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Has anyone lost their custody case because of the "de facto custodian" law?

I am looking for case histories on this topic,,,

      * Did you lose custody because of this law?

      * Was this law used in the wrong context in your case?

      * Were you able to regain custody after someone else was
         given de facto custodian status?


What I know about "de facto custodian"

   *This status is used after a child has been with a guardian,
    family member, foster caregiver, etc,,, for 6 months or more.

   *De facto custodian status gives the guardian, family member,
     caregiver etc,,, the same rights (equal footing) as a biological parent.

   *De facto custodian is usually given to a person when the child they
     are caring for has been abandoned by one or both parents.

If I am wrong about any of this please let me know. I need to know as much as I can about this BEFORE December 14, 2004. I lost custody of my daughter to MY mother because of this law and I need to find out if this law was used in the wrong context as far as my case is concerned.

Does anyone have any website, book, or article  suggestions?  

Any help you all can give me would be greatly appreciated.

For those of you that may be wondering what the outcome against my mother was... here is a brief summary and  an update. I apologize in advance for this being so long.

I was having financial difficulties about 3 yrs ago... My mother asked if she could take care of my daughter until I got back on my feet... I agreed to let my mother take care of her... (Because I didn't think I would have any problems what-so-ever getting my child back from my own mother.)

After repeated attempts to get daughter back from my mother and her refusing to let daughter come back,,, I took her to court. She file for custody AFTER I filed my motion to terminate her guardianship.

First court date, the DRC gave my mother "de facto custodian" status... Second court date Domestic Relations Commissioner gave FULL custody to my mother because my mother said I never attempted to get daughter back (which was not true I have proof that I tried many times)

We appealed this decision to the judge... This judge affirmed what the DRC decided. We have appealed this as well.

We have recently come across new evidence and have filed a Motion to Alter, Vacate, or Amend and now have a court date set for Dec 14, 2004. This will be going in front of the judge that affirmed the DRC's decision the first time.

Also, since the last court date (Oct. 19, 2004) my mother has only allowed me one extra day of visitation with my daughter. She also let my daughter stay out of school for a week because she took my child to Disney World in Florida for her birthday. (How can I compete with this type of gift?)

 The judge knew about this and allowed her to go. This interfered with my court ordered visitation with my child. I was allowed to make up some of this time but not all of it.

My daughter is being turned against me by my own mother and my daughter's attitude toward me shows that my mother is planting terrible things about me in her head.

Hopefully this new evidence will help get my daughter where she belongs.

I also took my ex husband to court over my son. (Circumstances with son were same with daughter described above) BUT,,,

We had joint custody of son, he was primary caretaker, ex let me have son every other week and let me babysit for him while he was at work on his weeks.

After 8 months of it being like this he stopped it without notice or explaination. I took him to court on Nov. 23, 2004. I got true joint custody (every other week) NO primary care taker, NO child support, and I am the babysitter (1st right to refusal?) ex has to pick son up from my house on his weeks after he gets off work. (An extra 28 miles both ways for him to drive,,, he's not happy about that)

In short. I finally got my son where he needed and wanted to be. My ex no longer has the control he swore he would never give up. I am very happy about the way this one worked out.

Thank you all for taking the time to read this post. Good luck to everyone with their cases and thank you for your input and opinions on my case(s).

My custody hearing against my mother was yesterday. It did not go in my favor and needless to say, the DRC gave custody of my daughter to my mother.

The DRC had an attitude before the hearing started, he was unprofessional throughout the whole hearing.  He made a comment stating "If the parents had supported the child we wouldn't have to be here today."  He had his decision made before the hearing began

Believe me when I say this but every last bit of it is true and right now I am looking for ANY help that I can get because this is not over.

The DRC did not listen to any of the evidence or testimony, (literally) he slouched down in his chair, had his arms thrown over the back of the chair, he picked at his fingernails, he looked at the pictures on the wall, he picked lint off his jacket, at one point he was sitting there with his eyes closed, he kept looking at the clock, he did not make eye contact with anyone, and he continued to make malicious comments toward me throughout the hearing.  He refused to enter my documents and records of denied or refused visitation time into evidence.

My mother admitted to emotionally abusing my daughter by calling her names such as, "fat ass", she admitted to offering me money so she could keep my child, she said that the only reason I wanted my daughter back was for the child support that is paid by the bio father, she repeated many times that she thought that I would cause my daughter harm, and her main point was that I wouldn't keep my daughter in Girl Scouts. (that is what they used as leverage.)

