Hicks v. Halsey

402 S.W.3d 79, 2013 WL 2659860, 2013 Ky. App. LEXIS 90
CourtCourt of Appeals of Kentucky
DecidedJune 14, 2013
DocketNo. 2012-CA-001154-ME
StatusPublished
Cited by9 cases

This text of 402 S.W.3d 79 (Hicks v. Halsey) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. Halsey, 402 S.W.3d 79, 2013 WL 2659860, 2013 Ky. App. LEXIS 90 (Ky. Ct. App. 2013).

Opinion

OPINION

COMBS, Judge:

April Hicks appeals from the order of the Floyd Family Court that designated Jerri Halsey as the de facto custodian of Hicks’s child and awarded Halsey sole custody. After our review, we affirm in part, vacate in part, and remand.

Hicks’s child (Child) was born on September 25, 2008. In December 2009, Hicks and Child moved in with Halsey, who is Hicks’s sister. On February 13, 2010, Hicks went to Tennessee to meet a man with whom she had become acquainted on the internet. Before leaving, she signed a notarized document which authorized Halsey and Halsey’s ex-husband to seek medical treatment for Child if needed. Both Hicks and Halsey testified that Hicks planned to retrieve Child at some undetermined point in the future. However, Halsey testified that in the meantime, she needed to place Child in daycare and that she was unable to do so -without official guardianship of Child. Halsey also recognized that Child exhibited developmental delays and needed help. Child was eligible to be enrolled in the First Steps program, but again, the involvement of an official guardian was required.

Therefore, Halsey filed a petition for guardianship of Child in Floyd District Court on February 19, 2010. On the same day, upon advice of the county attorney, Halsey also filed criminal charges against Hicks for child abandonment. Meanwhile, after a brief stay in Tennessee, Hicks apparently moved to Alabama without explanation for a period of time. Halsey did not have any means of contacting her. Hicks did not send money to Halsey for Child’s expenses; it is disputed as to whether Hicks tried to contact Halsey by telephone.

However, it is undisputed that Hicks has not seen — nor attempted to see — Child since February 13, 2010. Hicks returned to Kentucky — but not to Floyd County. She filed a motion to set aside the guardianship on June 7, 2010. On August 31, 2010, Halsey filed a petition in Floyd Fam[81]*81ily Court seeking de facto custodian status and custody of Child.

After being continued a number of times, the case was heard on February 23, 2012. Halsey, her daughter, and her husband each testified that Child was fully integrated into their household. They testified that Halsey cares for Child on a daily basis. Both Halsey and her daughter recounted an episode that occurred three days before Hicks initially left their home. Child was very sick, and although Hicks was in the home, Halsey’s daughter tended to Child while Halsey was at work. When Halsey came home from work, she and her daughter took Child to the emergency room. Hicks did not go along.

Medical records showed that Child had presented at the hospital with a fever of one hundred three degrees. Hicks testified that Child had never had a fever when she was in Halsey’s home. She also refused to acknowledge that Child had any developmental problems. Hicks testified that she had not attempted to see Child in person in the nearly two years that she had been back in Kentucky. She also acknowledged that she had not sought visitation with Child through the courts. The family court entered its findings and order designating Halsey as de facto custodian and granting her custody on May 29, 2012. Hicks filed this appeal.

Hicks argues that the family court erroneously designated Halsey as Child’s de facto custodian. We disagree. A de facto custodian is:

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[.] ... 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 Statutefc] (KRS) 403.270(l)(a). The purpose of designation as a de facto custodian is to afford a person who has acted as a parent equal status with parents in court. Allen v. Devine, 178 S.W.3d 517, 525 (Ky.App.2005); KRS 403.270(l)(b).

Clear and convincing evidence is “proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people.” M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky.App.1998) (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)). It has also been described as “the burden of proof to produce evidence more persuasive than a mere preponderance, but proof which need not rise to the level of beyond a reasonable doubt.” Hardin v. Savageau, 906 S.W.2d 356, 357-58 (Ky.1995). We may not reverse the trial court if its findings are supported by substantial evidence in the record. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d at 116.

Hicks makes the preliminary argument that Halsey was precluded from seeking custody and defacto custodianship because Halsey had unclean hands. “The unclean hands doctrine is a rule of equity that forecloses relief to a party who has engaged in fraudulent, illegal, or unconscionable conduct but does not operate so as to ‘repel all sinners from courts of equity.’ ” Suter v. Mazyck, 226 S.W.3d 837, 843 (Ky.App.2007) (quoting Dunscombe v. Amfot Oil Co., 201 Ky. 290, 256 S.W. 427, 429 (1923)). However, the doctrine is not applicable if the defendant’s conduct has been more offensive than that of the plaintiff. Id.

[82]*82Hicks claims that Halsey acted unconscionably when she filed the petition for the guardianship and the criminal abandonment charges in District Court. To support her claim, Hicks points to the fact that Halsey knew that Hicks intended to be away for approximately one week and that the documents were filed after only six days. However, Hicks overlooks the fact that she actually never returned to Halsey’s home to reunite with her child. In fact, she waited four months before returning to the state of Kentucky. Furthermore, Halsey was in a position where she felt forced to seek the guardianship; ie., it was necessary in order to place Child in daycare and to obtain help for Child’s developmental delays through the First Steps program. When she consulted with the county attorney about the guardianship, she was advised to file the criminal charges. Hicks does not provide proof of any unconscionable or fraudulent behavior by Halsey. Therefore, we are not persuaded that Halsey is barred by the unclean hands doctrine.

Hicks argues that Halsey did not meet the qualifications of de facto custodian because she had not been Child’s primary caretaker during the requisite six-month period. The basis of this argument is that Halsey’s ex-husband, Tony, assisted in the care of Child. Hicks relies on Consalvi v. Cawood, 63 S.W.3d 195 (Ky.App.2001), overruled on other grounds by Boone v.

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Cite This Page — Counsel Stack

Bluebook (online)
402 S.W.3d 79, 2013 WL 2659860, 2013 Ky. App. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-halsey-kyctapp-2013.