Regina MOORE and Jerry Dorning Appellants v. Richard ASENTE, Cheryl Asente and Justin Lee Moore, a Minor Appellees and Richard Asente and Cheryl Asente Appellants v. Regina Moore, Jerry Dorning and Justin Lee Moore Appellees
No. 2000-SC-1127-DG, 2001-SC-0325-DG.
Supreme Court of Kentucky.
June 12, 2003.
Rehearing Denied Aug. 12, 2003.
110 S.W.3d 336
Justice KELLER
Mitchell A. Charney, Stephanie Morgan-White, Goldberg & Simpson, PSC, Louisville, Counsel for Appellees/Cross Appellants, Richard Asente and Cheryl Asente.
Thomas R. Willenborg, Covington, Counsel for Appellee, Justin Lee Moore.
W. Kimble Moore, Jr., General Counsel, Office of Counsel, Cabinet for Families and Children, Frankfort, Counsel for Appellee/Cross Appellant, Amicus Curiae, Kentucky Cabinet for Families and Children.
William Waverly Townes, Ackerson, Mosley & Yann, Louisville, Counsel for Appellee/Cross Appellant, Amicus Curiae, American Academy of Adoption Attorneys.
Andrew J. Ruzicho, Lexington, Counsel for Appellee/Cross Appellant, Amicus Curiae, Justice for Children Project.
Michael Ryan Voorhees, Phillips Law Firm, Inc., Cincinnati, OH, Suellyn Scarnecchia, University of Michigan Law School, Ann Arbor, MI, Counsel for Appellee/Cross Appellant, Amicus Curiae, Hear My Voice.
Opinion of the Court by Justice KELLER.
I. ISSUES
This appeal from a child custody action, which resulted from the breakdown of a proposed private adoption, presents three (3) primary issues. Regina Moore (Moore) and Jerry Dorning (Dorning) signed consents to allow Richard and Cheryl Asente (the Asentes) to adopt their son, Justin. The consents, by their terms, would become irrevocable twenty (20) days from the date when Justin was placed with the Asentes. Before signing the consents, however, Moore and Dorning were advised by their attorney that they could revoke their consent to Justin‘s adoption at any time before their parental rights were terminated. Immediately before the termination of parental rights (TPR) hearing, but more than twenty (20) days after Justin‘s placement with the Asentes, the birth parents announced their desire to revoke their consents. Did the consents become irrevocable twenty (20) days after Justin‘s placement? Because Moore and Dorning were misinformed of the legal effect of the consents and relied on this misinformation in signing the consents, the consents were not knowingly given and were thus invalid and unenforceable.
After holding that the consents were invalid, the trial court held that the Asentes lacked standing to pursue custody of Justin. Did the invalidity of the consents deprive the Asentes of standing to seek Justin‘s custody? Because the birth parents voluntarily placed Justin with the Asentes with the intention of and for the purpose of the Asentes’ adoption of Justin, and because Justin remained with the Asentes for a significant period of time before the birth parents filed a proper legal action to regain his custody, we hold that under
The trial court ruled that the birth parents’ superior rights to Justin‘s custody
II. BACKGROUND
This action began as a proposed interstate adoption arrangement between the Asentes, Ohio residents, and Moore and Dorning, Kentucky residents. The Asentes had previously adopted another child, Joey, born to Moore and Dorning. Thus, when Moore discovered that she was pregnant again, she contacted the Asentes to see if they were interested in adopting this child as well. The Asentes responded affirmatively and agreed to adopt the yet-unborn child that would later be named Justin.
Following Justin‘s birth on February 28, 1997, however, Moore and Dorning decided they wanted to raise him themselves. They changed their minds about the adoption and notified the Asentes of their decision. In November 1997, however, Moore and Dorning again changed their minds and contacted the Asentes to determine if they still wished to adopt Justin. The Asentes once again responded affirmatively, and the proposed adoption process was set in motion.