My mother and step-father said that I only wanted to see my daughter when it was convenient for me (which is totally false), they said that I never called and asked for extra visitation time, they claimed that my documentations were fabricated (I used the PTT from this site and the DRC refused to look at it)

My mother's attorney "knew" that they had lost and we "knew" that we had them beat, but like I said earlier, the DRC had his decision made before the first word was ever said and no matter what evidence we had against my mother, despite the fact that both my mother and my step-father looked like total idiots and they both were irate from the very beginning, nothing that was said or done could change the DRC's mind.

I guess what I am looking for is, information on how I can:

 (a) change the Kentucky Family Laws in this county and
 
 (b) how I can get this man removed from the position of Domestic         Relations Commissioner, because he is not an impartial "judge", he makes his decisions based on his own biased opinions.

If anyone can lead me in the right direction I would greatly appreciate it.  Like I said before, this is not over and I am not going to accept this decision.

My fiancee and I are at a loss for words, we plan on getting another attorney to come in and help our current attorney to take this to the next level.  What else can we do?

Ever experience extreme confusion? It's happened to me! ;)

My court date is 8 days away, I have an appointment with my attorney this afternoon, and I have absolutley no idea what I should ask her. I don't know what is relevant and what isn't.

Does anyone have any tips on questions that need to be asked and what preparations I need to make before next week? (Custody hearing is Sept 15th)

I have gone over everything in my head so many times that I can't remember anything. I have it written down, but right now it just looks like a big ball of jumbled words.

(Needless to say I am extremely nervous about all this.)

 I've been to court before over my children, but there was never this much at stake when it came to my childs/childrens future and well-being.

I will gladly acept any and all advice, suggestions, tips, pointers, and opinions without attacking or judging anyone.

I come here for advice and support not to pick fights, insult, degrade or upset people. I only care about my children and their future.

Thank you in advance for your input.

This is pretty long and I apologize up front.

My story begins 8 yrs ago when I had my daughter. Her bio dad was in the military, I told him I was pregnant and he left me. Throughout the pregnancy he refused contact with me. After my daughter was born, I showed up at his place of residence unannounced with my daughter, who was 4 weeks old, he was proud of her and showed her off to his friends. Two weeks later I got a call from the Post Commander telling me he went AWOL.

(Now we jump forward 5 yrs)

I had separated from my second husband (due to violence against my children) I was being laid off every 2 weeks from work for over a year, my bills got behind, and I was having difficulty taking care of my 3 children. My first husband took my son because of 2nd hubby. The same day son was taken my mother asked me if I would let her tke care of middle child until I got back n my feet.

I was hesitant about it because I didn't think that my mother would let me have daughter back when I was financially able. She promised me that she would no keep my daughter from me because she was MINE and not hers.

Approximately 8 months after I let my daughter go with her (keep in mind that it was for financial reasons only) I asked for her back. My mother got upset with me and told me that I didn't have my S*** together yet and refused to give her back.During this time my mother applied for guardianship of my daughter and was awarded it.

Throughout 2002, 2003, and 2004 I repeatedly asked for her back and my mother always got mad and yelled at me telling me that my life sucked, i mentally unstable and emotionally unable to care for my daughter still refusing to give her back. My daughter is now 8 yrs old.

In May 2004 I told my mother that I had filed the necessary papers to terminate her guardianship to regain custody of my daughter and a court date was being set. She, in turn, hired an attorney and has filed for de facto custodian.

My mother is brainwashing my daughter telling her that I am a bad mother, that I don't love her, and that I don't want her, and that all I want is child support from the bio dad. (all of which is not true, the bio dad is $7000+ behind and I have not had him put in jail yet.)

My daughter won't come to my house because my mother has told her that if she comes here I won't take her back. She won't let my daughter call me on the phone, daughter won't even stay the night with me.

My mother's health is failing, she refuses to drive and my stepfather does drive but has been driving on a suspended license for the last 5 or so yrs.

My mother has called me asking "How much will it take for me to keep "K"? If you want money I can get you more CS. If you want to claim her on your taxes I will let you. What do I have to do?" (that is word for word from her mouth)

No only do I have to deal with my daughter being brainwashed, but I have to put up with the bribes from my mother.

I have an attorney and a court date set for July 29, 2004. The case is going in front of the DRC (Domestic Relations Commisioner). The DRC in my county in KY refuses to let the parties involved into the courtroom, he is known for putting off making important decisions about a child's well-being because he is "not in a good mood", and he someties refuses to hear any or all evidence

My question(S) is/are,  Does anyone have any advice for me? What do I need to do, what should I bring up in court? What should I NOT bring up in court?

This is no longer a disagreement between my mother and me, it is now a full blown war and I am ready to do whatever it takes to get my daughter back.



