Opinion
NO. 2016-CA-000899-ME
04-28-2017
STEPHANIE WHITE APPELLANT v. JAMES HUFF; MICHAEL AND ANGELA WHITE APPELLEES
BRIEF FOR APPELLANT, STEPHANIE WHITE: Russell D. Alred Harlan, Kentucky BRIEF FOR APPELLEE, JAMES HUFF: William D. Tingley Louisville, Kentucky BRIEF FOR APPELLEES, MICHAEL AND ANGELA WHITE: No brief filed.
NOT TO BE PUBLISHED APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 12-CI-00679 OPINION
AFFIRMING IN PART; REVERSING IN PART; AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, DIXON, AND NICKELL, JUDGES. NICKELL, JUDGE: On April 28, 2016, the Harlan Circuit Court entered a judgment giving joint custody of two minor boys to Stephanie White (Stephanie) and James Huff (Huff). Stephanie is the natural mother of both boys—A.W., born in 2006, and E.H., born in 2009. Huff is the biological father of E.H. The identity of A.W.'s biological father is unknown. Although unrelated to A.W. by blood, Huff is the only person A.W. has ever known as "dad." The court determined Huff had standing to seek custody of A.W. as a person "acting as a parent," but did not qualify as a de facto custodian—nor did anyone else. Stephanie opposes Huff having custody or even visitation with A.W. On June 6, 2016, the trial court denied Stephanie's motion to alter, amend or vacate the judgment. Three days later, the trial court amended the order of denial to correct a hearing date mentioned in the prior order. Stephanie now challenges the judgment and the two orders arguing: the trial court did not make findings about the "best interests of the child" factors listed in KRS 403.270; had the court fully considered those factors, it would have awarded her primary custody of E.H. and sole custody of A.W.; and, Huff lacks standing to have custody of A.W. Upon thorough review of the record, the briefs and the law, we affirm the trial court's determination of Huff's standing to seek custody of A.W. as a person "acting as a parent," but otherwise reverse and remand to the trial court for specific findings of fact and conclusions of law pertaining to the factors mentioned in KRS 403.270 as required by CR 52.01 and discussed in Anderson v. Johnson, 350 S.W.3d 453, 457-59 (Ky. 2011).
Pursuant to Court policy, the children will be referenced by initials only.
Kentucky Revised Statutes (KRS) 403.800.
Kentucky Rules of Civil Procedure.
FACTS
Stephanie met Huff while A.W. was in utero. In March 2007, about three months after giving birth, Stephanie and A.W. moved into Huff's trailer in Bledsoe, Kentucky, where the trio lived as a family. Though never married, Stephanie and Huff subsequently conceived a child, resulting in the birth of E.H. in 2009.
In October 2012, Stephanie moved out, taking both boys with her, and returning to the home of her parents, Michael and Angela White ("the Whites"), who are also named as appellees in this action. Shortly thereafter, Stephanie was admitted to a psychiatric unit after experiencing severe hallucinations while trying to free herself from drugs. During this time, Huff obtained emergency custody of the boys, prompting the Whites—who were concerned about drug abuse by both Stephanie and Huff—to petition for custody of both boys in November 2012, naming Stephanie and Huff as respondents. In December 2012, all parties—including Stephanie—executed an agreed order giving the Whites temporary custody of A.W. and giving Huff temporary custody of E.H. Additionally, the Whites were granted visitation with E.H. and Huff was granted visitation with A.W., with the proviso that the boys remain together during visits. Stephanie was permitted supervised visitation. She would later move for unsupervised visitation and ultimately sole custody of both boys.
In her amended notice of appeal, Stephanie named her parents as appellees to provide them notice. The trial court stated in the judgment the Whites had admitted petitioning for custody "as proxies for Stephanie." Determining neither Michael nor Angela qualified as a de facto custodian, the trial court dismissed their claims. Neither has appealed that determination nor participated in this appeal.
These orders are referenced in the record before us, but were not located in the record.
