RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-1289-MR
DUSTIN ESTERLEY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE DENISE BROWN, JUDGE ACTION NO. 24-CI-503494
KATELYN MARIE RAY AND KENNETH DARNELL ENGLISH, III APPELLEES
OPINION
AFFIRMING
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BEFORE: CALDWELL, L. JONES, AND KAREM, JUDGES. KAREM, JUDGE: Dustin Leigh Esterley appeals from a Jefferson Family Court order dismissing his petition for de facto custodian status and joint custody of a minor child. Upon careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND Esterley and Katelyn Marie Ray (“Mother”) have one child together, a daughter, who was born in 2011 (“Daughter”). They have not lived together since the birth of Daughter. Esterley has sole custody of Daughter, and she is not the subject of the present appeal.
In 2015, Mother had a child, K.L.R. (“Son”), with Kenneth Darnell English, III (“Father”). Son lived with Mother and Father for the first one to two years of his life. Esterley began babysitting Son during this period. Mother and Father separated in 2017, due in part to Father’s substance abuse problems.
After the separation of his biological parents, Son began spending more time at Esterley’s residence, usually with Daughter, his half-sister. According to Esterley, Son spent approximately 75 percent of the time at his house, whereas Mother claimed he spent 60 to 70 percent of his overnights with her.
It is undisputed that Esterley is more financially secure than Mother.
Esterley paid for Son’s preschool tuition, and thereafter his tuition at the private school also attended by Daughter. Esterley paid for a private educational evaluation for Son when he was having difficulty reading. He also paid for Son’s extracurricular activities, including baseball, football, basketball, and soccer. Esterley made occasional financial payments to Mother to help her meet the needs
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of Son when he stayed with her, and he also paid her for cleaning services she provided.
Son participated in holidays and birthday celebrations with Esterley’s family. Esterley took Son to school, to medical appointments, and attended parent- teacher conferences. Mother allowed Esterley to be listed as Son’s father on school documents. In 2022, Mother changed Son’s last name to her own and changed his middle name to Leigh, which is Esterley’s middle name. In her will, Mother named Esterley as the guardian of her children in the event of her death.
Father’s presence in Son’s life has been sporadic, although he has been paying child support to Mother since October 2017. Father testified that he had consistent parenting time with Son following his separation from Mother, but limited time from August 2018 to December 2024. He testified that Mother withheld Son from him, and that he was afraid to contact Esterley about arranging parenting time with Son, due to past threatening behavior. Son maintained contact with members of Father’s family, who were invited to holiday events and birthday parties by Esterley and Mother.
This arrangement continued until 2024, when Esterley and Mother disagreed over which of them would claim Son as a dependent for income tax purposes. Esterley had been doing so until that time. Mother began keeping Son
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for more of the time. Son’s last overnight stay at Esterley’s home was on October 26, 2024.
On December 10, 2024, Esterley filed a petition against Mother and Father, seeking joint custody of Son as a de facto custodian. Mother did not file a response to the petition. Father, who has been in recovery for substance abuse disorder since June 2024, filed a response denying that Esterley is a de facto custodian.
Following a lengthy hearing at which the family court heard testimony from Esterley, Mother, and Father, as well as Esterley’s live-in girlfriend, Mother’s live-in boyfriend, and the boyfriend’s mother, the court found that in the two years preceding the filing of the petition, Esterley and Mother had co-parented Son together by agreement, providing caregiving and financial support. The court described the arrangement as resulting from the close bond between Son and Daughter, as well as the historic bond between Esterley and Son. The court found that Esterley provided voluntary financial support for Son so he could share experiences with Daughter and attend the same school. It concluded that Esterley had failed to prove by clear and convincing evidence that he had attained de facto custodian status, and it dismissed the petition. This appeal by Esterley followed.
Neither of the child’s biological parents has filed a brief. Under these circumstances, this Court may: “(a) accept the appellant’s statement of the facts
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and issues as correct; (b) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (c) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.” Kentucky Rule of Appellate Procedure (RAP) 31(H)(3). “The decision as to how to proceed in imposing such penalties is a matter committed to our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). In this case, we have chosen not to adopt any of these options.