To represent their interests in this proposed adoption, Moore and Dorning chose Thomas C. Donnelly (Donnelly), the lawyer who had represented them in the earlier placement of Joey with the Asentes. The Asentes agreed to pay Donnelly‘s fee for his representation of Moore and Dorning.
On December 16, 1997, and in accordance with their attorney‘s advice, Moore and Dorning jointly signed a form captioned Application for Permission to Receive or Place a Child,1 which was prescribed by the Kentucky Cabinet for Family and Children as the initiating form to be signed by persons wishing either to adopt or to place a child for adoption in Kentucky. Moore and Dorning signed as placing parents and designated the Asentes as the persons whom they wished to adopt Justin. On January 12, 1998, Moore and Dorning signed, again jointly, a form captioned Interstate Compact Placement Request,2 which is required when a child is to be placed for adoption or foster care in another state. Moore and Dorning signed as the sending persons and designated the Asentes as the persons with whom Justin was to be placed. Then on January 27, 1998, Moore and Dorning each separately signed a Voluntary and Informed Consent to Adoption. These consents were
VOLUNTARY AND INFORMED CONSENT TO ADOPTION3
1. Comes [Regina Carol Moore/Jerry Lee Dorning], the birth [mother/father] of Baby Justin Lee Moore and the consenting person, and having been duly sworn does state under oath that [she/he] has been fully informed of the legal effects of this Consent. [She/he] understands that twenty (20) days after signing this Consent, that it shall become final and irrevocable.
2. [Regina Carol Moore/Jerry Lee Dorning] affirms that [she/he] has not been given or promised anything of value, except statutorily allowed expenses.
3. [Regina Carol Moore/Jerry Lee Dorning] affirms that [she/he] has not been coerced in any way to execute this Consent, and that the Consent is voluntarily and knowingly given.
4. [Regina Carol Moore/Jerry Lee Dorning] affirms that [she/he] is not under the influence of drugs, alcohol or any other medication which might influence [her/his] ability to make a decision.
5. [Regina Carol Moore/Jerry Lee Dorning] has chosen to be represented by independent legal counsel, Thomas C. Donnelly, Esq., 77 W. Villa Place, 1000 St. Jude Center, Ft. Thomas, KY 41075.(513)221-7722.
6. Justin Lee Moore, the child to be adopted was born on February 28, 1997 at St. Luke West Hospital in Florence, Kentucky and currently resides with his birth parents at 7 Indiana Drive, Covington, Kentucky 41015.
7. The identity of the prospective adoptive parents are [sic] Rich and Cheryl Asente, residing in the state of Ohio.
8. It has been explained to me by Thomas C. Donnelly, Esq. that this Consent to Adoption will be final and irrevocable twenty (20) days after the execution of the placement which was previously approved, if approval of a placement was required, and that this Consent will be final and irrevocable twenty (20) days after approval of the placement, if not already approved.
9. If the child is not adopted, it is my wish that I be contacted regarding any future plans for the child.
10. [Regina Carol Moore/Jerry Lee Dorning] affirms that [she/he] has or will receive a completed and signed copy of this Consent.
11. [Regina Carol Moore/Jerry Lee Dorning], the consenting person understands that this Consent may only be withdrawn by written notification sent by certified or registered mail, addressed to either the attorney for the consenting person or the attorney for the adoptive parents within twenty (20) days following the execution of the Consent. The attorney for the consenting person is: Thomas C. Donnelly, Esq. 77 W. Villa Place, 1000 St. Jude Center, Ft. Thomas, KY 41075. The attorney for the prospective adoptive parents is: John R. Gargano, Esq., 294 Harmon, NW, PO Box 1859, Warren, Ohio 44482-1859.
12. This document was prepared by Thomas C. Donnelly, Esq., 77 W. Villa Place, 1000 St. Jude Center, Ft. Thomas, KY 41075.