In June 2014, alleging Huff was being prescribed extreme amounts of Oxycodone, Methadone and Ambien, Stephanie moved for temporary custody of E.H. and suspension of Huff's visitation with A.W. Huff answered the motion by noting he had been prescribed medication for herniated discs since May 2011—a fact Stephanie had known throughout the custody proceedings, but still signed the agreed order in 2012 giving him sole temporary custody of E.H. and visitation with A.W. Huff then moved for custody of A.W., characterizing himself as a person "acting as a parent," and noting he had exercised emergency custody of both boys from October 2012 until entry of the agreed order in December 2012. Huff also moved to prevent Stephanie from having contact with either child, alleging she was not taking psychiatric medications and had stopped seeing her psychiatrist.
A trial was conducted by the Domestics Relations Commissioner (DRC) who heard testimony on three separate days. Stephanie called Huff as her first witness. Huff testified he is a registered nurse. He admitted stealing Demerol from a hospital at which he worked and buying Hydrocodone from drug dealers. He admitted having been a drug addict and going through rehabilitation. In 2007, he was discharged from Harlan ARH Hospital for refusing to provide a random drug sample. At some point he was prescribed Hydrocodone. On December 2, 2009, Huff completed KARE—Kentucky Alternative Recovery Effort—a five-year non-disciplinary, therapeutic monitoring program offered by the Kentucky Board of Nursing. He claimed he took no drugs while participating in KARE and attended twelve-step meetings.
Huff testified he was in a car accident in 2006 or 2007 and has had significant back pain ever since. Huff has worked at Pineville Community Hospital since 2010. He is described as an excellent employee and was recently promoted to supervisor of the geriatric psychiatric ward.
In September 2015 (after proof heard by the DRC had closed), Huff underwent a right L4 hemilaminectomy and L4-5 discectomy. In the wake of the surgery, he takes less medication than previously prescribed. While Huff lives in Bledsoe, his treating physician practices in Smyrna, Tennessee, a one-way drive of more than four and one-half hours. Huff makes the drive to Smyrna monthly to refill prescriptions for Oxycodone, Methadone, Methacarbamol, and Zolpidem Tartrate.
Huff testified Stephanie was nineteen and pregnant with A.W. when he, then twenty-four, met her as she worked a shift at the Wendy's drive-thru. During their nearly six-year relationship, Huff admitted buying drugs for both of them, and acknowledged Stephanie took some of his medication. At trial, Huff professed he was able to function while taking his prescribed medication, and could not excel as a nurse if the truth were otherwise.
Stephanie testified she met Huff in the fall of 2006, A.W. was born in December of that year, and she and A.W. moved in with Huff three months after giving birth. She described herself as A.W.'s caregiver, and Huff as her "enabler." She said Huff shot up drugs he stole from the hospital where he worked and snorted Methadone and Oxycodone he bought from a drug dealer, sharing both drugs with her. She characterized the nearly six years she lived with Huff as tumultuous, saying Huff was abusive and sometimes physical. Huff was in the KARE program during three years of their relationship. During that time she forged signatures on required KARE documents at Huff's behest.
Stephanie described the night her parents admitted her to a psychiatric unit. She was trying to quit drugs by herself and experienced extreme hallucinations. She was strapped to a gurney and taken to the hospital by ambulance. After being "detoxed," she refused Suboxone—declining to substitute one drug for another. She took her last controlled substance in November 2012. She took random drug tests throughout 2013 and 2014 at her own expense—passing each one.
She completed studies as a medical transcriptionist and worked at the hospital for two years until her job was outsourced. Her instructor and subsequent employer described her as a top performer. Stephanie could have taken other jobs, but chose to continue her schooling, making all A's last quarter at Southeast Community College, where she was recently admitted to the nursing program. She expects to graduate as a registered nurse in two years and plans to continue living with her parents—at least until finishing nursing school—and believes she is fully recovered from her drug addiction.
