*1 Vinson, and Don Mabel VINSON Husband, Appellants,
Her SORRELL, Appellee.
David G.
No. 2002-SC-1012-DG. Kentucky.
Supreme Court of
June *2 Kendall, Jr., tucky. Greenup County during in Lyon, Lyon & While James W. Greenup, Appellants. Counsel for 1999, began spending of the summer S.V. periods of time with her mater- extended Hall,
Roger Hughes, Catherine C. W. Don and Mabel Vinson grandparents, nal P.S.C., Williams, Latherow, Hall & Ash- ‘Vinsons”). (the land, Appellee. Counsel for The filed a Motion Vinsons Verified THE BY OPINION OF COURT alleging that custody August of 2000 CHIEF JUSTICE LAMBERT. custodian, an unfit but Pamela was The issue here is whether the natural identify required David motion did not as custody father of the child whose is the 25, 2001, January On KRS 403.480.1 subject litigation superi- of this waived his to in the cus- was allowed intervene David to or 27, 2001, action, he February and on tody we do not believe the clear evidence. As custody and visitation of filed a motion for met, convincing evidence standard was S.V. of the of we affirm the decision Court Appeals. to David’s response The filed a Vinsons pertinent The facts of this difficult cus- motion, that he was unfit to alleged tody presented are below. S.V. was battle custody of S.V. and that his visitation have 21, mother, January born on 1993. Her ... temporary [should] “on a basis be father, Vinson, her David Sor- Pamela overnight.” April supervised and not On rell, prison met in a van as were 3, 2001, custody hearing was held before halfway traveling respective to their hous- Relations Commissioner the Domestic They together years for several es. lived (DRC) The Greenup of the Circuit Court. Cincinnati, married. No- but never Pamela’s “verified determined that DRC
vember of David left Cincinnati and drug problems, and continued alcohol separated from Pamela. From the time difficulties as outlined along with her other until he left Cincinnati October above, compelled for the are the basis regular monthly made David unfit and not suitable finding that she is required payments though even it was being the custodial for the trust by a court order. Pamela and S.V. subse- made No of unfitness was Greenup County, Ken- quently [S.V.]” moved to (c)He any party person not a knows 1. KRS 403.480 is as follows: custody physical proceedings who has (1)Every party custody proceeding in a in his claims to have or of the child or pleading first or in an affidavit attached pleading give respect rights shall information under to the child. visitation with address, the child's (2) any oath as to of the above If the declaration as to places the child has lived within where declarant items is in the affirmative the (5) pres- years, last five and the names give information under shall additional persons of the with whom the ent addresses required by court. The court oath during period. In this child has lived as to may parties under oath examine the every party pleading or affidavit shall fur- and as furnished details of information declare under oath whether: ther pertinent the court's other matters witness, (as (a) participated party, He has disposition the case. jurisdiction and the any any capacity) other or in other (3) continuing duty in- Each litigation concerning custody proceeding any form the court of state; any child in this or other same any concerning the child in this other or (b) any custody pro- He has information dur- obtained information state of which he concerning pending ceeding the child ing proceeding. state; any of this or other of S.V. DRC found and the Court of The respect to David to the on granted be Vinsons as follows: “The trial so noted ” intervening petitioner’s “the grounds that .... find to be unfit court did not David time from the [S.V.] lack of contact with 6, 2001, circuit court en- April On area in 1996 she moved to this *3 granting temporary an order David tered superior a waiver of his present constitutes weekend every visitation with S.V. other father, biological the custody to as right Friday evening Sunday evening. until from Shifflet, Ky., 891 S.W.2d Shifflet 3, 2001, May report filed a On the DRC (1995) that was The DRC found S.V. [ ].” custody that to recommending be awarded with the in a stable home environment pointed Mabel and Don Vinson. The DRC that it in her best inter- and was Vinsons “solely lived and continu- out that S.V. has to them. On custody ests that be awarded Vinsons, ously” that David with the 18, 2001, confirmed the June jail serving trafficking admitted to time for in full. report DRC’s proceeding, cocaine. this David denied 1, 2002, Ap- of the Court On November any drug involvement from the time of his unpublished opinion re- peals rendered an in 1992. The found that release DRC “trial versing grounds on the infrequent sporadic David had contact his finding that David had waived court’s amounting to to 4 annual visits about 3 custody sup- was not superior right to May from 1996 to of 2001. The S.V. convincing evidence ported by clear and findings remainder of the are as DRC’s custody to the and that the award of Vin- follows: of discretion.” The sons was an abuse also Appeals Court of remanded respondent The his fian- now lives [with] pro- that further trial court with orders cé and has fathered another child out of including an award ceedings be conducted wedlock. He states that intend to David, rights to of visitation be married and that this would be Pamela, support child from Pamela home into which he requesting discretionary review granted David. We care, placed [S.V.] be under Appeals. of the decision of the Court and control. The is uncontra- dicted, intervening peti- that while the trial argue that