RENDERED: JULY 12, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1073-MR
KYLE LINK APPELLANT
APPEAL FROM MEADE CIRCUIT COURT v. HONORABLE KENNETH H. GOFF, II, JUDGE ACTION NO. 22-CI-00009
KAYLA LINK APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, GOODWINE, AND KAREM, JUDGES.
KAREM, JUDGE: Kyle Link appeals from a Meade Circuit Court order
dismissing his petition for joint custody of N.W.L. (“Son”), the minor child of his
former wife, Kayla Link. The circuit court held that Kyle lacked standing and
failed to prove that Kayla waived her superior parental rights. Kyle also appeals
from a restraining order entered by the circuit court, banning him from
communicating with Kayla or Son, from attending any events involving Son, and from posting on social media about Son, Kayla, or the custody proceedings. Upon
careful review, we (1) vacate the order dismissing Kyle’s petition for custody and
remand for findings regarding waiver under the standard set forth in J.S.B. v.
S.R.V., 630 S.W.3d 693 (Ky. 2021), and Mullins v. Picklesimer, 317 S.W.3d 569
(Ky. 2010), as modified on denial of reh’g (Aug. 26, 2010); and (2) vacate the
restraining order because it fails to comport with Kentucky Rules of Civil
Procedure (“CR”) 65.
FACTUAL AND PROCEDURAL BACKGROUND
Kayla is the biological mother of Son, who was born in California in
April 2008. She gave him the surname of the man she believed to be his father. At
the time, this individual was in prison and Kayla was living with his grandmother.
Son’s biological paternity has never been established.
Kayla and Son moved to Kentucky in March 2009, and Kayla married
Kyle Link on December 5, 2009. Kyle and Kayla have a daughter (“Daughter”)
together, who was born in May 2010. They did not tell Son that Kyle was not his
biological father and only close friends and family knew the truth. Kyle and Kayla
did not want Son to find out about his paternity until he was older and more
emotionally mature.
-2- Both Son and Daughter called Kyle “Dad.” According to Kayla, it
was Son’s choice how he referred to Kyle, but she did not discourage him from
calling Kyle “Dad.”
In 2011, while Kyle was deployed in Afghanistan, Kayla changed her
last name and Son’s last name to Link. She and Son had not shared the same last
name up to this point and Kayla wanted all members of the family unit to have the
same last name. Kyle acted as a parent towards both Son and Daughter, playing
with them, preparing their meals, cleaning the house, and taking them to medical
appointments. During a period when Kayla worked full-time, Kyle stayed home to
look after the children. He was listed on school forms and medical forms as Son’s
parent/guardian.
Kyle and Kayla were divorced on August 13, 2018, after
approximately nine years of marriage. Kyle and Kayla had previously discussed
Kyle adopting Son. Kyle raised the issue again at the time of their divorce, but
Kayla adamantly opposed adoption. At that point, Son was ten years of age and
still believed Kyle was his father. Kayla assumed both children would be treated
similarly in the divorce settlement but then was advised that Son should not be
included in the dissolution settlement agreement.
Pursuant to the divorce settlement, Kayla and Kyle agreed to alternate
weeks of parenting time for Daughter. In practice, they treated the agreement as if
-3- it applied to both children. Son always accompanied Daughter when she went to
stay at Kyle’s house every other week. According to Kayla, this was so Son could
ensure Daughter received proper care.
Kyle and Kayla contributed equal amounts financially to support the
children after the divorce. Kyle paid childcare expenses for both children while
Kayla paid for their health insurance premiums. When the children outgrew
childcare, Kyle paid half their health insurance premiums. He also paid half their
medical expenses, for items such as braces. The record contains a series of
initially amicable emails and text messages between Kayla and Kyle following
their divorce, consulting with one another on issues regarding both children. Over
time, however, their relationship soured. On November 20, 2021, Kayla ended
Son’s contact with Kyle. At that time, without Kayla’s knowledge, Kyle told Son
he was not his biological father. Kyle filed a petition for custody and parenting
time of Son on January 13, 2022.
