RENDERED: MARCH 12, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0157-MR
JOVINIANO ALBINO SANTIAGO APPELLANT
APPEAL FROM BELL CIRCUIT COURT v. HONORABLE ROBERT V. COSTANZO, JUDGE ACTION NO. 19-CI-00267
TERESA BERRY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
MAZE, JUDGE: Joviniano Albino Santiago (Santiago) appeals from an order of
the Bell Circuit Court granting Teresa Berry (Berry) joint custody of his child
based on a finding that Berry qualified as a de facto custodian. We agree with
Santiago that Berry failed to present clear and convincing evidence that Berry was
the primary caretaker and financial supporter of the child for the requisite period. Hence, we reverse the order granting joint custody and remand with directions to
dismiss the petition.
The underlying facts of this matter are not in dispute. Santiago is the
father of J.B., who was born in November 2014. Shortly after birth, J.B. was
removed from the custody of her mother, Amanda Brooks (Brooks). Following a
hearing, the Bell District Court placed J.B. in the custody of Brooks’ mother,
Berry. On July 16, 2015, Santiago established paternity of J.B. and was granted
custody of the child.
On August 13, 2019, Berry filed a verified petition asserting that she
was a de facto custodian of J.B. and seeking custody of the child. Brooks did not
file an answer to the petition or participate in the proceedings. The trial court
appointed a friend of the court, who submitted a report detailing his investigation
of both parties and the child.1 The court also scheduled an evidentiary hearing,
which was held on December 16, 2019.
At the hearing, the parties agreed that, shortly after the paternity
determination, Santiago, Brooks, and J.B. moved into a mobile home on Berry’s
property. Berry lived in the mobile home with them for a while to assist with the
child. The parents and the child moved to a different mobile home later in 2015,
1 See Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), to explain the distinct roles served by a guardian ad litem and a friend of the court.
-2- but they relocated back to Berry’s property after about five to seven months. Berry
again resided with them in the mobile home for a while, then moved back to a
house on the same property.
The relationship between Santiago and Brooks ended in 2017, and
Brooks moved from the mobile home. Brooks was incarcerated for a significant
period of J.B.’s life both during and after her relationship with Santiago, and she
was not significantly involved in J.B.’s care and support. However, Santiago still
lived at the mobile home except for the period he was working out of town.
Santiago and the child moved from the mobile home in March 2019. They now
live in Tennessee with Santiago’s new wife.
The parties mainly disputed the amount of support which Santiago
provided. Santiago did not pay Berry rent, but he testified that he paid the utility
bills and made repairs on the trailer. Berry admits that Santiago paid the utility
bills but testified that he only made a few repairs to the mobile home. Santiago
also states that he paid the property taxes on the mobile home for two years, but
Berry testified he only paid one year. Throughout this period, Santiago was
employed at a restaurant in Middlesboro, except for several months in the summer
of 2017 when he was working in Knoxville, Tennessee. Santiago testified that he
provided financial support for J.B. throughout her life. Berry disputes this, stating
-3- that Santiago only occasionally provided clothes for the child and never any
financial assistance.
In addition, Santiago testified that J.B. only stayed with Berry twice a
week while he was working late and during the summer of 2017 when he was
working out of town. He also stated that he paid Berry $25 a day for babysitting.
In contrast, Berry testified that Santiago only stayed with J.B. twice a week until
2017, and then very little after that time. Berry states that Santiago never paid her
for babysitting. Santiago admitted that he had granted Berry permission to enroll
J.B. in preschool, to take J.B. to the doctor, and to access the child’s medical
records. Berry testified that she was primarily responsible for taking J.B. to the
doctor and that Santiago accompanied them only on a few occasions.
On January 7, 2020, the trial court entered findings of fact,
conclusions of law, and an order granting Berry’s request for custody of J.B. The
court found that J.B. resided with Berry “for a time period in 2017 until March 29,
2019, when [Berry] was the primary caregiver for, and financial supporter of the
minor child.” Based upon this finding, the court granted joint custody of J.B. to
Santiago and Berry, with Santiago designated as the child’s residential custodian.
The court gave Berry visitation with J.B. in accordance with the schedule adopted
in that circuit. Subsequently, the trial court entered an amended order specifying
-4- the times and location for exchange of the child for visitation. This appeal
followed. 2
Santiago argues that Berry failed to establish that she was a de facto
custodian of J.B. A “de facto custodian” means “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[.]” KRS3 403.270(1)(a).
Once a court determines a person qualifies as a de facto custodian, the court shall
give that person the same standing in custody matters that is given to parents. KRS
403.270(1)(b).
“A trial court’s findings of fact in a domestic matter can only be set
aside by a reviewing court if those findings are clearly erroneous.” Mullins v.
Picklesimer, 317 S.W.3d 569, 581 (Ky. 2010) (citing Reichle v. Reichle, 719
S.W.2d 442 (Ky. 1986); CR4 52.01). “To determine whether findings are clearly
erroneous, reviewing courts must focus on whether those findings are supported by
substantial evidence.” Id. (citing Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2 The parties have advised this Court that Brooks died on January 30, 2020, after the filing of the notice of appeal in this case. 3 Kentucky Revised Statutes. 4 Kentucky Rules of Civil Procedure.