STANDARD OF REVIEW
“A custody determination is a mixed question of fact and law requiring a two-tier analysis.” Ball v. Tatum, 373 S.W.3d 458, 463 (Ky. App. 2012). “First, we review a trial court’s factual findings, disturbing them only if they are clearly erroneous – meaning they are unsupported by substantial evidence which is defined as that which is sufficient to induce conviction in the mind of a reasonable person.” Id. at 463-64 (internal quotation marks and citation omitted). “Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
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2003) (internal quotation marks and citations omitted). “Second, we examine the trial court’s application of the law de novo.” Ball, 373 S.W. 3d at 464.
THE STATUTORY FRAMEWORK
To be placed on the same legal footing as a biological parent in child custody proceedings, a person must qualify as a “de facto custodian,” which is defined as:
[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who within the last two (2)
years has resided with the person for an aggregate period of six (6) months or more if the child is under three (3)
years of age and for an aggregate period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. 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.
Kentucky Revised Statute (KRS) 403.270(1)(a).
Once a court “determines by clear and convincing evidence that the person meets the definition of de facto custodian . . . the court shall give the person the same standing in custody matters that is given to each parent under this section[.]” KRS 403.270(1)(b). The standard to achieve de facto custodian status is very rigorous, because “[t]he courts of this Commonwealth have consistently recognized the superior right of natural parents to the care, custody, and control of
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their children as well as the constitutionally protected right of a parent to raise his or her own child.” Brumfield v. Stinson, 368 S.W.3d 116, 118 (Ky. App. 2012) Therefore, “[b]efore the family court may find that a caregiver has become the ‘de facto custodian’ . . . the court must determine that the biological parent has abdicated the role of primary caregiver and financial supporter of the child for the required period of time.” Id. (citations omitted).
ANALYSIS
Esterley acknowledges that simply parenting a child alongside the biological parent does not meet the de facto custodian standard in KRS 403.270(1), and that to qualify as a de facto custodian, an individual must “literally stand in the place of the natural parent.” Mullins v. Picklesimer, 317 S.W.3d 569, 574 (Ky. 2010), as modified on denial of reh’g (Aug. 26, 2010). He alleges that the family court applied this principle in a “ham-handed” fashion, by erroneously assuming that a non-parent cannot be a “primary caregiver” for purposes of KRS 403.270 if a natural parent is also present and involved to any extent whatsoever. He contends that our precedent has clearly established that attaining the status of “primary caregiver” does not require the total absence of the biological parent, and that the family court mistakenly conflated “primary” with “exclusive.” He relies on Ball v. Tatum, in which the Court rejected the argument of a mother that the grandparents of her child could not qualify as de facto custodians “because they had not been the
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child’s exclusive caregivers and financial supporters for one year as required by KRS 403.270.” Ball, 373 S.W.3d at 460. The Court noted that if the legislature had intended the standard to be exclusive care and financial support, “[i]t certainly could have chosen the phrases, ‘only caregiver,’ ‘sole caregiver’ or ‘exclusive caregiver,’ but it did not.” Id. at 463. In Ball, the grandparents sought custody because they feared that the child’s special needs were not being met by her mother. The child, who suffered from cerebral palsy and epileptic seizures, required daily medication, constant attention, and regular physical therapy sessions. The evidence established that mother and child lived with the grandparents rent-free for at least one year. During that time, the grandparents provided 95 percent of the child’s financial support, took the child to her physical therapy appointments 95 percent of the time, and administered her medication. The grandparents did not request or receive any financial reimbursement from the mother during this time. Although the mother did arrange for the child to receive $570 per month in Social Security benefits, none of that money was given to the grandparents.
The Court concluded that these facts clearly and convincingly established that the grandparents were the child’s primary caregivers and primary financial providers for one year at a minimum. The fact that the mother cared for
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the child occasionally did not negate their standing to petition for custody because “exclusive care and exclusive supervision” of the child is not required. Id. at 464.