The circuit court conducted a hearing on January 11, 2023, with
testimony from Kayla, her fiancé, her sister, and Kyle. Son, who was 15 years old
at the time, did not testify at the hearing and there is no indication that the circuit
court interviewed Son in chambers. On April 25, 2023, the circuit court entered an
order finding that Kyle did not have standing to bring the custody petition and that
Kayla had not waived her superior right to custody. Kyle filed a motion for relief
-4- pursuant to CR 59.05. While that motion was pending, Kayla filed a motion
requesting a temporary injunction and restraining order against Kyle on behalf of
herself and Son. Kyle filed a response. The circuit court entered an order stating
that Kyle was to have no intentional contact or communication with Son until an
evidentiary hearing was conducted. Following that hearing, which was conducted
on August 14, 2023, the circuit court verbally denied Kyle’s CR 59.05 motion and
granted Kayla’s motion for a restraining order. The court requested Kayla’s
counsel to draft two orders memorializing its decisions, which it entered on August
30, 2023. This appeal by Kyle from both orders followed.
ANALYSIS
i. Kyle had standing to bring his petition for custody because he co-parented Son for at least six months in the year prior to filing the petition
The circuit court held that Kyle lacked standing to petition for custody
of Son. Kyle does not dispute that he cannot qualify as a de facto custodian under
Kentucky Revised Statutes (“KRS”) 403.270 but contends that the circuit court
erred as a matter of law in ruling he cannot meet the criteria set out in KRS
403.800(13). We agree.
The circuit court’s “ultimate determination on the standing issue is a
pure legal question[,] which we review de novo.” F.E. v. E.B., 641 S.W.3d 700,
704 (Ky. App. 2022) (internal quotation marks and citation omitted). “Under de
-5- novo review, we owe no deference to the . . . [circuit] court’s application of the law
to the established facts.” Id.
Standing is defined as “[a] party’s right to make a legal claim or seek
judicial enforcement of a duty or right.” Harrison v. Leach, 323 S.W.3d 702, 705
(Ky. 2010) (citation omitted). In order to have standing, a party must “have a
judicially recognizable interest in the subject matter of the suit.” Id. (citation
omitted).
“Prior to 2004, standing to bring a custody action was limited by KRS
403.240 to ‘a parent, a de facto custodian of the child, or a person other than a
parent only if the child is not in the physical custody of one of the parents.’”
Mullins, 317 S.W.3d at 574 (citing B.F. v. T.D., 194 S.W.3d 310, 310-11 (Ky.
2006)). So, for example, a “partner who lived with mother and mother’s adopted
child for six years as a family did not have standing to seek custody because the
child was in the physical custody of the legal parent.” Id.
This situation changed in 2004, with the passage of the Uniform Child
Custody Jurisdiction and Enforcement Act, KRS 403.800 et seq., which confers
standing on the child’s parents or “a person acting as a parent.” Mullins, 317
S.W.3d at 574-75; KRS 403.822(1)(b)1. A “person acting as a parent” is defined
as
a person, other than a parent, who:
-6- (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).
“As used in KRS 403.800 to KRS 403.880, ‘physical custody’ means
‘physical care and supervision of a child.’” Mullins, 317 S.W.3d at 575 (citing
KRS 403.800(14)). Significantly for purposes of this appeal, “[t]his statutory
definition of ‘physical custody’ does not require exclusive care and exclusive
supervision.” Id. Therefore, a person “who for the requisite period of time
performed all the traditional parental responsibilities, concurrently with another
or on an equal time sharing basis, had ‘physical custody’ under the provisions of
KRS 403.800 et seq.” Id. (emphasis added).
Under the terms of their dissolution settlement agreement, Kayla and
Kyle have “joint, shared custody” of Daughter. The agreement provides for equal
timesharing based on alternating weeks. It states that Kyle “shall have parenting
time with [Daughter] beginning on Sunday July 29, 2018 until August 5, 2018 at
4:00 pm and every other week thereafter; Kayla shall have parenting time with
[Daughter] beginning August 5, 2018 at 4:00 pm until August 12, 2018 at 4 pm
-7- and every other week thereafter.” The agreement also provided for alternate
holiday parenting time.
It is undisputed that Son accompanied Daughter during parenting time
with Kyle and there is no evidence that parenting time did not follow the schedule
set forth in the settlement agreement. This equal timesharing situation continued
for over three years, from August 2018 until November 20, 2021, when Kayla
decided Son would no longer accompany Daughter to stay with Kyle. Kyle filed
his petition for custody on January 13, 2022. Thus, in the year immediately
preceding the commencement of the custody action, he performed traditional
parental responsibilities on an equal timesharing basis with Kayla for at least six
months.
The circuit court held that Kyle did not have standing because he
could not establish that he had physical custody of Son for a period of six
consecutive months. This conclusion may be based on a misapprehension that the
term “physical custody” in KRS 403.800(13) means exclusive care and exclusive
supervision. Obviously, if Kyle had shown he had exclusive care and supervision
of Son for six continuous months, he could have qualified as a de facto custodian
under KRS 403.270. The circuit court’s determination that Kyle lacked standing to
bring his petition for custody is erroneous as a matter of law.