-5- 2003)). “[D]ue regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.” CR 52.01. Furthermore, a reviewing court is not
authorized to substitute findings of fact for those of the trial court. Bennett v.
Horton, 592 S.W.2d 460, 464 (Ky. 1979). Our review of related legal issues and
questions of law is de novo. Ball v. Tatum, 373 S.W.3d 458, 464 (Ky. App. 2012).
The controlling issue in this case is whether Berry provided clear and
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RENDERED: MARCH 12, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0157-MR
JOVINIANO ALBINO SANTIAGO APPELLANT
APPEAL FROM BELL CIRCUIT COURT v. HONORABLE ROBERT V. COSTANZO, JUDGE ACTION NO. 19-CI-00267
TERESA BERRY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
MAZE, JUDGE: Joviniano Albino Santiago (Santiago) appeals from an order of
the Bell Circuit Court granting Teresa Berry (Berry) joint custody of his child
based on a finding that Berry qualified as a de facto custodian. We agree with
Santiago that Berry failed to present clear and convincing evidence that Berry was
the primary caretaker and financial supporter of the child for the requisite period. Hence, we reverse the order granting joint custody and remand with directions to
dismiss the petition.
The underlying facts of this matter are not in dispute. Santiago is the
father of J.B., who was born in November 2014. Shortly after birth, J.B. was
removed from the custody of her mother, Amanda Brooks (Brooks). Following a
hearing, the Bell District Court placed J.B. in the custody of Brooks’ mother,
Berry. On July 16, 2015, Santiago established paternity of J.B. and was granted
custody of the child.
On August 13, 2019, Berry filed a verified petition asserting that she
was a de facto custodian of J.B. and seeking custody of the child. Brooks did not
file an answer to the petition or participate in the proceedings. The trial court
appointed a friend of the court, who submitted a report detailing his investigation
of both parties and the child.1 The court also scheduled an evidentiary hearing,
which was held on December 16, 2019.
At the hearing, the parties agreed that, shortly after the paternity
determination, Santiago, Brooks, and J.B. moved into a mobile home on Berry’s
property. Berry lived in the mobile home with them for a while to assist with the
child. The parents and the child moved to a different mobile home later in 2015,
1 See Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), to explain the distinct roles served by a guardian ad litem and a friend of the court.
-2- but they relocated back to Berry’s property after about five to seven months. Berry
again resided with them in the mobile home for a while, then moved back to a
house on the same property.
The relationship between Santiago and Brooks ended in 2017, and
Brooks moved from the mobile home. Brooks was incarcerated for a significant
period of J.B.’s life both during and after her relationship with Santiago, and she
was not significantly involved in J.B.’s care and support. However, Santiago still
lived at the mobile home except for the period he was working out of town.
Santiago and the child moved from the mobile home in March 2019. They now
live in Tennessee with Santiago’s new wife.
The parties mainly disputed the amount of support which Santiago
provided. Santiago did not pay Berry rent, but he testified that he paid the utility
bills and made repairs on the trailer. Berry admits that Santiago paid the utility
bills but testified that he only made a few repairs to the mobile home. Santiago
also states that he paid the property taxes on the mobile home for two years, but
Berry testified he only paid one year. Throughout this period, Santiago was
employed at a restaurant in Middlesboro, except for several months in the summer
of 2017 when he was working in Knoxville, Tennessee. Santiago testified that he
provided financial support for J.B. throughout her life. Berry disputes this, stating
-3- that Santiago only occasionally provided clothes for the child and never any
financial assistance.
In addition, Santiago testified that J.B. only stayed with Berry twice a
week while he was working late and during the summer of 2017 when he was
working out of town. He also stated that he paid Berry $25 a day for babysitting.
In contrast, Berry testified that Santiago only stayed with J.B. twice a week until
2017, and then very little after that time. Berry states that Santiago never paid her
for babysitting. Santiago admitted that he had granted Berry permission to enroll
J.B. in preschool, to take J.B. to the doctor, and to access the child’s medical
records. Berry testified that she was primarily responsible for taking J.B. to the
doctor and that Santiago accompanied them only on a few occasions.
On January 7, 2020, the trial court entered findings of fact,
conclusions of law, and an order granting Berry’s request for custody of J.B. The
court found that J.B. resided with Berry “for a time period in 2017 until March 29,
2019, when [Berry] was the primary caregiver for, and financial supporter of the
minor child.” Based upon this finding, the court granted joint custody of J.B. to
Santiago and Berry, with Santiago designated as the child’s residential custodian.
The court gave Berry visitation with J.B. in accordance with the schedule adopted
in that circuit. Subsequently, the trial court entered an amended order specifying
-4- the times and location for exchange of the child for visitation. This appeal
followed. 2
Santiago argues that Berry failed to establish that she was a de facto
custodian of J.B. A “de facto custodian” means “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[.]” KRS3 403.270(1)(a).