Stephanie acknowledged Huff provided housing to her and her sons and lived with them, but denied Huff was ever A.W.'s primary supporter. She confirmed Huff is not A.W.'s biological father, but admitted Huff is the only person A.W. has ever known as "dad."
In addition to testifying to their own past flaws and recent accomplishments, both Huff and Stephanie offered considerable testimony from family, friends, coworkers and acquaintances about the remarkable improvements they have made in their lives. Despite having had significant drug habits, both were portrayed as loving, caring parents with two thriving boys.
In the wake of the hearing, the DRC filed a four-page recommendation saying Stephanie and Huff should be awarded joint custody of E.H., with Stephanie being the primary residential custodian and Huff having visitation with his biological son. The DRC further recommended Stephanie receive sole custody of A.W., with Huff having visitation with A.W. Visits with both boys were to occur simultaneously with one of the DRC's chief goals being to keep the boys together. In awarding Huff visitation with A.W., the DRC wrote:
[t]he Court notes that while James Huff is not the biological parent of [A.W.], the Court is granting him visitation with [A.W.] because James Huff has been in [A.W.'s] life since he was born, and James Huff was also given court-ordered visitation since 2013 by consent of all the parties. The Court will not disturb this relationship.The DRC made no finding on Huff's claim of standing to seek custody of A.W.—not as a de facto custodian, and not as a person "acting as a parent."
Both Huff and Stephanie filed exceptions. Stephanie was fairly content with the DRC's resolution, objecting only to Huff "being awarded visitation with the minor child, A.W." She offered no grounds for her objection.
In contrast, Huff was less than pleased, arguing he was entitled to custody of A.W., and describing himself as a person "acting as a parent" to A.W. who was:
the primary caregiver, and financial supporter of the minor child since the child was born; assuming the role of father to the minor child, and maintaining custody of [A.W.] throughout his life[.]As further support for his desire to receive custody of A.W., Huff wrote he had standing by virtue of:
being a caregiver and financial supporter of [A.W.], assuming the role of father to [A.W.], raising him as his own in all regards, throughout the entirety of [A.W.'s] life, and being the only father [A.W.] knows[.]In his eleven-page Exceptions to Commissioner's Order, Huff identified several flaws in the DRC's draft, including: the date of the agreed order; lack of required findings on the best interests of the children; erroneous findings; application of the wrong standard in awarding custody to Stephanie; no finding on Huff's claimed standing as either a de facto custodian or "person acting as a parent"; and, failure to specify the applicable burden of proof and who shouldered it. In Huff's view, the DRC minimized Stephanie's psychiatric history, inconsistent employment, living with her parents instead of in her own home, lack of involvement in E.H.'s schooling, and lack of a vehicle. He also believed the DRC was completely unimpressed by Huff consistently providing for his family, owning his home, and maintaining a job at which he excels. Huff suggested the DRC gave undue weight to Huff's use of high-powered prescribed medications from a treating physician hours away in Smyrna, Tennessee, when local doctors treat back injuries. There was no testimony Huff currently suffers adverse effects from utilizing prescribed medications.
Huff correctly alleges an absence of findings of fact regarding best interests of the children in the DRC's recommendation. It is also devoid of conclusions of law. We trust these flaws are unique to this case rather than prevalent in Harlan Circuit Court.
Several days later, Huff moved for a new trial, revealing he had undergone back surgery on September 15, 2015, after the trial testimony had concluded. Huff offered documentation of the surgery as proof his need for strong pain medication—a fact of which the DRC seemed skeptical—was valid.
Rather than adopting the DRC's recommendation, the trial court heard oral argument and allowed the parties to tender proposed findings and conclusions. Stephanie was permitted to stand on her previously filed exception if she so desired and she did. Huff, however, filed a thirty-three page document, after which the trial court reviewed the matter de novo, watched all the testimony presented to the DRC, and entered its own Findings of Fact, Conclusions of Law and Judgment on April 28, 2016.