-8- ii. The circuit court’s findings are not sufficient to support its conclusion that Kayla did not waive her superior right to custody
Curiously, rather than dismissing the petition upon determining that
Kyle lacked standing, the circuit court addressed whether Kayla had waived her
superior right to custody.
When a nonparent like Kyle, who has standing but does not qualify as
a de facto custodian, wishes to be placed on an equal footing with a parent for
purposes of seeking custody, he “must prove one of two exceptions to a parent’s
superior right to custody: (1) that the parent is unfit; or (2) that the parent has
waived his or her superior rights.” J.S.B., 630 S.W.3d at 701 (citations omitted).
There was no allegation that Kayla is an unfit parent and consequently this action
focused on whether Kayla had waived her superior parental rights. “Parental
waiver . . . must be demonstrated by clear and convincing evidence.” Id. (citations
As with standing, the standard for parental waiver has been modified
to recognize familial relationships in which individuals co-parent children. In
Mullins, supra, the Kentucky Supreme Court “unequivocally relaxed the
previously stringent standard regarding what may constitute parental waiver. It
held, as a matter of first impression, that waiver can and should apply in certain
situations where a child has not been ‘fully surrendered’ to a nonparent[.]” J.S.B.,
630 S.W.3d at 703. It stated:
-9- we adjudge that there can be a waiver of some part of custody rights demonstrating an intent to co-parent a child with a nonparent. We see no reason why the law of waiver of custody rights should apply only to the full surrender of the child to the nonparent, to the exclusion of a waiver of some part of the superior parental right, which would essentially give the child another parent in addition to the natural parent.
Id. (quoting Mullins, 317 S.W.3d at 579).
“Unsurprisingly, the rationale behind this new doctrine of ‘partial
waiver’ was grounded on what is best for the child at issue in a custody case.” Id.
Specifically, the Court reasoned:
[t]he recognition of the applicability of the doctrine of waiver in a child custody situation is legally justified as well as necessary in order to prevent the harm that inevitably results from the destruction of the bond that develops between the child and the nonparent who has raised the child as his or her own. The bond between a child and a co-parenting partner who is looked upon as another parent by the child cannot be said to be any less than the bond that develops between the child and a nonparent to whom the parent has relinquished full custody.
Id. (quoting Mullins, supra).
The Kentucky Supreme Court has directed the family and circuit
courts to consider the following factors, adopted from Heatzig v. MacLean, 191
N.C. App. 451, 664 S.E.2d 347 (2008), to determine “whether the legal parent has
voluntarily chosen to create a family unit and to cede to the third party a
-10- sufficiently significant amount of parental responsibility and decision-making
authority to create a parent-like relationship with his or her child”:
(1) both plaintiff and defendant jointly decided to create a family unit; (2) defendant intentionally identified plaintiff as parent; (3) the sperm donor was selected based upon physical characteristics similar to those of plaintiff; (4) the surname of plaintiff was used as one of the child’s names; (5) plaintiff participated in the pregnancy and the birth of the child; (6) there was a baptism ceremony where both plaintiff and defendant were identified as parents; (7) plaintiff was identified as a parent on school forms; (8) they functioned together as a family unit for four years; (9) after the relationship between plaintiff and defendant ended, the defendant allowed plaintiff the functional equivalent of custody for three years; (10) defendant encouraged, fostered, and facilitated an emotional and psychological bond between plaintiff and the child; (11) plaintiff provided care and financial support for the child; (12) the child considered plaintiff to be a parent; (13) plaintiff and defendant shared decision-making authority with respect to the child; (14) plaintiff was a medical power of attorney for the child; (15) the parties voluntarily entered into a parenting agreement; and (16) defendant intended to create between plaintiff and the child a permanent parent- like relationship.
Mullins, 317 S.W.3d at 580 (citing Heatzig, 664 S.E.2d at 353-54); J.S.B., 630
S.W.3d at 704.
Kyle argues that Kayla’s actions met many of the factors listed above,
contending that he and Kayla decided to create a family unit when Son was eleven
months old, prior to the birth of Daughter; Kayla led Son to believe Kyle was his
real father; Kayla changed Son’s last name to Link; Kayla identified Kyle as Son’s
-11- parent on school and medical forms; they functioned as a family unit for
approximately nine years, the major part of Son’s life; after the relationship
between Kyle and Kayla ended, Kayla allowed Kyle the functional equivalent of
custody, with Son spending every other week with Kyle for over three years; Kyle
cared for and provided financial support for Son; and Son believed Kyle was his
biological father, even after the divorce.