13. This document was explained to the consenting person by [her/his] attorney, Thomas C. Donnelly, Esq.,
14. This Consent was executed at 3:00 p.m. on the 27 day of Jan., 1998 at Star Bank Latonia.
[Regina Carol Moore/Jerry Lee Dorning], the consenting person, hereby verifies that this Consent has been reviewed with and fully explained to [her/him].
/s/ [Regina C. Moore/Jerry Lee Dorning]
On February 17, 1998, both Kentucky and Ohio approved Justin‘s placement with the Asentes under the Interstate Compact on the Placement of Children (ICPC).4 On that same date: (1) the Asentes signed a document captioned Legal Risk Statement, which warned, until the parental rights [of] the birthparents have been terminated their adoption plan is at risk because the birthparents can revoke their consents; and (2) Moore and Dorning physically handed Justin over to the Asentes. The Asentes then took Justin to his new home in Ohio where he has continued to live since that time with the Asentes and his biological brother.
On the following day, February 18, 1998, the Asentes’ attorney, John Gargano (Gargano), in a letter to Donnelly, enclosed two (2) consent to adopt forms5 which [he] . . . request[ed] that [Donnelly] have both [Moore and Dorning] execute so [he] [would] have the same to file in court here, requested that he be provided certified copies of the orders terminating the parental rights of both Moore and Dorning, and advised Donnelly that he would proceed with the adoption process in Ohio [o]nce I have all of the documents in my possession . . . .
On March 9, 1998, Moore and Dorning signed a verified TPR petition.6 A week later, the petition was filed in the Kenton Circuit Court, and a hearing on the petition was scheduled for March 26, 1998.7 At this point, it appeared, on the surface, that the matters preliminary to the adoption were proceeding smoothly. However, this was only the calm before the storm.
On the hearing date—actually at the courthouse prior to the scheduled hearing—Moore and Dorning orally informed Donnelly that they had once again changed their minds regarding the adoption and that they wanted Justin returned to them. The hearing in the TPR action was thus cancelled. However, the TPR action itself was not dismissed at that time and remained pending.8 Later that same day,
On May 14, 1998, after it became apparent that the Asentes would not voluntarily return Justin, Moore and Dorning filed a motion in the TPR action requesting that Justin be returned to them.9 After excluding the Asentes from participating in the TPR action on the grounds that they were not proper parties to that action, the trial court held a final hearing in the TPR action on August 17, 1998.10 Also, on that day, Moore and Dorning filed the present action, a separate and independent action captioned Petition for Immediate Entitlement or in the Alternative Petition for Custody (custody action or custody petition) with the Kenton Circuit Court. The Asentes were named as respondents in the petition.
On September 4, 1998, the Asentes moved under
On September 8, 1998, the trial court dismissed the termination action. But, subsequently, on September 24, 1998, the court, apparently sua sponte, entered an order in the termination action and found that the adoption consents signed by Moore and Dorning had been revoked.11
On February 4, 1999, when the custody action came on for trial, the trial court announced that the consents had already been found invalid13 in the termination action and that it would not allow the parties to relitigate that issue.14 The court advised the lawyers that it would only hear testimony on the consent issue as it goes to the standard [of proof].15 The trial court then heard limited additional evidence16 regarding the validity of the consents.
COUNSEL: I am going to call Mr. Asente.
COURT: Mr. Asente.
COUNSEL: Judge, before I call Mr. Asente I would like to renew my motion for a judgment on the pleadings based on the testimony that‘s already been given here today.
COURT: I am inclined to grant your judgment on the testimony that‘s been given but I don‘t believe it‘s in your favor. I think that the consent was not informed and not voluntary, so your motion is granted. These young individuals were not informed of what this consent did. The issue as it relates to how that would or would not react in a different forum I think begs the question of whether I think that there needs to be scrutiny within the terms of the third branch of government which I think that it does. But the true question becomes what is the meaning of an informed and voluntary consent and I have heard nothing from anyone including the expert and how those consents are signed that have changed the facts that these individuals did not make an informed and voluntary consent. My opinion with reference to that has not changed from the basis I utilize in voluntary termination but I would agree that now the choice of words is that the consent itself is not voluntary and therefore is not a valid consent as opposed to a revoked consent. So your motion is granted.
