Released for Publication March 13, 2014.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-000555-MR. GREEN CIRCUIT COURT NO. 10-CI-00022.
COUNSEL FOR APPELLANTS: James Lee Avritt, Jr.
COUNSEL FOR APPELLEE: Elmer J. George.
Minton, C.J.; Abramson,
Cunningham, Noble, and Venters, JJ., concur. Keller, J., not sitting.
REVERSING AND REMANDING
Appellants, Scott and Melissa Coffey, sought custody of two minor children after their mother's death, which a Green County Circuit Court ultimately awarded them. Appellee, James Wethington, the children's biological father, appealed the court's decision. The Court of Appeals vacated the trial court's judgment with instructions to dismiss Appellants' custody petition on the grounds they lacked standing according to KRS 403.800, et seq . Appellants thus petitioned this Court for discretionary review on the issue of standing, which we granted. After a complete review of the record and applicable law, we now reverse the decision of the Court of Appeals.
Appellee and Joann Wethington were married and had two children. The couple divorced in April 2001, and the terms of the divorce settlement provided that the parents were to have joint custody of their children, with Joann designated as " primary residential custodian." Appellee was granted visitation every other weekend, four weeks during the summer months, and extended visits during holiday breaks.
However, during the next five years, Appellee admits that he did not visit with his children on a consistent basis, only seeing them once or twice a summer and for a couple of hours on Thanksgiving and Christmas. Appellee also failed to maintain contact by phone, only calling the children on the day he intended to pick them up.
As of Joann's death on January 23, 2010, Appellee acknowledges that he had not seen his children in thirteen months. Both children admit that their relationship with their father is " not good at all," and that they also do not have any type of relationship with his extended family. However,
they do have a very close relationship with their maternal grandmother, as well as aunts, uncles, and cousins on their mother's side.
Appellants, who are Joann's nephew and his wife, were awarded emergency custody of the two children after Joann's death. Social worker Christie Huddleston filed a petition alleging that the children were dependent on Appellants " due to the sudden death of their mother and due to their father's whereabouts being unknown at [the] time." Although Appellee appeared on January 25, 2010, for a temporary removal hearing, the court entered a " Temporary Custody Order" continuing Appellants' custody of the children.
Thereafter, the Department of Community Based Services (DCBS) was ordered to perform a " Relative Home Evaluation" for both parties. The evaluation for Appellee was quite unfavorable, and thus, the DCBS did not ...