Elizabeth Shelton v. Kayla Starnes

• Court: Court of Appeals of Kentucky
• Decided: June 6, 2024
• Docket: 2023 CA 000786
• Status: Unknown

Opinion

RENDERED: JUNE 7, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-0786-MR

ELIZABETH SHELTON APPELLANT

APPEAL FROM MCCRACKEN FAMILY COURT v. HONORABLE DEANNA WISE HENSCHEL, JUDGE ACTION NO. 22-CI-00177

KAYLA STARNES AND TIMOTHY KEITH APPELLEES

OPINION REVERSING

** ** ** ** **

BEFORE: ECKERLE, KAREM, AND LAMBERT, JUDGES.

KAREM, JUDGE: Elizabeth Shelton appeals from a McCracken Family Court

order denying her petition seeking de facto custodian status and custody of Kayla

Starnes’s minor child. Upon careful review, we reverse. FACTUAL AND PROCEDURAL BACKGROUND

Shelton and Starnes were best friends in high school and maintained a

close relationship thereafter. Shelton was present at the birth of Starnes’s son, P.K.

(“Child”) in 2016. Child’s natural father, Timothy Keith, was not involved in

Child’s upbringing. In 2019, Shelton provided babysitting for Child, every other

week or less. In March 2020, she began to look after him weekly from Friday

night through Monday afternoon. In 2021, these periods increased in length to four

to five days per week. Shelton provided food, clothing, and personal care for Child

during these periods, and he always had a room at her home. Shelton received no

financial support from Starnes and Starnes generally did not have contact with

Child while he was in Shelton’s care.

In May 2021, Shelton traveled with Child to Arkansas for three to

four days to visit her father, and in July 2021 she took Child to Cave City to

celebrate his birthday. Starnes did not accompany them on these trips. Shelton

also enrolled Child in rodeo activities.

In October 2021, Child injured his foot on a samurai sword at his

mother’s house. Starnes took him to school the next day, but the school later

telephoned for him to be picked up because the injury appeared serious. Shelton

picked him up and that evening took him to the emergency room, where he

required four stitches. His mother did not go to the emergency room. Shelton also

-2- went with Child to the orthopedic center where it was determined that he needed

surgery and she attended most of his appointments. Starnes was present for the

surgery and cast removal but did not go with Child to physiotherapy. Shelton and

Starnes went together to sign Child up for kindergarten and Shelton scheduled

Child’s back-to-school appointments. Shelton also attended his parent-teacher

conferences with Starnes.

The friendly relationship between Shelton and Starnes ceased at the

end of 2021, after Shelton opposed Starnes’s decision to start homeschooling

Child. Starnes stopped allowing Shelton to see Child and ultimately Shelton filed

a petition for de facto custodian status and custody on March 9, 2022.

The family court held an evidentiary hearing at which it heard

testimony from Shelton and Starnes, from Shelton’s best friend, from Shelton’s

mother, and from Starnes’s boyfriend. Child’s natural father did not attend or

participate in any way, but he filed an entry of appearance and waiver, stating he

did not dispute the statistical information in Shelton’s petition.

Shelton’s best friend testified that Shelton had looked after Child four

to six days per week, and she had witnessed no interaction with Mother at these

times. Shelton’s mother testified that Child was like her grandson, that Shelton

had been a constant in his life, and that Starnes provided no financial support to

Shelton. Starnes’s fiancé testified that he and Starnes currently reside with his

-3- mother and Child. Starnes has another child who resides primarily with his father.

Starnes sees her other son every other weekend.

Starnes testified that she was unable to attend some of Child’s medical

appointments because she was at work. The family court questioned her about

weekends when she was not working yet left the Child with Shelton. She

explained that she wanted to spend time with her then-boyfriend, but that he was

abusive, and she wanted to keep him away from Child. She testified that she

stopped contact with Shelton because Child was calling Shelton “Mom.” She

testified that she never paid Shelton to care for Child because Shelton had never

asked for money.