COUNSEL: Does that mean that the proceedings are over for today?
COURT: Based on your motion, your proceedings are over for today.
Following the hearing, the trial court, on February 11, 1999, entered its Findings of Fact and Conclusions of Law, Judgment of Immediate Entitlement (immediate entitlement judgment). In its findings of fact, the trial court accepted the testimony of Moore, Dorning, and Donnelly to the effect that Donnelly had informed (or, to be more accurate, misinformed) Moore and Dorning that they could change their minds about the adoption until the final hearing in the TPR action. Additionally, the court found that Donna Womack, the family services clinician who had interviewed Moore and Dorning on the day
Because Petitioners were made to believe that their consent to the placement and adoption would not be final until their parental rights were terminated in a court proceeding, they never understood the consequences of executing the consent. Therefore, Petitioners never gave a knowing and voluntary consent to the termination or adoption. Thus, the consents executed on January 27, 1998, relying on this misinformation were void as a matter of law. As the consents are void, any acts taken on authority of those consents [are] likewise void, including the approval of the placement of the child with Respondents.
Accordingly, the trial court held that the consents were invalid for purposes of the custody action as well, concluded that Moore and Dorning were entitled to custody of Justin, entered a judgment granting the petition for the immediate entitlement to the care, custody, and control of Justin, and assigned a hearing date, March 16, 1999, to hear testimony regarding the fitness of the [Moore and Dorning] . . . .
At the fitness hearing, the court again heard only limited testimony before terminating the hearing. The court then entered a judgment holding that the Asentes did not have standing to pursue custody of Justin:
The Court determines, pursuant to
KRS Chapter 403 andKRS 405.020 , natural parents are presumed to be fit and are entitled to custody of their children, and although the [Asentes] currently have physical possession of Justin they have no standing to present evidence of unfitness. In the February 9, [sic] 1999 hearing before this Court, [Moore and Dorning] were granted immediate custody, the [Asentes] had no established legal interests in Justin but merely a physical possession which the Court ordered continued pending its experts’ advice on transfer concerns for Justin. Any such evidence concerning unfitness must be presented by one with legal custody, such as the Cabinet for Families and Children.
To further complicate this matter, on June 5, 1998, during the pendency of the Kentucky actions, the Asentes filed an adoption action in Ohio with the Trumbull County Court of Common Pleas, Probate Division (Probate Court). The issue that dominated the Ohio adoption action was whether Kentucky or Ohio had jurisdiction over Justin. On July 6, 1998, the Kentucky trial court in the TPR action ruled that it had jurisdiction, and on July 8, 1998, the Ohio Probate Court dismissed the adoption action pending before it on the basis that the Kentucky trial court had jurisdiction over whether the parental rights of Moore and Dorning were properly terminated under Kentucky law. An appeal was filed by the Asentes from the dismissal but subsequently dismissed by them.
In the meantime, the Asentes had filed a motion in the Probate Court for reconsideration of its dismissal of the adoption action, and after the dismissal of their appeal, the motion was granted. The As-
The Asentes appealed from the Kenton Circuit Court‘s final judgment. Kentucky‘s Court of Appeals first addressed the jurisdictional issue and affirmed the trial court‘s determination that it had jurisdiction to enter its judgments and orders. Next, the Court of Appeals addressed the issue of whether the trial court erred in granting custody of Justin to Moore and Dorning. After concluding that Moore and Dorning signed informed consents, the Court of Appeals found that the trial court clearly erred when it determined that the consents were invalid, and reversed in part and remanded for entry of an order dismissing Moore and Dorning‘s custody action.
