the U.S. Supreme Court will most likely defer to the power of the State to determine such things. So, only the General Assembly can change the outcome for future Mr. Rhoades.

As for me, the one thing I am confident of is that our judicial system should not be morally mute and that there is basic right and wrong outside of the confines of our laws (there are varying degrees of judicial activism and I believe it should be constrained to areas where statutory laws are silent). I also tend toward the Sanctity of Marriage camp and believe that the marital union, which remains a spiritual union and not merely a civil matter in my mind, trumps biology. My hope for Mr. Rhoades is that he recognizes and atones for the damage he did by participating in an extramarital affair. My hope for baby JAR’s parents is that they are convicted that JAR’s interests are paramount and wrestle with whether denying him his biological father serves those interests best. I doubt that would be the wisest course of action, but the burden is upon them to arrive at the decision. I have these hopes because even though I believe that courts have moral authority where statutory law is silent, the most just results are often found outside the courtroom and they often come out of humility rather than force.

May 1, 2008 Posted by | Family Law, Parenting, Paternity | , , , , , , | 7 Comments