Appellants respondent together tioner and lived should be reinstated on court’s decision there were several documented incidents (1) was following grounds: The evidence respondent of domestic violence. The convincing in the circuit court pled guilty further admits that he right superior David waived his recently ago episode as six to an months (2) cannot custody, reviewing of domestic violence with his findings its of fact for those substitute he lives. The girlfriend Sorrell, with whom now Appellee, court. David intervening petitioner paid has some counters Court (1) respondent during their four support following grounds: on the be affirmed although there is year separation, or five evi There no clear and (2) apparent requiring right, court order same no of his dence waiver years. The child him with the past Appellants over the several failed to serve little, very any, temporary if ex- spent petitions emergency for [S.V.] (3) August Appellee respondent tended visitation with the filed until from 1996 daytime paid regular visi- other than some occasional (4) Appellee pending had a late tation in this area. stances, that standard as Appellants filed and described motion for visitation when follows: custody August of 2000. “phrasing states that McCormick a funda Parents of a child have jurisdictions has not become within most mental, basic and constitutional ‘preponder- is the as standardized as raise, for, child care and control their own formula,” high degree ance’ and that “no Asente,3 this court ren.2 Moore v. precision can be obtained these non-parent may pursue examined how adjectives.” He concludes groups custody. non-parent When a does that the best formulation of the various of de statutory meet standard facto express used to terms have been custodian,4 custo non-parent pursuing trier of fact concept is that dy prove following two either *4 truth of the persuaded that the “must be right or exceptions superior to a parent’s ” (Cita- ‘highly probable.’ contention is (1) custody: entitlement to that the Omitted). tions convincing by is shown clear and evidence (2) custodian, to be an unfit or that the of that where the “burden We conclude superior right has waived his or her requires proof by clear and persuasion” convincing to clear and evid evidence, convincing concept the relates ence.5 attitude anything than else to an more evidence, Burns,6 weighing approach In v. this Court examined or Fitch a formula that can legal rather than to convincing the clear and evidence standard Like natural defined words. custody dispute precisely in a between the be doubt,” a reasonable posses “proof beyond who had grandparents father and Fitch, convincing evi- “proof by clear sion of the child. any a definition incapable re dence” is did not indicate the exact standard of than the words precise ór applied, sug but there were more detailed view that was say that evi involved. It suffices gestions preponderance party with the approach requires the applied.7 The court dence standard produce evidence convincing proof burden of held that the clear and evidence than a substantially persuasive more under those eircum- required standard was of, Collinsworth, 329, for, supporter a child who Ky., and financial 2. Davis v. 771 S.W.2d (1989) person period a resided with the for (noting States has '‘[t]he 330 United (6) is under months or more if the child recognized parents six Supreme has (3) fundamental, age period years of and for a constitutionally three have basic (3) (1) year more if the child is three one or protected rights to their own children raise by (and age placed years of or older or has been by persons we any attack third and that Community Department Based Ser- for grandparents category) would include in that legal a Any period of time after right vices. seeking abrogate must show un- by par- a proceeding been commenced convincing evi- fitness ‘clear regain custody child seeking ent ”)(Emphasis original). dence.’ determining wheth- be shall not included person resided with er the child has 3. Id. period. required minimum provides: 4. KRS 403.270 Asente, 110 S.W.3d 5. Moore v. 405.020, chapter and KRS (2003). As used in this otherwise, requires "de unless the context person who has Ky., facto custodian” means 782 S.W.2d evi- been shown caregiver 7. Id. primary dence to have been the evidence, quality of care and gardless preponderance of but be- A short term visit bonding that follows. yond a reasonable doubt.8 be delivery possession shall not or bar, case at the best interest of the knowing and volun proof construed as appears test to have been the deci- tary has occurred. waiver and con- sional basis rather than the clear in cus- vincing required evidence standard non-
tody disputes parents between par- proof constitutes What parents. ent, unsuited to the proved is not who thoroughly dis- Greathouse Shreve9 (KRS 405.020(1)), has waived trust voluntary the issue of and inten- cussed right or her custodial right to parent’s superior tional waiver of a challenged by non-parent? As right custody. This Court first discussed the above, proof of a requires waiver stated following definition of waiver: or re- “knowing voluntary surrender legal The common definition of a waiver Be- right.” of a linquishment known voluntary it is a and intentional is that both constitu- cause this is a relinquishment surrender or of a known statutory underpinnings, tional forego an an advan- right, or election to clear and con- proof of waiver be *5 option might the at his tage which such, no formal or vincing. As while upon.10 have demanded or insisted required, is statements written waiver in analysis This Court an extended exam- must be supporting circumstances following requirements ined the of a volun- waiver to meet equivalent express to an tary and intentional waiver: proof.11 the burden believe the issue as to whether Bob