Moore and Dorning filed a motion for discretionary review in this Court, and we granted both that motion and the Asentes’ cross-motion for discretionary review, which argued that the Court of Appeals erred in its analysis of the jurisdictional issue and that the Court of Appeals‘s holding was supported by additional grounds that it did not reach on appeal. We affirm the Court of Appeals‘s holding that Kenton Circuit Court properly exercised jurisdiction in this matter, but find substantial evidence to support the trial court‘s ruling that Moore and Dorning did not knowingly sign their consents, and we therefore reverse the Court of Appeals‘s holding, which directed the trial court to dismiss Moore and Dorning‘s custody action. As to the issues presented in the Asente‘s cross-appeal, however, we agree that the trial court erred when it held that the Asentes lacked standing to seek custody of Justin, and we thus vacate the trial court‘s order that directed the Asentes to return Justin to Moore and Dorning, and remand the case to the Kenton Circuit Court for a hearing on Moore and Dorning‘s custody action. Because we find that Moore and Dorning have waived their superior rights to custody of Justin, we direct the trial court to adjudicate the rival custody claims under the best interest standard.
III. ANALYSIS
A. JURISDICTION
The Asentes assert that Kentucky does not have jurisdiction over this matter and
The Asentes first argue that Moore and Dorning transferred jurisdiction to Ohio under Article V of the ICPC, which provides in relevant part:
RETENTION OF JURISDICTION
(a) The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency‘s state, until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state. Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law. The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement. Nothing contained herein shall defeat a claim of jurisdiction by a receiving state sufficient to deal with an act of delinquency or crime committed therein.23
The Asentes argue that, because the sending agency in this case is Moore and Dorning,24 once the consents became final and irrevocable, Moore and Dorning did not retain any jurisdiction over Justin. And, thus, because the Asentes did not reside in Kentucky, the Kenton Circuit Court was divested of jurisdiction. We find this argument without merit for two reasons. First, we hold that the ICPC does not apply to jurisdictional conflicts, but that the term ‘jurisdiction’ as used in the ICPC merely refers to which party in an adoption proceeding has ‘responsibility for a child‘s well-being.’25 Second, the Asentes’ argument depends upon and presumes the validity of the consents, but, as discussed below in Part III(B), the trial court‘s finding that the consents were invalid is supported by substantial evidence.
The Asentes cite In the Matter of the Adoption of Jarrett26 in support of their argument that the ICPC divested the Kenton Circuit Court of jurisdiction. Although Jarrett held that the biological mother‘s execution of a valid consent document in Pennsylvania transferred both the child and jurisdiction to New York under Article V of the ICPC, we would observe that Jarrett is clearly distinguishable. The version of the UCCJA enacted by
The relevant parts of the UCCJA, as adopted by Kentucky,28 provide as follows:
(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state is the home state of the child at the time of commencement of the proceeding, or had been the child‘s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child‘s present or future care, protection, training, and personal relationships; or
(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.29
In ruling upon the Asentes’ motion to dismiss, the trial court in its October 22, 1998 order determined that Kentucky retained jurisdiction of this matter:
The instant action was filed within 6 months of the placement of the child in Ohio. Kentucky remains the home state of the child. It is in the best interest of the child that Kentucky retain jurisdiction because of the significant connections to Kentucky and the existence of substantial evidence within this state. The Respondents have no judicial decree or order placing the child within their custody or control.