The trial court determined insufficient proof had been offered to establish Huff was A.W.'s primary caretaker and financial supporter since Stephanie's parents had credibly testified they also contributed to the child's financial support. Thus, neither Huff nor the Whites qualified as a de facto custodian. However, citing Mullins v. Picklesimer, 317 S.W.3d 569, 575-77 (Ky. 2010), the trial court found Huff qualified as a "person acting as a parent" because he and Stephanie shared physical custody of A.W. at least eight consecutive months prior to the Whites initiating the custody action on November 20, 2012. According to the testimony, A.W. lived in Huff's home with Stephanie and Huff from about March 2007 (when A.W. was three months old) until September/October 2012, when Stephanie moved out of Huff's home and took the boys with her to live with the Whites. The trial court then found Stephanie waived her superior custodial rights to A.W. as a result of five circumstances: she moved the child into Huff's home; she allowed Huff to treat A.W. as his own son even though she and Huff knew Huff was not A.W.'s biological father; she had a child—E.H.—with Huff, evincing a joint decision to begin a family with Huff which included A.W.; Huff took immediate legal steps to regain custody of both boys when Stephanie moved out of Huff's home; and, Stephanie admitted Huff "is the only person [A.W.] has known as a dad." As a result, the trial court found Stephanie, the two boys and Huff were a family unit with Huff as the father figure.
The trial court's order states, "This action was filed November 12, 2012." We deem this to be a typographical error as all documentation indicates the petition was signed and filed on November 20, 2012.
Stephanie testified she and the boys moved out of Huff's home in late September 2012. Huff's mother testified Stephanie left on October 4, 2012.
Having determined Huff had standing to seek custody of A.W. as a "person acting as a parent" and Stephanie had waived her superior custodial rights to A.W., the trial court next found it was in the children's best interest for Stephanie and Huff to exercise joint custody of both boys with Stephanie being A.W.'s primary residential custodian and Huff being E.H.'s primary residential custodian—essentially the status quo under the 2012 agreed order. Unlike the DRC, the trial court did not deem the boys living together to be of overriding force since they had been living apart the last three years. The court also allowed Stephanie standard visitation with E.H. and Huff the same with A.W. While writing, "[t]he Court finds [the children's] best interests are served by Stephanie and [Huff] having joint custody of both children," the court gave no inkling of the factual basis for such a statement.
Citing only CR 59.05, and no other law, statute or rule, Stephanie filed exceptions, asking the trial court to alter, amend or vacate its order and adopt the DRC's recommendation, or in the alternative, return the matter to the DRC for additional findings. The motion mentions neither the word "standing" nor a lack of required written findings regarding the best interests of the boys or statutory factors. Instead, Stephanie argued the DRC had presided over the trial, was in the best position to judge credibility of the witnesses, and the trial court should not ignore the DRC's work to reach its own "egregious" result.
Family Court Rules of Practice and Procedure (FCRPP) 4(4)(a) describes the authority of the DRC. After hearing evidence, the DRC files a recommendation to which any party may file written objections. Thereafter, the court "may adopt the recommendations, modify them, or reject them in whole or in part, or may receive further evidence or may recommit them for further hearing."
The motion was heard on May 16, 2016. Counsel for Stephanie argued the trial court's finding that Huff "acted as a parent" to A.W. was based on stale evidence because the case had lasted so long. He argued only good things had happened in Stephanie's life since 2012, but Huff had not changed. The court recounted many facts from the bench but reduced none to oral or written findings of fact. The court then stated the last five years demonstrate Huff's drug use has not been a hindrance and while Huff is prescribed a massive amount of medication, no proof of a current drug problem had been offered. In taking the arguments of both sides under advisement, the court reiterated it is bound by the record.
Stephanie's motion to alter, amend or vacate was denied in a succinct order entered June 6, 2016. Three days later, a new order was entered amending the hearing date referenced in the original order.
