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Turner v. Hodge

Court of Appeals of Kentucky

November 8, 2019



          BRIEF FOR APPELLANT: Barry Birdwhistell, Elizabethtown, Kentucky.

          BRIEF FOR APPELLEE RYAN SCOTT HODGE: Carol B. Meinhart, Radcliff, Kentucky.



          LAMBERT, JUDGE:

         In this child custody action, Deborah Turner appeals from the January 8, 2019, opinion and order of the Hardin Family Court denying her request to be named the de facto custodian of R.M., the child at issue. We affirm.

         R.M. ("the child") was born in March 2005 and is the biological daughter of Ryan Scott Hodge ("the father") and Nakia Murphy ("the mother"), who never married. The father's paternity was determined by DNA testing as set forth by summary judgment in a separate case in 2015.[1] A child support order was entered the same day in that case, ordering the father to pay $675.00 per month in support. Deborah Turner believed for many years that her son Jeffrey was the child's father, and the child lived with her in some capacity at various times until 2017. In September 2017, the father filed a petition for custody, naming the mother as the only respondent. He did not name or serve Turner with the petition. The father sought primary custody and control of the child, stating in an attached affidavit that the mother had been using drugs and drinking and that she was incapable of caring for the child. She had recently sent him a text message stating, "I am about to bring your daughter to live with you fed up." By temporary agreed order entered October 3, 2017, the family court ordered the parties to have temporary joint care, custody, and control of the child with the parties sharing equal parenting time. After some issues with exchanges, the court entered an order the following month setting forth that the parents were to exchange the child every Friday at 5:30 p.m. at the Elizabethtown Police Department. A hair follicle drug test on the mother in January 2018 was positive for cocaine.

         On June 8, 2018, Turner moved to intervene in the custody action and sought to be designated as the child's de facto custodian. She claimed to have been the child's primary caregiver and financial supporter for thirteen years, from her birth until May 2018, when the child was placed with the father.[2] She explained that the mother had told everyone that Turner's son Jeffrey was the child's father until she identified her actual father. Turner alleged that no one had paid her any child support and that the father had only seen the child once or twice before the Cabinet placed the child with him. She claimed that the child had been with her since birth because the mother was unstable and had drug issues, her son had been incarcerated in Virginia, and the father was also incarcerated. Turner sought permanent custody of the child. By separate motion, Turner sought temporary custody of the child. The court permitted Turner to intervene by order entered September 14, 2018.

         The family court held a hearing on Turner's motion to be designated as a de facto custodian on September 21, 2018. Turner testified that for more than eleven years, she thought her son was the father of the child. She said the child stayed at her home overnight four or five days a week. The child began staying with her all the time when the mother went into rehab in 2006. That lasted for almost two years through 2008. After that, the child was with her mother sometimes, maybe a couple of days per week, then back with Turner. At the time of the hearing, the child was in eighth grade. The child lived with Turner from the time she was in kindergarten and through the fourth grade. The child began staying more with her mother in seventh grade. At that time, she stayed with the mother a couple of days a week, and she spent the rest of the week with Turner or her son, Jerry. This went on until the child was placed with the father in May 2018, after the mother failed a drug test. Turner testified that she had the child in her home until May 7, 2018.

         Turner testified that she was the primary caregiver and financial supporter of the child from 2006 through August 2017. In August 2017, Turner and the mother began splitting time. Her son Jeffrey, whom she believed to be the father of the child, had been incarcerated in 2004 for eight years, meaning that he could not care for the child. The mother had given Turner $400.00 three times over the twelve-year period. No one else had given her money to take care of the child.

         On cross-examination, Turner said that she had the child with her most of the time during the mother's custody weeks; the father had the child on his weeks, although he would let Turner have the child on his weekends from time to time. The child would spend maybe a day at her son Jerry's house every once in a while. She knew in 2015 that the father was in the picture and was visiting with the child, but she did not know how many times he saw her. Prior to 2015, she did not know about the child's father.

         Jennifer Ford testified next. She was a teacher at Woodland Elementary, and the child was her fifth grade math student. She also knew Jerry through coaching. Turner and Jerry appeared for open houses and activities. She would also see the mother at the school for events; the mother had a younger child at the school as well.

         Jatoria Broughton was the last witness to testify. She is a middle school teacher in Louisville and has known Turner since 2003. Her husband and Turner's son Jerry are best friends. She and Turner were close, and she considers Turner to be her aunt and the child to be her niece. Ms. Broughton said the child lived in Turner's home a lot of the time from the time she was born or at Jerry's home. The child spent time at her home as well. Turner provided clothing, shoes, and basketball equipment for a decade. The child also spent a lot of time at Jerry's house and would spend the night at his house with Ms. Broughton's daughter on a regular basis. Jerry would do basketball drills and run with them for training. This would happen two or three times per week, although at times it would be every morning. Jerry would also take the girls to school after early morning practices and provide dinner for them. He would pay for basketball shoes and equipment. Ms. Broughton said "everybody would be on top of" everything the child needed. She could not dispute that the child stayed with the mother a couple of days a week. She said Jerry was not around while in college from 2004 to 2008.

         Following the hearing, the parties filed briefs on the issue of whether Turner's status as a de facto custodian followed her through September 2018. The father specifically argued that Turner and the mother had hidden from him that the mother had abdicated her role as parent and that he had been ...

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