By contrast, although Mother’s financial situation is less advantageous than Esterley’s, there is no allegation that she failed to provide for Son’s needs while he was in her care. The court acknowledged that Esterley’s voluntary financial contributions enabled Son to attend the same school as Daughter, with whom he has a close bond, and to share experiences with her. It also found that Mother continued to provide significant care and support for Son in conjunction with Esterley. Mother testified that she provided food, clothing, and housing for Son, purchased school supplies, and transported him to some games and practices. The family court noted Mother’s testimony that she allowed Esterley to claim Son as his dependent for tax purposes in 2021, 2022, and 2023, as her contribution towards the private school tuition. The family court had to weigh conflicting testimony about how much time Son spent with Esterley and with Mother. Esterley’s girlfriend testified that the parenting schedule was flexible prior to the start of the litigation, with Esterley and Daughter having significant input and Son generally following the lead of Daughter. Mother’s live-in boyfriend testified that the children determined the parenting schedule. He estimated that Son spent 60 to 70 percent of his overnights at Mother’s home. The mother of the live-in boyfriend testified that generally Son followed Daughter and
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that Esterley provided for Son because he was Daughter’s sibling. The court acknowledged Esterley’s testimony that Mother would go for weeks without seeing Son but also noted that Mother denied this allegation and that Esterley provided no documentation to prove his contention.
The family court concluded that Esterley’s role simply did not rise to that of primary caregiver for purposes of the statute. As we have already stated, “judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.” Moore, 110 S.W.3d at 354. “[E]ven if a nonparent provides care and/or financial support for a child, if such is in conjunction with a natural parent, the nonparent will not qualify as a de facto custodian.” Brumfield, 368 S.W.3d at 118. The family court applied the law correctly, and its conclusion that Esterley co-parented Son with Mother by providing care and financial support, but was not the primary caregiver, is supported by substantial evidence in the record and cannot be reversed on appeal.
Next, Esterley argues that the family court failed to consider whether he had standing to seek custody as “a person acting as a parent” under the Uniform Child Custody Jurisdiction and Enforcement Act, KRS 403.800-403.880 (“UCCJEA”). He contends that KRS 403.800(13) of the UCCJEA provides him with an independent basis for standing, apart from any de facto custodian determination.
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“Person acting as a parent” is defined as a person, other than a parent, who:
(a) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) 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[.]
KRS 403.800(13).
But a person acting as a parent under this definition is not placed on the same footing as a de facto custodian. Appleman v. Gebell, 706 S.W.3d 223, 227 (Ky. 2024). “[U]nlike de facto custodian status, a person acting as a parent does not gain equal standing to a biological parent.” Id. (citation omitted). “[T]he superior rights of a parent are not bestowed on a non-parent custodian, regardless of the custodian’s relationship to the child or the length of their custodial relationship.” Id. (citing Morton v. Tipton, 569 S.W.3d 388, 397 (Ky. 2019)).
Because Esterley does not meet the statutory definition of de facto custodian,
he must prove either of the following two exceptions to a parent’s superior right or entitlement to custody: (1) that the parent is shown by clear and convincing evidence to be an unfit custodian, or (2) that the parent has waived his or her superior right to custody by clear and convincing evidence.
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Id. (citation omitted).
“In a custody dispute between a non-parent and a parent, a court can only determine custody in accordance with the child’s best interest after these threshold requirements have been satisfied.” Id. (citation omitted).
Esterley argues that the family court failed to consider whether Son’s biological parents had waived their superior parental rights or whether they were unfit parents. Our review of the record shows these arguments are unpreserved. Esterley nonetheless argues that his affidavit supporting the motion for a hearing and the testimony offered at the hearing contained “the spirit” if not the letter of these arguments. We disagree. The family court’s order expressly states: “In his petition, Petitioner does not assert either natural parent waived their superior right to custody. Petitioner also does not assert that either natural parent is an unfit parent.” Esterley never cited waiver or unfitness as an alternative basis for custody or asked the court to make findings regarding waiver or unfitness. We have no arguments, no findings, and no conclusions regarding waiver or unfitness to review on appeal. “It is axiomatic that a theory of error cannot be raised for the first time on appeal, . . . and an appellant will not be permitted to feed one can of worms to the trial judge and another to the appellate court.” Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 831 (Ky. App. 2014) (internal quotation marks and citations omitted). As an appellate court, we are “without authority to review issues
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not raised in or decided by the trial court.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (internal quotation marks and citations omitted). Consequently, we cannot determine whether Mother and Father waived their superior rights based on the findings of the family court. Furthermore, because Esterley was provided with ample opportunity to argue waiver before the family court, we decline his request to remand the case for the family court to make further findings on this issue.
CONCLUSION
For the foregoing reasons, the order dismissing Esterley’s petition is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.
Ethan Chase Juliana H. Reczek Louisville, Kentucky