We unfit parent a is Without by to a Greathouse’s conduct amounted evidence of or without clear “voluntary and intentional surrender or pa- voluntary surrender knowing a (Bark relinquishment right” of a known custo- is entitled to rights, rental Coal, quoted supra) er v. raises Stearns dy.12 the complex questions serious and about the DRC and The recommendation of in acquiescence nature of the father’s to dem- of the trial court fail the decision grandmother, the and about expressly or onstrate that David Sorrell acquies the extent and duration of such parental intentionally relinquished his cence, upon all of which bear whether child. law of his Case principle apply the waiver allowing S.V. to clearly demonstrates that, recognize present, here... We at and David’s grandparents with her live grandparents in usual circumstances upbringing in participation S.Y.’s sporadic realize, in grand when take express waiver.13 does not constitute for, to care agreeing child to care part in on relied temporary arrange The Court grandchild for a Spain’s forth in Justice ment, custody, re the factors set not a surrender of 11. Id. at 390-91. 8. Id. 387, (1995). Ky., S.W.2d 390
9. 891 451, Morales, Ky.App., 51 S.W.3d 12. v. Diaz 454 (quoting Barker v. Stearns Coal & 10. Id. at 390 Co., Ky. 163 S.W.2d Lumber Greathouse, at 390. (1942)). 891 S.W.2d concurring opinion findings set aside court’s Shifflet Shifflet.14 length findings clearly Those factors are of time-the child those are To erroneous.16 away parent, findings clearly has been from the circum determine whether are er roneous, separation, age stances of of the child must focus on courts reviewing non-parent, findings when care was the are supported assumed whether those substantial evidence.17 In Moore v. Ase elapsed parent sought time before the nte,18 child, frequency claim the nature Court defined substantial evi contact, any, if between the dence as follows: during non-parent’s custody.15 the child “[SJubstantial “[e]videnee evidence” is factors, Applying these of Ap Court accept that a mind would reasonable peals noted that while David did not visit adequate to a conclusion” and support significant periods, with S.V. for he at that, evidence when “taken alone or tempted some visits. There was evidence evidence, light of all the ... has that the Vinsons thwarted his efforts and to induce con- probative sufficient value agreeable Pamela was not to David viction in the of reasonable men.” minds visiting with S.V. evidence, conflicting Regardless of evidence, or the fact that weight A of the weighs factor that David’s favor is reached reviewing court would have paid that he without a court contrary finding, regard “due shall be years. order for about four The Vinsons trial given opportunity sought custody August only of 2000 and judge credibility court to wit- elapsed payment. a few months without credibility judging nesses” because living S.V. had been with the Vinsons for are only weighing of witnesses and sought two months before David Moreover, province tasks within the exclusive custody. intervene and obtain *6 Thus, the trial court. doubt as pending “[m]ere David had a motion for visitation finding not [will] to the correctness of [a] when the Vinsons filed for Au- reversal,” justify appellate wholly gust [its] of 2000. These actions are trial court courts should not disturb supe- inconsistent with a waiver of David’s by substan- findings supported that are right rior of his child. (Citations omitted).19 tial evidence. attempts From the evidence of David’s to obtain visitation rights underlying Upon review of the evidence daughter, experi- his the difficulties he adopted by findings of the DRC her, in establishing court, enced contact with trial the Court of agree we with regular payment support, his of child it substantial evi- Appeals that there was not that expressly requirements cannot be said he waived his stringent dence to meet the right custody. of waiver. Finally, may claim we not consider response Appellants’ Al parent.
that
its whether David was an unfit
the Court
substituted
unfitness,
court,
no
findings
though
alleged
for those of the trial
we
the Vinsons
court,
in the trial
reviewing
finding
note that a
court is entitled to
such
was made
14.
15. Id. at 397. 19. Id. at 353-54.
16. CR 52.01.
Moore,
waiver issue in the trial court invites majority’s assumption
cial waste. The of un-
that there was insufficient evidence
fitness or that the Vinsons abandoned the
claim is unfounded. At the trial court
level, that “[Pamela’s] it was determined drug and continued alcohol and verified LWD, EQUIPMENT, INC., and LWD problems along with her other difficulties Appellants/Cross-Appellees, Inc. [including felony outlined 4-5 above convictions, depression, bi-po- manic drug disorder, lar and a incident substantiated CABINET, Commonwealth REVENUE are the neglect regarding S.V.] of child Kentucky, Appellee/Cross- finding that she is compelled for the basis Appellant. being
unfit and not suitable for the trust 2002-SC-0329-DG, No. The trial custodial of [S.V.].” 2003-SC-0318-DG. court further found that David admitted cocaine, serving trafficking time for Kentucky. Supreme Court evidence of do- there was uncontroverted *8 17, 2004. June David and S.V.’s mestic violence between mother, Pamela, together, lived episode was a recent there David and his
domestic between violence he shares a girlfriend
current with whom to move S.V.
home to which he intends case,
When, there ex- as to the fitness legitimate question
ists seeking custody, the court has
of a