Thank you for taking the time to read my story.  Any advice and/or opinions are appreciated.

Thanks again,
A mother who loves her children more than life itself.

My ex husband was found guilty of child abuse about a year ago and I received custody of our 14 year-old-son through District Court. Ex has not spent any time in jail for this, only got 2 years probation and no unwanted contact with son. (Son has to approve any contact his dad may want.)

Ex has stated that he wants to give up his rights and allow current husband to adopt. Current husband does NOT want to adopt because it is giving ex an "easy out" over paying child support. (Ex currently pays $1000/ month child support to another ex wife)

We are wanting to take ex to court to get custody through Circuit Court and request child support because ex has not seen son since November 15, 2005.

We all reside in Kentucky; ex lives in county where case has been from day one (14 years ago) and we live in a different county (approximately 5 miles from county line).

My question is:

1. Can we file for custody in the county where we live (son has lived with me for a little over a year) or will we have to keep it in the original county where the divorce/custody and criminal case has been for 14 years?

2. If we can file in the county we live in, what are the chances that it will be sent back to original county?

Thank you for your help.

BRIEF SUMMARY OF CASE:

My daughter went to live with my mother in May 2001 due to me being in poverty at the time. Over the next 3 years I repeatedly asked for my daughter to be returned and my mother repeatedly denied/refused.

July 2001 (against my wishes) my mother filed for and was awarded guardianship of my daughter.

After being denied help by Legal Aid and local attorneys for 3 yrs, in 2004, I finally found an attorney that was willing to take my case.

July 2004 I filed motion in District Court to have guardianship terminated and custody returned to me and my mother filed in Circuit Court for de facto custodian status. She was declared the de facto custodian in a hearing where neither party was allowed in the courtroom.

(NOTE: The court date that was set in District Court (mine) was set for July 30, 2004 and the one in Circuit Court (my mother's) was July 29, 2004. Meaning, my court date was cancelled and the motion was never heard.)

The next court date was Sept 2004 when testimony and evidence was entered. The DRC was biased from the beginning, making ugly comments about me before I got to say anything. He picked his nose, cleaned his glasses, stared at the clock, picked lint off his clothes and never made eye contact with me throughout the entirety of my testimony.

 My mother was awarded full custody of my daughter in this hearing. We appealed.

Oct 2004 motion to alter, vacate or amend was denied.

Jan 2005 went back to court my attorney's argument was, "Your Honor, this just isn't working out." (that was the whole argument, nothing more, nothing less) Needless to say,,, we lost,,,,again.

April 12, 2005 we went back to court with an argument and evidence that the de facto custodian law was unconstitutional as applied to me/my case, that the "de facto custodian" did not file affidavits with their motion to modify and that the DRC made no findings of fact or conclusions of law in the Sept 2004 hearing.

Again, I lost.

The Circuit Court judge in the April 2005 hearing said that there was no previous custody order to modify, therefore, no affidavits were needed. He would not address the poverty issue as pertaining to the de facto custodian statute and refused to grant our request to remand to DRC for further findings of fact and conclusions of law, as the DRC never made ANY in the Sept 2004 hearing.

There was not an original order stating that I had custody of daughter prior to her going to live with my mother, because the bio father disappeared (abandoned daughter) before daughter was born, but he has been paying child support off and on for the last few years.

My question is:

If my mother was legal guardian of my daughter and had an order stating so,, Wouldn't a guardianship order be almost like (if not exactly like) a custody order?  If so, then there was/is a previous order to modify, therefore, affidavits are required by KY law to modify custody. Right?

If this is right, how do we get this information in front of the KY Appeals Court without it being thrown out or dismissed?

How do states justify infringing upon parents' fundamental rights with the de facto custodian law?

 As I understand it, when confronted with a conflict between parents rights and state regulation, the court must apply the "compelling interest test". Under this test, the state must prove that its infringements on the parent's fundamental rights is essential to fulfilling a "compelling interest" and is the least restrictive means of fulfilling this state interest.
Simply proving the regulation is reasonable is not sufficient.

The United States Supreme Court has consistantly protected parental rights and was decisively confirmed in the recent case of Troxel v. Granville.

My question I suppose is,,, How can the state of Kentucky use the "best interest" rule to deprive the natural parents of custody of their children, [against a "third-party"] when the parent was exercising their parental right to see that their child did not live in poverty while they sought to better themselves?

I must add that the parent has never given up their superior right to custody and has never been proven or accused of being unfit.

What chances do you see in proving the parents constitutional rights (The 5th, 9th and 14th Amendments) have been violated?