We agree with the Kenton Circuit Court‘s determination that it had jurisdiction. The action filed by Moore and Dorning for immediate entitlement and custody is a custody proceeding under the UC-
B. CONSENT TO ADOPTION VERSUS TPR ACTION
The trial court focused—we feel mistakenly—on whether the consents executed by the birth parents were consents for the voluntary TPR action or for the proposed adoption action in Ohio. We observe that one of two courses is generally followed prior to the filing of an adoption petition. In one, the birth parents’ rights are first terminated in a voluntary TPR action,35 and the adoption petition, accompanied by a certified copy of the order terminating the parental rights,36 is then filed. If this course is followed, the birth parents are not necessary parties to the adoption action since their parental rights have been terminated,37 and the adoption action thus proceeds without further notice to the birth parents. The second course utilizes the birth parents’ consent to the proposed adoption. The birth parents sign the consent to allow the adoption,38 they
The trial court determined that the birth parents’ consent was for the TPR action and not for the proposed adoption. While we doubt both the correctness and the legal relevance of this determination in the overall resolution of this case, we would note that consent for a voluntary TPR action differs significantly from the consent executed by the birth parents here.48 The primary purpose of the consent provided for in a TPR action is to allow the
C. VOLUNTARY AND INFORMED CONSENTS
The crux of this appeal is the validity of the consents executed by Moore and Dorning. And, the consents’ validity must be determined by whether Moore and Dorning gave voluntary and informed consents,50 which means:
[T]hat at the time of the execution of the consent the consenting person was fully informed of the legal effect of the consent, that the consenting person was not given or promised anything of value except those expenses allowable under
KRS 199.590(6) , that the consenting person was not coerced in any way to execute the consent, and that the consent was voluntarily and knowingly given.
Moore and Dorning do not contest that they voluntarily signed the consents, and because their own lawyer represented them, their consents are presumed to be voluntary and informed.51 Additionally, the consents, as drafted, include matters that are required only in cases where a parent is not represented by counsel.52
Furthermore, the following facts are not disputed: (1) the consents clearly state that they will be final and irrevocable twenty (20) days after approval of the placement; (2) Moore and Dorning admitted that they read and understood the consents before signing them; (3) immediately before the birth parents signed the consents, Womack explained to them that the consents were irrevocable after twenty (20) days;54 (4) Moore called Donnelly within the twenty-day revocation period and asked him about calculating the period; (5) Donnelly explained to Moore how the period was calculated; and (6) Moore and Dorning did not revoke their consents during the twenty-day revocation period.
Nevertheless, the trial court, relying upon the testimony of Moore, Dorning, and Donnelly, found that Donnelly unintentionally misinformed Moore and Dorning as to the legal consequences of signing the consents, that Moore and Dorning relied upon Donnelly‘s advice in signing the consents, and, as a result, that the consents were invalid because they were not voluntary and informed. The Court of Appeals, however, held that the trial court clearly erred in its determination that the consents were not knowingly and voluntarily given and thus held that the trial court clearly erred when it determined that the consents were invalid.
The Court of Appeals, however, was entitled to set aside the trial court‘s (j) Total amount of the consenting person‘s legal fees, if any, for any purpose related to the execution of the consent and the source of payment of the legal fees.
We would note that the thirty (30) days allowed under subsection (h) for withdrawal of the consent is probably the result of a clerical error and that the time period was meant to be twenty (20) days. Judge James E. Keller, Beware: Major Changes in Private Independent Adoptions, Bench & Bar, Kentucky Bar Association, vol. 60, no. 3 (Summer 1996). This mistake was rectified in the 2001 Session of the General Assembly. 2001 Ky. Acts ch. 69, § 1. Additionally, we would mention that prior to the enactment of the Voluntary and informed consent provisions,
D. CUSTODY ACTION
1. STANDING
Based upon its conclusion that the consents were invalid, the trial court ruled that Moore and Dorning were entitled to the immediate custody of Justin.67 The trial court then, however, assigned a hearing date to hear testimony regarding the fitness of [Moore and Dorning] . . . . Because the Asentes’ custody claim remained pending, the appropriateness of the trial court‘s ruling that Moore and Dorning were entitled to immediate custody of Justin is questionable;68 however, the trial court allowed custody to remain with the Asentes pending the fitness hearing, and consequently, the status quo of Justin‘s custody was maintained pending the final resolution of all custody issues.
