Simpson v. Simpson

586 S.W.2d 33, 1979 Ky. LEXIS 281

• Court: Kentucky Supreme Court
• Decided: July 3, 1979
• Status: Published

Opinions

LUKOWSKY, Justice.

The genesis of this appeal is an action for dissolution of marriage filed by Cynthia against her second husband, Word, in April of 1977. This was the second marriage for each of them and each had a child by a previous .marriage. In her amended petition Cynthia requested that the court grant her custody of her stepson, Hart Simpson or, in the alternative, visitation privileges. Hart was born during Word’s prior marriage. The trial court held that its jurisdiction had not been properly invoked on the custody issue and that a nonparent may not be awarded visitation. The Court of Appeals reversed the case on the visitation issue. We affirm the Court of Appeals.

The threshold issue is whether the trial court erred in holding its jurisdiction had not been properly invoked on the issue of custody. KRS 403.260(4)(b) provides: “A child custody proceeding is commenced in the circuit court: By a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.” (emphasis added).

At the time Cynthia filed her amended petition requesting custody or visitation privileges Hart was residing with her and not with his father. After the amended petition was filed Word took the boy from his stepmother in an effort to defeat the court’s jurisdiction. Such an act of self help by a party can not be used to deprive the court of jurisdiction.¹

At the time of the filing, the amended petition and the residence of Hart with Cynthia were sufficient to vest the trial court with jurisdiction of the issue of custody. The trial court erred in holding that its jurisdiction had not been properly invoked.

Cynthia candidly admits that she can not prove that Word is an unfit parent. In order for her to obtain custody of Hart she would have had to prove two things: 1) it is in the best interest of the child to be in the custody of a nonparent, and 2) the custodial parent is unfit. Chandler v. Chandler, Ky., 535 S.W.2d 71, 72 (1975). Because Cynthia has admitted she can not prove Word is an unfit parent, we hold as a matter of law that Word is entitled to custody of Hart.

The pendent issue is whether the trial court erred in not holding a hearing to determine if it would be in the best interest of Hart to place a limit on the custody award to Word by granting Cynthia visitation privileges. Visitation is a limitation on exclusive custody to be granted where it is in the best interest of the child. Phillips v. Horlander, Ky., 535 S.W.2d 72 (1975). It should be granted to a parent or a person standing in loco parentis to a child in a jurisdictionally sound custody proceeding when it is in the best interest of a child to do so. See KRS 403.270(c); Phillips v. Horiander, supra; Taraboletti v. Taraboletti, 56 Ill.App.3d 854, 14 Ill.Dec. 350, 372 N.E.2d 155 (1978). KRS 403.320 does not prohibit the grant of visitation to nonparents who stand in loco parentis and are jurisdictionally capable of litigating custody. It merely guarantees that a non-custodial natural parent will not be denied visitation privileges unless it would seriously endanger the child. Uniform Marriage and Divorce Act Sec. 407, Commissioner’s Note (1971). A trial court as an incident to custody determination may grant visitation to such non-parents if it is in the best interest of the child.

“Visitation is not solely for the benefit of the adult visitor but is aimed at fulfilling what many conceive to be a vital, or at least a wholesome contribution to the child’s emotional well-being by permitting partial continuation of an earlier established close relationship.” Looper v. McManus, Okla. App., 581 P.2d 487, 488 (1978). A surrogate parent can be as devoted to and concerned about a child as a natural parent. The relationship which develops between a surrogate parent and a child can be as close as that of the child to a natural parent.² Gribble v. Gribble, Utah, 583 P.2d 64 (1978); Looper v. McManus, supra; Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977); Hails, In Loco Parentis and The Relevant Child, 2 Orange Cty. B.J. 712, 715 (1975).

This is axiomatic where the nonpar-ent stands in loco parentis and has willingly assumed parental rights, duties and responsibilities toward the child. Gribble v. Gribble, supra; Spells v. Spells, supra. Where a nonparent alleges such a relationship has been established in a jurisdictionally viable custody action the court should hold a hearing to determine whether the granting of visitation privileges to the nonparent would be in the best interest of the child.

In this case there are some equities which point to Cynthia’s being granted visitation privileges. She acted as Hart’s mother from the time he was seventeen months old until he was removed from her care by his father almost six years later. While on the meager and incomplete record before us, we are unable to say she should be granted visitation privileges, the evidence certainly is sufficient to require a full hearing to determine whether granting of visitation privileges would be in the best interest of Hart.

The decision of the Court of Appeals is affirmed, the judgment of the Circuit Court is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

All concur except AKER and STEPHENSON, JJ., who dissent.

1 . The converse is also true. A nonparent can not legitimately invoke the court’s jurisdiction on the issue of custody by seizing a child from a parent prior to filing a petition for custody.

2 . The Legislature has acknowledged the significance of the stepparent-stepchild relationship in other areas. KRS 205.310 (stepparent has duty to support a stepchild); KRS 205.010(5) (stepparent included in the definition of parent); KRS 342.085(4) (stepparent included in the definition of parent under the workmen’s compensation law); KRS 40.010 (stepfather included in the definition of father under the veteran’s bonus statute).