402 S.W.3d 79
Ky. Ct. App.2013Background
- Hicks appeals Floyd Family Court’s order designating Halsey de facto custodian and granting custody.
- Child, born 2008, lived with Halsey ( Hicks’s sister) beginning 2009.
- In 2010 Hicks left for Tennessee, later moved to Alabama; Halsey sought guardianship to place Child in daycare and obtain services.
- Halsey filed guardianship Feb 19, 2010; Hicks faced criminal abandonment charges on that same day.
- Hicks did not contact or visit Child after Feb 2010; Hicks returned to Kentucky but not Floyd County and did not seek visitation through courts.
- Family Court held Feb 23, 2012 hearing; on May 29, 2012 designated Halsey as de facto custodian and granted custody; Hicks appealed; court remanded for written findings on best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Halsey met statutory de facto custodian qualifications | Halsey was not primary caretaker due to Tony’s involvement | Halsey acted as primary caretaker; Hicks was absent | Halsey satisfied de facto custodian requirements |
| Whether unclean hands barred Halsey from relief | Halsey acted unconscionably by filing guardianship and charges | No proven unconscionable conduct by Halsey | Unclean hands not proven; doctrine inapplicable |
| Whether Halsey’s role justified equal standing in custody | Guardian’s role does not equal custody rights | Halsey acted in place of a parent since Hicks was absent | Halsey given equal standing as parent for custody purposes but need written findings on best interests |
| Whether Hicks’s guardianship-related actions tolled the six-month period | Motion to set aside guardianship tolled the period | Guardianship and custody are separate; tolling not satisfied | Six-month period not tolled; custody issue governs |
| Whether the court erred by not making explicit findings under KRS 403.270(2) | Court failed to provide detailed findings | Findings implied but not written; remand allowed | Remand for amplified, written findings on best interests required |
Key Cases Cited
- M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114 (Ky.App.1998) (definition and weight of clear and convincing evidence)
- Hardin v. Savageau, 906 S.W.2d 356 (Ky.1995) (clear and convincing standard described)
- Anderson v. Johnson, 350 S.W.3d 453 (Ky.2011) (CR 52.01 writing requirements in custody cases)
- Keifer v. Keifer, 354 S.W.3d 123 (Ky.2011) (requirement of written findings; best interests analysis)
- Suter v. Mazyck, 226 S.W.3d 837 (Ky.App.2007) (unclean hands doctrine applicability in equity)
- Sherfey v. Sherfey, 74 S.W.3d 777 (Ky.App.2002) (tolling when action relates to regaining custody)
- Consalvi v. Cawood, 63 S.W.3d 195 (Ky.App.2001) (predecessor guidance on de facto custodian)
- Fletcher v. Lippert’s Guardian, 251 Ky. 469, 65 S.W.2d 450 (Ky.1933) (custody and guardianship distinctions; welfare of ward)
- Fitzpatrick’s Guardian v. Baker, 227 Ky. 788, 14 S.W.2d 181 (Ky.1929) (guardian custody limitations; court control of custody)
- Benet v. Commonwealth, 253 S.W.3d 528 (Ky.2008) (overruled considerations referenced in decision)