Seeking reversal and remand of the trial court's judgment and orders, Stephanie advances three issues on appeal to this Court: Huff lacked standing to receive joint custody of A.W.; Stephanie should have received primary custody of E.H. and sole custody of A.W.; and, the trial court failed to consider KRS 403.270 factors. Huff urges dismissal of the appeal due to noncompliance with CR 76.12 and lack of any request for additional findings of fact pursuant to CR 52.04.
Huff rejected Stephanie's Statement of the Case, arguing it failed to contain "ample references" to the record as required by CR 76.12(4)(c)(iv). The Brief for Appellant contains citations to the record, but Huff chose to highlight additional facts in his Counterstatement of the Case.
ANALYSIS
Huff having called lack of adherence to the rules of appellate practice to our attention, we address it first. CR 76.12(4)(c)(v) requires the brief for appellant to contain:
[a]n "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.Noticeably absent from Stephanie's brief—but not commented upon by Huff—is a statement of preservation in any of her three arguments. Furthermore, while she includes a few citations to the record in the argument portion of her brief, they are few and far between, and mostly to the judgment she is attacking rather than to evidence supporting her arguments.
We require a statement of preservation:
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Importantly, Stephanie has not requested palpable error review. Since her brief overlooks at least one critical requirement for appellate review, we must consider our options in resolving her appeal.
In Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990), we established the principle that, where an appellant fails to comply with CR 76.12(4)(c)(iv), a reviewing court need only undertake an overall review of the record for manifest injustice. We believe that principle applies as well to the failure to comply with CR 76.12(4)(c)(v). Another appropriate remedy is to strike [the] brief for noncompliance with the Rule. CR 76.12(8)(a) ("A brief may be stricken for failure to comply with any substantial requirement of this Rule [.]"). We have chosen the less severe alternative of reviewing the case for manifest injustice due to the serious nature of the issues. J.M. v. Com., Cabinet For Health and Family Services, 325 S.W.3d 901, 902 n. 2 (Ky. App. 2010).Mullins v. Ashland Oil, Inc., 389 S.W.3d 149, 154 (Ky. App. 2012) (quoting J.M. v. Com., Cabinet For Health and Family Services, 325 S.W.3d 901, 902 n. 2 (Ky. App. 2010)). Given that this is a child custody case, as was J.M., we will affirm the trial court's order absent manifest injustice.
Stephanie's first two claims are interwoven. She contends the trial court failed to consider the statutory factors relating to the best interests of the children, as enumerated in KRS 403.270; and, had the trial court undertaken the proper review, it would have named Stephanie E.H.'s primary residential custodian and A.W.'s sole custodian.
Normally, a litigant must file a written request for additional written findings before it can ascribe error to a trial court for not making critical findings. Maclean v. Middleton, 419 S.W.3d 755, 760 (Ky. App. 2014). CR 52.04 directs:
[a] final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a
written request for a finding on that issue or by a motion pursuant to Rule 52.02.Huff maintains Stephanie's failure to request additional findings precludes our consideration of these two claims.
Were this case not a custody determination, Huff would have a point. However, since this is a custody case, these two claims require remand for findings of fact and conclusions of law consistent with Anderson—which Huff cites and quotes—and CR 52.01. To allow the deficient judgment to stand would result in manifest injustice.
In this context, no distinction is made between an initial custody determination and a custody modification. Anderson, 350 S.W.3d at 456-57.
We have reviewed the trial court's judgment in great detail. It occasionally uses the word "finds," and even references KRS 403.270, but these brief mentions do not satisfy the very specific requirements for a custody decision. We acknowledge Huff's position that the court made "good-faith but incomplete findings." We simply disagree.
When deciding a request for custody modification, "family courts must make findings of fact and conclusions of law, and must enter the appropriate order of judgment when hearing modification motions." Anderson, 350 S.W.3d at 457. In determining a child's best interests, KRS 403.270(2) requires consideration of "all relevant factors," specifically listing these items: parental and de facto custodian wishes; the child's wishes; interaction and interrelationship of child with parents, siblings, and other significant persons; the child's adjustment to home, school, and community; mental and physical health of all involved; evidence of domestic violence; and, circumstances of de facto custodian placement, parental intent in placing child with a de facto custodian, and the role of any de facto custodian. The statutory list of factors to be considered is merely illustrative; not exhaustive. 16 Ky. Prac. Domestic Relations L. § 21:10.