At the abbreviated fitness hearing, the trial court summarily ruled that the Asentes did not have standing to pursue custody of Justin and dismissed their custody claim. We find this ruling in error. Standing is [a] party‘s right to make a legal claim or seek judicial enforcement of a duty or right,69 or, in other words, the right to bring an action in the first instance.70 In Kentucky, a nonparent‘s standing to bring a custody action is governed by
(4) A child custody proceeding is commenced in the Circuit Court:
. . .
(b) 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 (1) of his parents[ ].71
This language appears rather straightforward, i.e., a nonparent has standing if the child is not in the physical custody of a parent. And, in the present case, because Justin was living with the Asentes in their home, it would seem to follow logically that they had physical custody of him and therefore standing to maintain an action for his custody. However, several courts, including the Kentucky Court of Appeals, have rejected the argument that physical possession alone gives standing to the nonparent.
In Williams v. Phelps,72 a nonparent with whom a child was residing sought custody of the child, and the Kentucky Court of Appeals indicated that the nonparent‘s mere physical possession of the child did not confer standing on her but nevertheless held that the nonparent had standing [b]ased upon all of these facts, under the unique circumstances of this case.73 In Henderson v. Henderson,74 the Montana Supreme Court, in addressing a statute that authorized the commencement of a child custody proceeding by a person other than a parent only if [the child] is not in the physical custody of one of his parents,75 held that physical custody’ is not limited to having actual, immediate control of the physical presence of the child . . . , but [r]ather, this phrase relates to the custodial rights involved in the care and control of the child.76 In explaining its ruling, the Court stated that [t]o interpret this phrase otherwise would allow a nonparent to file a petition for custody anytime the child is out of the physical presence of the parent or parents, even if for a few minutes, or under the watchful eyes of an authorized babysitter.77 Twenty years later, in Girard v. Williams,78 when the Montana Supreme Court again addressed the issue, it followed and further explained its earlier holding:
[P]hysical custody’ for purposes of establishing standing . . . is not based simply on who has actual possession of a child at the time a custody proceeding is commenced. Rather, the ‘phrase relates to the custodial rights involved in the care and control of the child.’ As a result, to establish standing, a nonparent must demonstrate that the child‘s parent has voluntarily relinquished his or her right to physical custody and must present evidence as to the duration of the separation between the parent and child.79
Similarly, in In re A.W.J.,80 the court held that [t]he determination that a parent
The phrase physical custody first appeared in
Physical custody was not defined in the UMDA, and accordingly, when the phrase first appeared in
Kentucky‘s appellate courts have recognized not only that parents of a child have a statutorily granted superior right to its care and custody,96 but also that parents have fundamental, basic and constitutionally protected rights to raise their own children.97 And, because we would necessarily abrogate those rights if we were to resolve custody disputes on a best interest of the child standard after allowing the nonparent to obtain standing by mere possession of the child, we hold that physical custody for the purposes of establishing standing requires more than actual possession and control of a child at the time a custody action is commenced98 i.e., a showing that the parent has somehow voluntarily and indefinitely relinquished custody of the child. This does not mean that every voluntary relinquishment will deprive a parent of physical custody and bestow standing upon a nonparent. In determining whether parents have relinquished physical custody in a manner that confers standing upon a nonparent, Kentucky trial courts—like other courts that have addressed this issue—should consider, among other factors: (1) how possession of the child was acquired by the nonparent, especially the intent of the parents at the time of their relinquishment of the child to the nonparent; (2) the nature and duration of the possession by the nonparent; (3) the age of the child when possession was acquired by the non-
On the facts of this case, we conclude that the trial court clearly erred when it ruled that the Asentes lacked standing. Moore and Dorning voluntarily relinquished Justin to the Asentes for the purpose of adoption. In furtherance of the planned adoption, they filed an action to terminate their parental rights and to transfer Justin‘s custody to the Asentes. Although their consents to adopt are not enforceable and the TPR action was dismissed, these actions undoubtedly show that, when they handed Justin over to the Assentes, Moore and Dorning intended to relinquish custody indefinitely. Although Moore subsequently called and sought the return of Justin, she did not do so until over a month later, and Moore and Dorning did not file this action to regain Justin‘s custody until almost six (6) months after Justin‘s placement with the Asentes. Based on these facts, we hold that Justin was in the physical custody of the Asentes, not Moore and Dorning, at the time this custody action was commenced, and therefore, the Asentes have standing to pursue Justin‘s custody. Accordingly, we hold that the trial court erred when it held that the Asentes lacked standing to pursue custody of Justin, and we therefore remand this matter to the trial court for it to conduct a hearing to determine custody.
