Opinion
NO. 2013-CA-000400-ME
01-31-2014
DEWAYNE WHITE AND BECKY WHITE APPELLANTS v. DAVID CARTER AND AMANDA CARTER APPELLEES
BRIEF FOR APPELLANTS: Travis B. Lock Bowling Green, Kentucky BRIEF FOR APPELLEES: David Goin Scottsville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 12-CI-00234
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND VANMETER, JUDGES. VANMETER, JUDGE: Becky and DeWayne White appeal from the final judgment and custody decree of the Allen Circuit Court which awarded sole custody of the Whites' two minor children to David and Amanda Carter. For the following reasons, we affirm.
In May 2011, the Whites' two children were removed from their home and placed in the care of the Carters. At the time of removal, active methamphetamine labs were found in the Whites' home and both parents were arrested. On May 17, 2011, temporary custody of the Whites' children was awarded to the Carters. At that time, one child was two years old, and the other child was two months old. The Whites subsequently pled guilty to manufacturing methamphetamine and to two counts of wanton endangerment involving the two children.
Upon motion by the Carters, the trial court designated the Carters as de facto custodians of the Whites' children, per KRS 403.270(1). Thereafter, the Carters filed a petition for permanent custody of the children. Following a trial, the court awarded the Carters sole custody of the children. This appeal followed.
Kentucky Revised Statutes.
On appeal, the Whites argue (1) the Carters lacked standing to pursue custody of the children, (2) the trial court erred in designating the Carters as de facto custodians of the children, and (3) the trial court abused its discretion in awarding sole custody of the children to the Carters. We disagree.
With respect to standing, a person designated as de facto custodian enjoys the same standing as a parent in custody matters. KRS 403.270(1)(b). Because the Carters were designated as de facto custodians, they had the right to petition the court for permanent custody of the children. Furthermore, the record supports the trial court's decision to designate the Carters as de facto custodians per KRS 403.270(1)(a).
The court found that the children had lived with the Carters since May 2, 2011, and the Carters have had temporary custody of the children since May 17, 2011. The court found by clear and convincing evidence that between May 2, 2011, and October 22, 2012, when Becky White filed a motion for the return of the children, the Carters were the primary caretakers and primary financial providers for the children, a period of time which is more than one year for the older child and more than six months for the younger child. During that time, the children were cared for and nurtured exclusively by the Carters. The Whites provided no financial support for the children during that time. As a result of these findings, the court designated the Carters as de facto custodians of the children pursuant to KRS 403.270(1)(a). Based on the record, we are unable to say this decision was erroneous.
We also agree with the trial court's decision to award sole custody to the Carters. In determining custody, the trial court was obligated to consider the best interests of the children and give equal consideration to each parent and the de facto custodians. KRS 403.270(2). That statute provides a number of factors for the court to consider in making this determination, including the interaction between the children and their parents/de facto custodians; the children's adjustment to their home and community; the extent to which the children have been cared for, nurtured, and supported by their de facto custodians; and the circumstances under which the children were placed with their de facto custodians. The parents' wishes with respect to custody, while appropriate to consider, are not binding on the court. Squires v. Squires, 854 S.W.2d 765, 768 (Ky. 1993).
KRS 403.270 permits the court to grant sole or joint custody, depending on which arrangement would be best for the children. The analysis required for a custody determination, whether sole or joint, is the same. Squires, 854 S.W.2d at 768. In either arrangement, the court shall consider the factors set forth in KRS 403.270 and the children's best interests, as well as "look beyond the present and assess the likelihood of future cooperation" between the parties requesting custody. Id. The court is afforded broad discretion in deciding custody matters. Id. at 770.
Thus, the fact that the Carters' petition for custody requested joint custody, rather than sole, is irrelevant. The court's analysis and duty to determine which custody arrangement would best suit the children's interests is the same, regardless of the parties' requests. Squires, 854 S.W.2d at 770.
In this case, the record shows that the trial court properly considered the relevant statutory factors, including the children's best interests, and the likelihood for future cooperation and communication between the parties. The court found that while the Whites had made progress in completing their case plans with the Cabinet and anticipated having their children returned to them, under the factors set forth in KRS 403.270, the children's best interests are served if they remain in the Carters' custody. The court found that the children enjoy a close relationship with the Carters; live in a safe, stable, comfortable and loving home; are well-adjusted to the home and their community; and have integrated into the Carters' extended families. The court determined that the children should continue to benefit from the stability of care and support they have received from the Carters since May 2011.
The trial court considered awarding joint custody, but decided against it. In making its decision, the court took into account the fact that joint custody requires the ability to communicate and cooperate to make joint major decisions. The court found that, so far, the Whites and Carters have had no working relationship regarding the children, and to expect one to develop in the future would be unreasonable. Under the circumstances of this case, the court's decision to award sole custody of the children to the Carters was not an abuse of its discretion.
The court did grant the Whites visitation rights with their children from Mondays at 7 p.m. until Wednesdays at 9 a.m.
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The final judgment and custody decree of the Allen Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS: Travis B. Lock
Bowling Green, Kentucky
BRIEF FOR APPELLEES: David Goin
Scottsville, Kentucky