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Krieger v. Garvin

Supreme Court of Kentucky

September 26, 2019

DONNA KRIEGER AND TERRY GARVIN APPELLANTS
v.
TAMARA D. GARVIN, ASHLEY GARVIN AND KURT KNIFKE APPELLEES

          ON REVIEW FROM COURT OF APPEALS CASE NOS. 2015-CA-001819-ME AND 2015-CA-001820-ME JEFFERSON CIRCUIT COURT NO. 14-CI-503666

          COUNSEL FOR APPELLANTS: Jacqueline M. Caldwell Louisville, KY

          COUNSEL FOR APPELLEE TAMARA D. GARVIN: Ray H. Stoess Jr. Louisville, KY

          COUNSEL FOR APPELLEE ASHLEY GARVIN: Ashley Garvin, pro se Louisville, KY

          COUNSEL FOR APPELLEE KURT KNIFKE: Kurt Knifke, pro se Louisville, KY

          OPINION

          WRIGHT JUSTICE

         This case involves a minor child, K.R.K., and whether her maternal grandfather and his girlfriend, in whose custody K.R.K. has been since she was eight months old, may be considered her de facto custodians pursuant to KRS 403.270.

         I. BACKGROUND

         On May 8, 2014, in a temporary removal hearing, the Jefferson Family Court awarded temporary custody of eight-month-old K.R.K. to her maternal grandfather, Terry Garvin and his long-term girlfriend, Donna Krieger, with whom he cohabitated. On June 19, 2014, K.R.K.'s mother, Ashley Garvin, stipulated that K.R.K. was at risk of abuse or neglect and the family court ordered temporary custody was to remain with Terry and Donna. On November 26, 2014, K.R.K.'s maternal grandmother, Tamara Garvin, filed an action seeking custody or, in the alternative, grandparent visitation. On December 17, 2014, Terry and Donna responded to Tamara's petition and filed a cross-petition asking the family court to find them to be K.R.K.'s de facto custodians.[1]

         The family court conducted a hearing on the pending issues related to K.R.K.'s custody and Tamara's petition for grandparent visitation on June 23, 2015. The family court issued its Findings of Fact, Conclusions of Law, and Order on September 10, 2015, finding that Terry and Donna were K.R.K.'s primary caregivers and financial supporters, naming them as K.R.K.'s de facto custodians, and awarding them sole permanent custody. The family court also awarded Tamara grandparent visitation with K.R.K. pursuant to KRS 405.021. Tamara and Ashley appealed to the Court of Appeals, which reversed, holding that the family court erred in naming more than one individual as K.R.K.'s de facto custodian. It did not address any of the parties' remaining issues, declaring them moot, and remanded to the family court.

         Terry and Donna sought discretionary review from this Court, which we granted. This appeal followed. We now reverse the Court of Appeals for the following reasons.

         II. ANALYSIS

         KRS 403.270 provides, in pertinent part:

(1)(a) As used in this chapter and KRS 405.020, unless the context requires otherwise, "de facto custodian" means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to ...

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