Once a court determines a person qualifies as a de facto custodian, the court shall
give that person the same standing in custody matters that is given to parents. KRS
403.270(1)(b).
“A trial court’s findings of fact in a domestic matter can only be set
aside by a reviewing court if those findings are clearly erroneous.” Mullins v.
Picklesimer, 317 S.W.3d 569, 581 (Ky. 2010) (citing Reichle v. Reichle, 719
S.W.2d 442 (Ky. 1986); CR4 52.01). “To determine whether findings are clearly
erroneous, reviewing courts must focus on whether those findings are supported by
substantial evidence.” Id. (citing Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2 The parties have advised this Court that Brooks died on January 30, 2020, after the filing of the notice of appeal in this case. 3 Kentucky Revised Statutes. 4 Kentucky Rules of Civil Procedure.
-5- 2003)). “[D]ue regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.” CR 52.01. Furthermore, a reviewing court is not
authorized to substitute findings of fact for those of the trial court. Bennett v.
Horton, 592 S.W.2d 460, 464 (Ky. 1979). Our review of related legal issues and
questions of law is de novo. Ball v. Tatum, 373 S.W.3d 458, 464 (Ky. App. 2012).
The controlling issue in this case is whether Berry provided clear and
convincing evidence that she served as the primary caretaker and financial
supporter of J.B. for at least one year. “[C]lear and convincing evidence” requires
the party with the burden of proof to produce evidence substantially more
persuasive than a preponderance of evidence, but not beyond a reasonable doubt.
Fitch v. Burns, 782 S.W.2d 618, 622 (Ky. 1989). A party may not achieve de facto
custodian status for any period during which the purported custodian shares
caregiving or financial support duties with a biological parent. See Consalvi v.
Cawood, 63 S.W.3d 195, 198 (Ky. App. 2001), abrogated on other grounds by
Moore, 110 S.W.3d 336.
In Consalvi, the Court stated “[i]t is not enough that a person provide
for a child alongside the natural parent; the statute is clear that one must literally
stand in the place of the natural parent to qualify as a de facto custodian.” Id.
Likewise, the Court in Mullins stated that “parenting the child alongside the natural
parent does not meet the de facto custodian standard in KRS 403.270(1)(a).” 317
-6- S.W.3d at 574 (citation omitted). Even if a non-parent provides care or financial
support for a child, if such care and support is in conjunction with a natural parent,
then the non-parent will not qualify as a de facto custodian. Brumfield v. Stinson,
368 S.W.3d 116, 119 (Ky. App. 2012).
The facts of the current case are substantially similar to those
presented in Brumfield. In that case, the mother and her child were supported by
the Stinsons, who were grandparents of another child of hers. The Stinsons offered
to help care for the child while Mother was at work. Initially, the Stinsons would
keep the child at their home while Mother worked nights, returning him to
Mother’s apartment when she was home. But for a brief period, Mother and the
child lived with the Stinsons. Id. at 117.
As in the current case, the trial court in Brumfield found that the
Stinsons qualified as de facto custodians. This Court reversed that finding.
Although there was evidence that the Stinsons provided significant financial
support and caregiving for the child, this Court held that “the de facto period could
not commence as long as they were ‘co-parenting’ with [Mother].” Id. at 119.
Since the Stinsons failed to prove that they stood in the place of the natural parent,
the Court held that the trial court erred in finding that there was clear and
convincing evidence that the Stinsons were de facto custodians as defined by KRS
-7- 403.270 and our case law. Id. See also Perry v. Goodwin, No. 2019-SC-000474-
DE, 2020 WL 1846874 (Ky. Mar. 26, 2020).
Likewise, the parties in this case dispute how much time Santiago
spent with the child. But there is no dispute that he was present in the child’s life
since 2015. Berry admits that Santiago paid the utility bills for the mobile home
while they lived there, as per their agreement. She also admitted that Santiago
bought clothes and food for the family, although she contends that his
contributions were minimal.
At most, Berry was the primary caretaker and financial supporter for
J.B. for about three months in 2017, while Santiago was working in Knoxville.
After that time, he returned to living in the mobile home with the child. Berry
concedes that Santiago worked long hours during this time but still made an effort
to provide for the child and remain a presence in her life.
As in Brumfield, Berry provided significant financial support and
caretaking for the child for at least a year after Santiago returned from Knoxville.
But we cannot find clear and convincing proof that her role was primary to the
substantial exclusion of the natural parent. Therefore, the trial court erred in
finding that Berry qualified as a de facto custodian under KRS 403.270. And since
Berry does not assert that Santiago was unfit to have custody of J.B. or waived his
-8- superior right to sole custody, we also conclude that the trial court erred by
granting Berry joint custody of J.B.
Accordingly, we reverse the order of the Bell Circuit Court and
remand with directions to dismiss Berry’s custody petition.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Russell D. Alred Brandon West Harlan, Kentucky Barbourville, Kentucky
-9-