Opinion
NO. 2012-CA-001498-ME
04-12-2013
MATTHEW DANE MCCRACKEN APPELLANT v. CANDI WICKEY AND MISTY SISSON APPELLEES
BRIEF FOR APPELLANT: Mark L. Ashburn Paducah, Kentucky BRIEF FOR APPELLEES: Joseph B. Roark Paducah, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN FAMILY COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 12-CI-00316
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Matthew McCracken appeals from the McCracken Family Court's July 30, 2012 order denying him de facto custodian status and dismissing his petition for custody of a minor child. We affirm.
D.L.D., a minor child, was born on June 11, 2010, to Michael and Heather Draffen. Heather died in November 2010. Soon thereafter, Michael became gravely ill. He moved in with Misty Sisson, his ex-wife. Unable to care for both D.L.D. and his other minor child, E.D., Michael placed D.L.D. in the care of Misty's sister, Candi Wickey. E.D. stayed with Michael and Misty.
Misty cared for Michael until his death in February 2011. In his last will and testament and in accordance with Kentucky Revised Statutes (KRS) 387.040, Michael nominated Misty as guardian of both his minor children. On April 14, 2011, the Marshall District Court, Probate Division, appointed Misty guardian of both D.L.D. and E.D.
Despite Misty's appointment as guardian, D.L.D. remained, and still remains, in Candi's physical custody and control. Candi was romantically involved with Matthew when D.L.D. began living with her. In fact, Matthew and Candi sporadically shared a residence until their relationship ceased in January 2012, after which Candi no longer permitted Matthew to have contact with D.L.D.
On March 22, 2012, Matthew filed a petition seeking custody of D.L.D., claiming to be D.L.D.'s de facto custodian. Three months later, Misty and Candi moved to dismiss Matthew's petition arguing that Matthew failed to qualify as a de facto custodian and thus lacked standing to seek custody of D.L.D. Ultimately, by order entered July 30, 2012, the family court dismissed Matthew's petition. The family court found: (i) because this is a dispute between non-parents, the de facto custodian statute, KRS 403.270, is not applicable; and (ii) alternatively, Matthew lacked standing to seek custody of D.L.D. because Matthew had not been D.L.D.'s primary caregiver for the requisite six-month period preceding the petition, as required by KRS 403.270(1). Matthew takes his appeal from this order.
"In ruling on a motion to dismiss, the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true." Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009). Whether a non-parent is properly classified a de facto custodian is a question of law. See Heltsley v. Frogge, 350 S.W.3d 807, 808 (Ky. App. 2011). Our review is de novo. Id.
When a guardian is appointed pursuant to KRS 387.020(1), such as after a nomination pursuant to KRS 387.040, such appointment also constitutes an award of custody. KRS 387.010(3) ("'Guardian' means an individual . . . appointed by the District Court to have care, custody, and control of a minor[.]" (emphasis added)); KRS 387.040 (guardian "to have care, custody, and control of the minor" (emphasis added)); KRS 387.065(2)(a) ("[G]uardian shall: (a) Take custody of the person of the ward[.]" (emphasis added)). When the district court appointed Misty as D.L.D.'s guardian, it also awarded custody of the child to her.
Since 1990, when KRS 387.090 was amended to authorize it, Matthew could have petitioned (and still can petition) the district court to remove Misty as guardian, thereby depriving her of custody of D.L.D., if he could have convinced the court that removal is "in the best interest of the ward[.]" KRS 387.090(1)(b); 1990 Kentucky Laws S.B. 173, § 14 (Ch. 487). If removal is ever ordered, Matthew can seek his own appointment as D.L.D.'s guardian. KRS 387.020(1); KRS 387.025(1) ("Any interested person . . . may petition the District Court for the appointment of a guardian[.]"); KRS 387.032 ("District Court shall appoint [as guardian] any person . . . whose appointment would be in the best interest of the minor . . . ."). This is Matthew's recourse, and he may pursue it in the district court without first pleading or proving he is a de facto custodian.
In this case, Matthew instead petitioned the family court, claiming de facto custodian status pursuant to KRS 403.270. It is clear that a non-parent may attain standing to seek custody of a child if the non-parent qualifies as a de facto custodian. Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010). "[T]he purpose of de facto custodianship is to provide standing in custody matters to non-parents who have taken on a parental role in the life of a child whose custody is in dispute." Williams v. Bittel, 299 S.W.3d 284, 289 (Ky. App. 2009).
However, it is just as clear that KRS 403.270 applies only "to situations where the de facto custodian [is] involved in a dispute with a parent or parents." Swiss v. Cabinet for Families and Children, 43 S.W.3d 796, 798 (Ky. App. 2001). Furthermore, we said in McCary v. Mitchell, 260 S.W.3d 362 (Ky. App. 2008), a case originating in district court under KRS Chapter 387, that where "neither party is the parent of the child" in a contest for custody, then "as a matter of law, [the parties] could not be considered de facto custodians" so as to claim a "superior right to the child and that each was to be given equal consideration." McCary, 260 S.W.3d at 364-65. If the family court in the case before us had allowed Matthew to proceed with his claim of de facto custodian status, it would have authorized him to do indirectly that which we previously said he could not do directly.
For this reason, the McCracken Family Court's order dismissing Matthew's claim is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Mark L. Ashburn
Paducah, Kentucky
BRIEF FOR APPELLEES: Joseph B. Roark
Paducah, Kentucky