The family court found that during the three years preceding the

hearing, Shelton had moved from being a part-time caregiver to being a primary

caregiver and financial supporter. The family court recognized that Shelton

vacationed with Child, threw birthday parties for him, celebrated holidays with

him, and enrolled him in extracurricular activities. Nonetheless, the family court

determined that even though Shelton provided very generous contributions of

childcare and financial support, Starnes remained substantially and consistently

involved with Child’s life and did not cede or abdicate her unique parental

decision-making authority to Shelton. The family court noted, for instance, that

Starnes had to be present in order for Shelton to attend school conferences because

-4- Starnes refused to give her authority to attend alone. The family court ruled that

under our case law, which holds that even generous contributions of childcare and

financial support from a nonparent do not always confer de facto custodian status,

Shelton did not qualify as a de facto custodian and denied her motion. This appeal

by Shelton followed.

PRELIMINARY ISSUE

We first note that neither Starnes nor Keith filed an appellee brief. As

stated in Kentucky Rule of Appellate Procedure (“RAP”) 31(H)(3): if the

appellee’s brief has not been filed within the time allowed, the court may (i) accept

the appellant’s statement of the facts and issues as correct; (ii) reverse the

judgment if the appellant’s brief reasonably appears to sustain such action; or (iii)

regard the appellee’s failure as a confession of error and reverse the judgment

without considering the merits of the case. “The decision as to how to proceed in

imposing such penalties is a matter committed to our discretion. Kupper v.

Kentucky Bd. of Pharmacy, 666 S.W.2d 729, 730 (Ky. 1983); Flag Drilling Co.,

Inc. v. Erco, Inc., 156 S.W.3d 762, 766 (Ky. App. 2005).” Roberts v. Bucci, 218

S.W.3d 395, 396 (Ky. App. 2007). In the case sub judice, we choose to accept the

appellant’s statement of facts and issues as correct.

-5- 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).

“Second, we examine the trial court’s application of the law de novo.” Id. at 464.

THE STATUTORY FRAMEWORK

To be placed on the same legal footing as a natural parent in child

custody proceedings, a person must qualify as a “de facto custodian,” which is

defined in Kentucky Revised Statutes (KRS) 403.270(1) 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.

KRS 403.270(1)(a).

-6- 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 high, because

“[t]he courts of this Commonwealth have consistently recognized the superior right

of natural parents to the care, custody, and control of 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). “[O]ne must literally stand in the place of the

natural parent to qualify as a de facto custodian.” Id. (internal quotation marks and

citation omitted).

ANALYSIS

We agree with the court’s assessment of the nature of Shelton’s

relationship with Child as it relates to the time requirements set out in KRS

403.270(1)(a). Clearly, Shelton was the primary caregiver and supporter of Child

for an aggregate period of one year or more. Curiously, Shelton does not dispute

-7- the family court’s finding that she co-parented with Starnes but argues she should

not be prevented from being a de facto custodian solely on that basis. Specifically,

she contends that a recent amendment of KRS 403.270(1) supports a different

approach to evaluating de facto custodial status.

Prior to the amendment, which became effective in 2021, KRS

403.270(1)(a) defined a de facto custodian in pertinent part 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 has resided with the person for a period

of six (6) months or more if the child is under three (3) years of age and for a

period of one (1) year or more if the child is three (3) years of age or older[.]” In

Meinders v. Middleton, 572 S.W.3d 52 (Ky. 2019), the Kentucky Supreme Court

construed that version of the statute to mean that “the period of time required to

qualify for de facto custodian status under KRS 403.270 must be one continuous

period of time[,]” rejecting the appellant’s argument that individual periods of

caregiving could be aggregated to achieve the total. Meinders, 572 S.W.3d at 57.

Then Chief Justice Minton, joined by Justice VanMeter, wrote an opinion

concurring in result only, stating in part as follows:

I am unconvinced by the majority’s assertion that “allow[ing] a claimant to aggregate periods of time would undermine the purpose of the statute” because “allow[ing] a third party to aggregate periods of time to add up to six months . . . would drastically lower the burden of proof” for those seeking de facto custodian

-8- status and infringe on a parent’s constitutional right to raise his or her own child. At bottom, there is no difference between a child residing with another individual for a total or continuous period of six months before the child even turns three – in both situations the child has resided with another individual for six months.