The circuit court mistakenly based its finding that Kyle had not
proved waiver on the fact that, unlike in Mullins, there was no written agreement
granting Kyle any form of custody of Son and on Kayla’s refusal to allow Kyle to
adopt Son prior to their separation. Significantly, Mullins does not require such an
agreement to support a finding of partial waiver. The court also noted that Kyle
knew that Son was not his biological child and that their relationship was
essentially one of a stepparent and child. Under this reasoning, however, a same-
sex partner such as the appellant in Mullins could never establish waiver.
The circuit court also relied considerably on the testimony of Kayla’s
fiancé, James House, who began a relationship with Kayla in 2018 and currently
lives with Kayla and Son. House described himself as a mentor, teacher, and
confidant of Son and opined that Son was unaffected by learning that Kyle was not
his biological father and further opined that he saw a significant, positive change in
Son after Kayla stopped his contact with Kyle.
-12- We fully recognize that “[r]egardless 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. 2003) (internal quotation marks and
citations omitted). The problem in this case is that the circuit court did not apply
the correct legal standard in making its findings. Its findings do not appear to
recognize the doctrine of partial waiver established in Mullins and restated in
J.S.B., nor do its findings reflect a consideration of the Heatzig factors.
The evidence that Kayla waived her superior custody rights is
considerable, but this Court is well aware that it is not the finder of fact.
Consequently, the order denying Kyle’s petition for custody must be vacated and
the matter remanded for the circuit court to make written findings in accordance
with Mullins, J.S.B., and Heatzig as they are discussed above.
iii. The circuit court correctly ruled that the doctrine of equitable estoppel does not apply
Kyle further argues that the circuit court erred in ruling that equitable
estoppel did not apply because neither party misled the other about Son’s paternity.
The doctrine of equitable estoppel is predicated upon the theory that
-13- [w]here one has, by a course of conduct, with a full knowledge of the facts with reference to a particular right or title, induced another, in reliance upon such course of conduct, to act to his detriment, he will not thereafter be permitted in equity to assume a position or assert a title inconsistent with such course of conduct, and if he does he will be estopped to thus take advantage of his own wrong.
S.R.D. v. T.L.B., 174 S.W.3d 502, 506 (Ky. App. 2005).
The elements of an estoppel claim consist of the following:
(1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (3) these facts are unknown to the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment.
Id.
Kyle argues that he and Kayla made a material representation to Son
that Kyle was his biological father. He contends that Son relied on this
representation to his detriment and prejudice and is now cut off from emotional
and financial support from Kyle. However, Kyle cannot raise such a claim on
Son’s behalf, particularly as he, along with Kayla, was complicit in the deception.
The circuit court did not err in ruling that equitable estoppel did not apply to the
facts of this case.
-14- iv. The restraining order must be vacated because it is ambiguous and overbroad
On June 6, 2023, after the entry of the circuit court’s order denying
Kyle’s petition for custody and while Kyle’s CR 59.05 motion was pending, Kayla
filed a motion seeking a restraining order and temporary injunction. The motion
sought to prevent Kyle from contacting and harassing Kayla and Son by text
message, social media, Facebook, through third persons, through communications
media, or in person. It also requested that Kyle be prevented from posting
anything about Kayla, Son, or the court proceedings on any social media or other
form of communication. The circuit court held a brief hearing on the motion on
July 7, 2023. It scheduled an evidentiary hearing and entered a temporary order
stating that Kyle “shall have no intentional contact or communication with the
child . . . until the evidentiary hearing is held[.]”
Following that hearing, which addressed both the CR 59.05 motion
and the motion for a restraining order and temporary injunction, the circuit court
granted Kayla’s motion and entered an order styled “restraining order”
simultaneously with the order denying Kyle’s CR 59.05 motion.
The restraining order found that after April 25, 2023, the date of the
order dismissing Kyle’s petition for custody, Kyle continued to have contact with
Son at sports activities and school activities. He also continued to send text
messages to Son and used various phone numbers to deceive Son into reading the
-15- messages. Kayla testified that she and Son both asked Kyle to stop communicating
but he did not comply until July 7, 2023, when the court entered the temporary
order directing him to cease all communication with Son pending a hearing. The
circuit court found that Kyle’s behavior had caused irreparable harm to Son and
would continue to do so without a restraining order. The court also found that
Kayla’s rights as a parent had been impeded. The order restrains Kyle from
communicating with Kayla regarding Son and from contacting Son by text
message, social medical, Facebook, through third persons, or by coming around
Son. It restrains Kyle from attending wrestling practices and matches involving
Son or other school activities which Son may attend. Kyle is restrained from
posting on social media or “other form of communication” any pictures or matters
regarding Son or any information regarding the court proceedings. He was also
directed to remove a purported social media site entitled “[Son’s] Dad Link” or any
other social media site regarding Son or the court proceedings. Kyle is permitted
to attend events involving Daughter if Son is present, but he must refrain from
communication with him at these events.