KRS 403.270(2) does not specify how the trial court must format its judgment to sufficiently document its consideration of the statutory factors. However, CR 52.01 requires:
[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment; and in granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.The statute and rule must be read in tandem. Inclusion of facts on which the trial court relies and bases its decision is critical to us as the reviewing court in evaluating "whether he has made a mistake of fact, or to even determine if he is right at law, but for the wrong facts. If a judge must choose between facts, it is clearly relevant which facts supported his opinion." Anderson, 350 S.W.3d at 455. We would expect a compliant judgment to reference the relevant factors in some form or fashion.
To clarify the terms about which we speak, a finding of fact is defined as, "[a] determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record, usu. presented at the trial or hearing[.]" Black's Law Dictionary, 10th ed. 2014. A conclusion of law is defined as, an "inference on a question of law, made as a result of a factual showing, no further evidence being required; a legal inference." Id. A legal conclusion is defined as, "[a] statement that expresses a legal duty or result but omits the facts creating or supporting the duty or result." Id.
In this case, the trial court wrote:
[f]rom here forward, custody and visitation are determined by the best interests of [A.W.] and [E.H.]. The Court finds their best interests are served by Stephanie and [Huff] having joint custody of both children.Similar to Anderson, the court's words constitute the required conclusion of law. However, just as in Anderson, without any factual support being reflected in the judgment, stating a bare conclusion of law violates CR 52.01. The problem in Anderson was the trial court "concluded that moving to Paducah was not in the best interest of the child." Anderson, 350 S.W.3d at 457. "Saying only that it is not in a child's best interest to move to Paducah, and nothing further, raises the question 'Why?' " Id. We echo the same sentiment here and emphasize a sound, complete judgment, incorporating both findings of fact and conclusions of law, is especially critical in a family court case because a custody decision:
often serves as more than a vehicle for appellate review. It often becomes a necessary reference for the parents and third parties, such as school officials, medical providers, or other government agencies with responsibilities requiring knowledge of the facts
determined by the trial court. The judges presiding over family law matters must be mindful of the ramifications of their written orders. A bare-bone, conclusory order such as the one entered here, setting forth nothing but the final outcome, is inadequate and will enjoy no presumption of validity on appeal.Keifer v. Keifer, 354 S.W.3d 123, 126 (Ky. 2011).
We generally see a custody decision divided into findings of fact, followed by conclusions of law, and ending with a separate judgment. We do not suggest that is the only way to structure a satisfactory custody decision, but we do underscore this approach works well and provides an excellent blueprint for constructing a sound custody decision. As explained in Anderson, the onus is on the trial court to know CR 52.01 creates "a general duty for the trial court to find facts." Anderson, 350 S.W.3d at 458. To comply with CR 52.01, the judge must "engage in at least a good faith effort at fact-finding [and include the facts it finds] in a written order . . . ." Id. CR 52.04 is triggered "only after the court has complied with its general duty." Id. Because the trial court failed to perform its basic duty in this case, we must remand for findings even though, as Huff mentions, Stephanie did not file a written request in the trial court for written findings on essential issues.
The final question raised by Stephanie is whether Huff had standing to seek custody of A.W., a child to whom he is unrelated by blood. Again, Stephanie has not identified whether, how or where she challenged Huff's standing in the trial court and sought a different ruling. While it is not this Court's responsibility to search the record and develop a party's case for it, we know standing was an issue below because Huff put the issue into play, claiming he was either a de facto custodian or a person "acting as a parent." Additionally, the Whites, who initiated the case by filing for custody, also claimed to be de facto custodians. Thus, the DRC heard testimony about the role of Stephanie (who was seeking custody herself), Huff, the Whites, and also the paternal grandparents, in A.W.'s life.