In fact, I would argue that the majority’s interpretation undermines the statute because it actually creates an absurd result. Under the majority’s interpretation, a deadbeat parent who has dumped his or her two-year-old child off on a loving caregiver could show up once every five months to comply with parental duties for a week, only to return the child in the care of that caregiver for another five months, thus preventing the loving caregiver from attaining de facto custodian status to seek, on equal footing with the parent, custody of the child. It would seem absurd to think that in that scenario, where the child has technically resided with that caregiver for almost the entirety of his or her life, the General Assembly would not have intended to bestow de facto custodian status on that loving caregiver, yet bestow de facto custodian status on an individual who has had a child reside with him or her for one, continuous period of six months that is actually less than half the amount of time the child resided with the previously- mentioned caregiver.

Id. at 63-64 (Minton, C.J., concurring in result only) (footnote omitted).

As further support for this view, the Chief Justice cited an opinion of

the Indiana Court of Appeals which interpreted a virtually identical Indiana statute

to allow for “the combining of time periods to satisfy the residency prong.” Id. at

63 (citing A.J.L. v. D.A.L., 912 N.E.2d 866, 870-71 (Ind. Ct. App. 2009)).

-9- The Kentucky statute was subsequently amended to permit the

aggregation of periods of time.

Shelton argues that she met her burden of proof because the

aggregated periods of her weekly caregiving amount to more than one year, in

compliance with the amended statute, and that the family court’s ruling goes

against the spirit of the amended law. She contends that preventing a party from

establishing de facto custodian status solely due to the existence of co-parenting

activity prevents non-parents from engaging in potentially beneficial

communication with biological parents and creates a situation where non-parents

have no legal recourse. She cautions that affirming the family court’s decision

would allow parents who have acquiesced in allowing their children to be raised by

a non-parent for most of the time to retain the unilateral authority to end the non-

parents’ relationship with the children. While her arguments are compelling, we

need not stray beyond the basic review of the facts to the applicable law to make

our determination that Shelton is entitled to the status of de facto custodian.

The family court did not dispute that the periods Child spent in

Shelton’s care could be aggregated to a total of one year as required under KRS

403.270(1) and we agree. However, in order to be a de facto custodian, the

nonparent must not simply be a primary caregiver, but must, in fact, be the primary

caregiver. “Thus, our law is clear that even if a nonparent provides care and/or

-10- financial support for a child, if such is in conjunction with a natural parent, the

nonparent will not qualify as a de facto custodian.” Burgess v. Chase, 629 S.W.3d

826, 833 (Ky. App. 2021) (citing Consalvi v. Cawood, 63 S.W.3d 195, 197-98

(Ky. App. 2001) and Boone v. Ballinger, 228 S.W.3d 1 (Ky. App. 2007)). In the

case at bar, the court erroneously concluded that Starnes had not relinquished

complete control of Child to Shelton when Child was in her care although the facts

clearly support such a conclusion.

The court recognized Shelton was not only primary caretaker but a

financial supporter as well. She vacationed with Child, threw birthday parties for

Child, celebrated holidays with him, and sought emergency medical treatment and

follow-up care for Child when Starnes arguably ignored his serious injury.

Notably, Starnes chose to spend weekends with a boyfriend, whom she

acknowledged was abusive, rather than spend time with Child. We do not take

exception to the court’s findings of facts. However, the court misapplied these

facts to the law; and we conclude that Starnes did in fact relinquish her superior

rights to Shelton thus providing the basis for Shelton to be declared de facto

custodian.

Therefore, the family court’s decision that Shelton was precluded

from achieving de facto custodial status because Starnes had not abdicated control

-11- over critical aspects of the Child’s life is set aside. The case is remanded back to

the family court for findings consistent with this Opinion.

CONCLUSION

For the foregoing reasons, the family court’s order denying Shelton’s

petition is reversed.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.

Caleb M. Nelson Paducah, Kentucky

-12-