Kyle argues that the restraining order was an abuse of discretion on
the following grounds: (1) that it was procedurally improper for failing to comply
with CR 65.05, which requires the applicant for a restraining order or temporary
injunction to give a bond; (2) that there was no clear showing of immediate and
-16- irreparable injury or findings to support such a showing; (3) that the order was a
prior restraint on speech which violates the First Amendment of the United States
Constitution and Section Eight of the Kentucky Constitution; and (4) that the order
did not have a termination date as required by CR 65.03, the Civil Rule governing
restraining orders.
“Restraining orders, temporary injunctions and permanent injunctions
as set forth in CR 65 are an extraordinary equitable remedy. As a class, these
injunctions have been described as summary peculiar and extraordinary, and ought
not to be issued except for great and irreparable mischief.” Commonwealth v.
Mountain Truckers Ass’n, Inc., 683 S.W.2d 260, 263 (Ky. App. 1984) (internal
quotation marks and citations omitted). The circuit court’s grant of injunctive
relief is reviewed for abuse of discretion. Maupin v. Stansbury, 575 S.W.2d 695,
697-98 (Ky. App. 1978).
Although the circuit court’s order is styled a “restraining order,” and it
twice states that “no other avenue is available” except “a restraining order,” the
order does not comply with CR 65.03. Restraining orders “are ordinarily granted
without notice to the defendant who therefore has not had the opportunity to attack
the plaintiff’s claim.” Mountain Truckers Ass’n, Inc., 683 S.W.2d at 263 (internal
quotation marks and citations omitted). CR 65.03(1) permits a restraining order to
be granted at the commencement or during the pendency of an action without
-17- written or oral notice to the adverse party and it remains in force “until, and not
after, (a) the time set for a hearing on a motion to dissolve the restraining order
unless there is then pending a motion for a temporary injunction, or (b) the entry of
an order on a motion for a temporary injunction, or (c) the entry of a final
judgment, whichever is earlier.” CR 65.03(5).
CR 65.04 permits a temporary injunction to be
granted during the pendency of an action on motion if it is clearly shown by verified complaint, affidavit, or other evidence that the movant’s rights are being or will be violated by an adverse party and the movant will suffer immediate and irreparable injury, loss, or damage pending a final judgment in the action, or the acts of the adverse party will tend to render such final judgment ineffectual.
CR 65.04(1).
“Notably, a motion for a temporary injunction does not call for, or
justify, an adjudication of the ultimate rights of the parties . . . and should issue
only where it is clearly shown that one’s rights will suffer immediate and
irreparable injury pending trial.” Cameron v. EMW Women’s Surgical Center,
P.S.C., 664 S.W.3d 633, 659-60 (Ky. 2023).
Thus, our case law and our civil rules specify that restraining orders
and temporary injunctions are extraordinary equitable remedies entered during the
pendency of the action upon a showing of impending immediate and irreparable
injury. But the restraining order in this case was entered after the entry of the final
-18- judgment and the denial of the CR 59.05 motion. The order has no termination
date, and contains very broad restrictions on Kyle’s actions, including future
restraints on expression on many subjects and in many formats. “Any prior
restraint on expression comes . . . with a heavy presumption against its
constitutional validity.” Hill v. Petrotech Resources Corp., 325 S.W.3d 302, 303-
04 (Ky. 2020) (internal quotation marks omitted). The restraining order is
therefore vacated because it is unclear whether it was intended to be some form of
permanent injunction; its temporal scope is not specified; and its future restraints
on expression are broad enough to implicate Kyle’s free speech rights.
CONCLUSION
For the foregoing reasons, the restraining order is vacated.
Additionally, the circuit court’s order dismissing Kyle’s petition for custody is
vacated and the matter is remanded for the circuit court to make further findings of
fact and conclusions of law in accordance with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Charles D. Brown, Jr. Lyn Taylor Long Abby L. Braune Elizabethtown, Kentucky Louisville, Kentucky
-19-