All of this testimony resulted in the trial court determining no one qualified as a de facto custodian because no individual was the boy's primary financial supporter and caregiver. Instead, each candidate was one of many who cared for and provided for A.W. Boone v. Ballinger, 228 S.W.3d 1, 8 (Ky. App. 2007) (quoting Consalvi v. Cawood, 63 S.W.3d 195, 197-98 (Ky. App. 2001), overruled by Jones v. Jones, 510 S.W.3d 845 (Ky. App. 2017)). No one has challenged the court's determination of the absence of a de facto custodian.
The recurring theme of Stephanie's proof at trial was Huff ingests massive amounts of prescribed painkillers, but we saw no direct attack on the amount of time A.W. was in Huff's custody in an attempt to defeat his claim of standing. Under KRS 403.800(13), to qualify as "a person acting as a parent," a nonparent
(a) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and
(b) Has been awarded legal custody by a court or claims
a right to legal custody under the law of this state[.]"Physical custody" is defined as "the physical care and supervision of a child[.]" KRS 403.800(14). It need not be exclusive; a person performing traditional parenting duties alongside another may still have physical custody. Mullins, 317 S.W.3d at 575. Furthermore, KRS 403.822 confers standing on a "person acting as a parent." Id. at 574.
Huff satisfied the definition of "person acting as a parent." The Whites filed the custody petition on November 20, 2012. At that point, A.W. had lived in Huff's home from about March 2007 (when he was just three months old) until December 7, 2012, (one day before his sixth birthday). On December 7, 2012, an agreed order was entered placing A.W. in the custody of the Whites and giving Huff visitation with him. Thus, Huff along with Stephanie, had physical custody of A.W. for about five years and eight months, well in excess of the six consecutive months required by KRS 403.800(13). Additionally, in October 2012, prior to entry of the agreed order, Huff received emergency custody of A.W. (and E.H.) pursuant to district court orders while Stephanie recovered from a drug episode in a psychiatric unit. Hence, Huff had physical custody for more than the requisite period of time, had been awarded emergency custody by the Harlan District Court, and claimed entitlement to legal custody by virtue of the bond he had developed with A.W. over nearly six years of acting as A.W.'s "dad" with Stephanie's knowledge and blessing. Mullins, 317 S.W.3d at 574-76. In calculating the time Huff had physical custody of A.W., it matters not that Huff shared traditional parenting duties with Stephanie. Mullins, 317 S.W.3d at 575.
Huff's status alone does not end the standing inquiry. A biological parent normally has superior rights when it comes to custody, but those rights may be waived. Id. 317 S.W.3d at 578-79. Here, the trial court found Stephanie waived her superior right to custody in the five ways we have previously recited. In light of the similarities to Mullins, we have no grounds to reverse due to a lack of standing.
Stephanie moved A.W. into Huff's home; she allowed Huff to treat A.W. as his own son, knowing Huff was not A.W.'s biological father; and, she conceived E.H. with Huff, showing a joint decision to add another child to their family which already included A.W.; Huff took immediate legal steps to regain custody of both boys when Stephanie moved out of Huff's home; and, Stephanie admitted Huff "is the only person [A.W.] has known as a dad." --------
For the reasons expressed above, we AFFIRM the trial court's determination of waiver by Stephanie, and Huff's standing to seek custody of A.W. as a "person acting as a parent." However, we REVERSE and REMAND the remainder of the judgment to the trial court for further proceedings to include entry of written findings of fact, conclusions of law and judgment paying particular attention to the "best interests of the child" factors mentioned in KRS 403.270(2) and required by CR 52.01.
ALL CONCUR. BRIEF FOR APPELLANT,
STEPHANIE WHITE: Russell D. Alred
Harlan, Kentucky BRIEF FOR APPELLEE, JAMES
HUFF: William D. Tingley
Louisville, Kentucky BRIEF FOR APPELLEES,
MICHAEL AND ANGELA WHITE: No brief filed.