BRIEF SUMMARY OF CASE:

My daughter went to live with my mother in May 2001 due to me being in poverty at the time. Over the next 3 years I repeatedly asked for my daughter to be returned and my mother repeatedly denied/refused.

July 2001 (against my wishes) my mother filed for and was awarded guardianship of my daughter.

After being denied help by Legal Aid and local attorneys for 3 yrs, in 2004, I finally found an attorney that was willing to take my case.

July 2004 I filed motion in District Court to have guardianship terminated and custody returned to me and my mother filed in Circuit Court for de facto custodian status. She was declared the de facto custodian in a hearing where neither party was allowed in the courtroom.

(NOTE: The court date that was set in District Court (mine) was set for July 30, 2004 and the one in Circuit Court (my mother's) was July 29, 2004. Meaning, my court date was cancelled and the motion was never heard.)

The next court date was Sept 2004 when testimony and evidence was entered. The DRC was biased from the beginning, making ugly comments about me before I got to say anything. He picked his nose, cleaned his glasses, stared at the clock, picked lint off his clothes and never made eye contact with me throughout the entirety of my testimony.

 My mother was awarded full custody of my daughter in this hearing. We appealed.

Oct 2004 motion to alter, vacate or amend was denied.

Jan 2005 went back to court my attorney's argument was, "Your Honor, this just isn't working out." (that was the whole argument, nothing more, nothing less) Needless to say,,, we lost,,,,again.

April 12, 2005 we went back to court with an argument and evidence that the de facto custodian law was unconstitutional as applied to me/my case, that the "de facto custodian" did not file affidavits with their motion to modify and that the DRC made no findings of fact or conclusions of law in the Sept 2004 hearing.

Again, I lost.

The Circuit Court judge in the April 2005 hearing said that there was no previous custody order to modify, therefore, no affidavits were needed. He would not address the poverty issue as pertaining to the de facto custodian statute and refused to grant our request to remand to DRC for further findings of fact and conclusions of law, as the DRC never made ANY in the Sept 2004 hearing.

My question is:

If my mother was legal guardian of my daughter and had an order stating so,, Wouldn't a guardianship order be almost like (if not exactly like) a custody order?  If so, then there was/is a previous order to modify, therefore, affidavits are required by KY law to modify custody. Right?

If this is right, how do we get this information in front of the KY Appeals Court without it being thrown out or dismissed?

How do I get a copy of the video/audio tape that was made during my court hearing?

I know by Kentucky law the court is required to give me a copy if I request one, but how do I do it (other than go straight to them and say, "I want a copy of the tape?"

Any help would be appreciated.
Thanks a bunch

I will try to explain the situation in as few words as possible, please bare with me.

My ex and I divorced in Feb. 1993, he remarried less than 2 weeks later. I was given custody of my son.  When son was 7, I couldn't take care of him financially so I let him live with his dad (my ex)

I was never allowed to have a standard visitation order, either agreeable by my ex or the judge.  We went to court and I was refused a visitation order repeatedly by the judges hearing the case.

my son is now 11 and his dad and step-mother have separated. The bio dad still has my son and I finally got my visitation order.  

I am now trying to get custody of my son because his dad is very unstable. He has suicide threats and attempts, he has been jailed by his current wife twice for violation of a domestic violence order, he has threatened my son with physical harm, he has punched my son in the head numerous times, my son has not been fed on a number of occasions, he (my son) was locked out of the house in 20 degree weather, he has been left home alone, he has had clothes taken away as a form of punishment.

This is just a short list of things that my son has been through since Thanksgiving.

We have been to court twice in the last few months and both times the judge refuses to let us in the court room. He only wants to deal with our attorneys.

On the day of our last court date, my ex's house burnt to the ground and the judge wouldn't make any sort of ruling until the investigation of the fire was complete because arson was suspected.  Even though this has nothing to do with my case I still can't seem to get the judge to make a decision as to custody, let alone a court date.

My son is terrified of his dad and right now it seems that there is nothing that I can do to protect him. He was forced to stay with a babysitter a couple weeks ago when his dad was jailed (again). I was not allowed to go get him because his dad had already made arrangements for my son to stay with this babysitter.

Does anyone have any suggestions on what steps I can take to get custody back? My attorney wants to wait and see what happens with my ex and his current wife when they go to court next week.

Their case has nothing to do with my case. Why should I have to wait because of their case?

I talked with a couple people in the chatroom a few months ago about my son and allegations of child abuse on my ex's part.

But for those of you that do not know what happened I will explain as briefly as I can.

First of all, my ex and I had 50/50 custody with NO primary.

In November 2005, I got a phone call from DCBS requesting a meeting with me. They told me that they had received a complaint against my ex-husband for abusing my son who is 13 yrs old.