2. STANDARD: UNFITNESS VERSUS BEST INTEREST
Custody contests between a parent and a nonparent who does not fall within the statutory rule on ‘de facto’ custodians are determined under a standard requiring the nonparent to prove that the case falls within one of two exceptions to parental entitlement to custody. One exception to the parent‘s superior right to custody arises if the parent is shown to be ‘unfit’ by clear and convincing evidence. A second exception arises if the parent has waived his or her superior right to custody.99
Kentucky‘s appellate courts have recognized two circumstances that constitute a knowing and voluntary waiver of a parent‘s superior right to custody. Van Wey v. Van Wey106 and Boatwright v. Walker107 held, respectively, that once (1)
Here, based on the undisputed material facts in this case, we conclude that Moore and Dorning waived their superior rights to custody of Justin. Although their consents to Justin‘s adoption were held invalid because of their mistaken belief that they had until the TPR hearing to withdraw them, the consents were otherwise voluntarily and knowingly signed by them. Their mistake as to when they could revoke their consent was cured when the trial court, in effect, allowed them to revoke their consents to the adoption. But the fact remains that Moore and Dorning voluntarily signed consents with the knowledge and the intent that the consents would facilitate Justin‘s adoption. That was their intention when they signed the consents and it was their intention when they signed the petition to terminate their parental rights. Even if they had effectively revoked their consents within the statutory twenty-day cut-off period, under the circumstances of this case, we would hold that Moore and Dorning had waived their superior rights because they contacted the Asentes, not once but twice (and on occasions that were several months apart), about the adoption. This was neither a spur of the moment nor a coerced decision by Moore and Dorning. They signed the necessary forms for Justin‘s placement with the Asentes for the express purpose of his adoption by them, and when placement was finally approved, they delivered Justin to the Asentes. At that time, the intentions of Moore and Dorning to permanently change the legal custody of Justin to the Asentes were clearly defined.109 Moore and Dorning were unquestionably and knowingly proceeding with a course of action that would result in Justin being considered for purposes of inheritance and succession and for all other legal considerations, the natural child of the [Asentes], the same as if born of their bodies, and terminating all legal relationship [s] between [Justin and Moore and Dorning].110 Thereafter, they voluntarily and knowingly signed a petition for the termination of their parental rights and for the transfer of custody to the
IV. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals‘s holding that the trial court properly exercised jurisdiction in this case, but reverse its holding as to the merits of the underlying custody action. We remand this matter to the Kenton Circuit Court for it to determine, based on Justin‘s best interest, whether custody of Justin should be vested in Moore and Dorning or the Asentes.
All concur.
WINTERSHEIMER, J., also concurs by separate opinion in which GRAVES, J., joins.
Concurring opinion by Justice WINTERSHEIMER.
I concur with the result achieved by the majority opinion, but I wish to state my additional views separately.
Many judges in the system have agonized over this case and sincerely applied their very best efforts to this matter. There may be genuine disagreement as to the law applicable to any set of facts. Judges and legal authorities of good will can legitimately disagree. The law is not a stagnant body of ancient wisdom, but rather a growing and developing tool used to govern our daily conduct in contemporary society with fairness and impartiality. Although caution must always be employed in applying the standard to individual circumstances, the application of the best interest of the child standard here is a positive step in the right direction.
GRAVES, J., joins this concurring opinion.