We went to court, judge took my son from my ex AND me and put him in foster care. I could not figure ot why she took him from me but I did as she told me to. (I did see son every day so he wouldn't freak out by being in foster care.) Father was ordered to stay away from son.

In Dec 2005 we went back to court to try to get son back in my care,,, judge said, "No Way!!" and continued custody to DCBS. We then took it to the Circuit Court on Jan 6, 2006 and the judge gave me temporary custody of son pending the outcome of the hearing on Jan 9, 2006. (Yes it was only 3 days.)

Jan 9th hearing district judge took son away from me again and put him back in foster care. So this made 3 times that she refused to let me have my son because his father doesn't know how to keep his hands to himself.
Keep in mind that all this time there has not one time been anything negative said about me, no investigations, no complaints, NOTHING.. But the judge wouldn't let me have son back because of her own personal opinion. (Yes she did remove son from my care based on her own motion.)

We went back in front of district judge on Jan 26 on request for "written Findings of Fact". Knowing that we were going to go over her head again, district judge gave me custody of son back and order no contact with son's father. Ex plead guilty to child abuse in Feb 2006 and ordered to counseling.

It has been 4 months since my son has seen his father. Not because I won't let him but because father refuses to complete psych evaluation he was ordered to do, he also refuses to complete anger management classes that he was ordered to do. He has also refused to schedule the supervised visitation with DCBS because he wants visitation to take place in HIS home and DCBS says no way,,, not safe.

The whole purpose of this post is to encourage people to NOT give up. I felt like I was going to lose my son to the foster care system even though I didn't do anything to him. The judge just took him because she wanted to prove that she could do it without reason.

Just don't give up on your children no matter how bad things seem to get. Let them know that you love them and that even though you are not with them everyday physically, that you are with them in their thoughts. I know that sounds corny but I don't know how else to say it. My son was in the foster system for 3 months for no reason.

I wish everyone much much luck in their court battles.

I would like to give the parents that are fighting for custody of their children a little advice. This is very important.

I have just come to the end of a 2 year custody fight over my daughter. I wasn't fighting her father,,, I was fighting my mother. We went all the way to the appellate court. Of all things to cause me to lose it was something that my lawyer was paid to do but didn't.

My lawyer let me run out of time to file an appeal. After the final hearing we had 30 days to file an appeal; at 35 days my lawyer filed to alter, vacate or amend because she knew that she screwed up. Through my own investigation of my case I found out that my lawyer never filed the notice of appeal (even though I signed it in her office).

I had her office copy everything that they had so I could check the file; that's when I found out that the Notice of Appeal was missing from her files as well. (Imagine that!!!)

My advice is this:
* Make sure you get copies of everything you sign from your lawyer even though they will be sending you a copy later on.

* If your lawyer tells you "Well, there isn't anything we can do about (insert your law/complaint) that the other party will be or was awarded. We can't fight it."  they are lying to you. All laws CAN be fought/challanged but it doesn't mean that it won't be granted.

* If your lawyer tells you that they filed a certain motion/petition,,, check with the court clerk to see if it was indeed filed. Because if you run out of time for filing,,,, it will cost you custody of your child(ren) in the end even if you know that there is no way you can lose your case.

* DOCUMENT, DOCUMENT, DOCUMENT,,,, this website  stresses the importance of documentation. Listen to them, use the Parenting Time Tracker save it do disk or print it out, use the comments column for your notes no matter how stupid they are. It will help you in the long run when you can't remember something.

My main point is DO YOUR HOMEWORK,,, read up on the custody laws for your state, find case law, read opinions of cases that have already been through appellate court you might find something that could help your case. Request copies of the tape(s) of your hearing from the Court Clerk for reference (a fee per tape will be required)

Always remember that your lawyer works for you and not the other way around.

I hope this helps everyone. I know that it's not much but it only takes filing a motion or petition one day late and you could lose the most important thing to you and that is your child(ren).

I have nothing else to fight my mother with to get my daughter back. My number one argument that I had did me no good because my lawyer didn't do what I paid her to do,,, her job.

I need an article that is in the Kentucky Law Journal.  It is titled  A parents rights under the fourteenth amendment: does kentucks de facto custodian statute violate due process.   2004, volume 92, issue 2  ..... It is in West Law, But I can't find it anywhere on the internet          

I have joint custody of my son who is 9 yrs old.  My ex was allowed to move to another state almost 20 hrs away, because of her job.

About 5 months ago, she lost thos job, and instead of moving my son back to my state, where all his family is, and her new husband lives, she moved him about 5 hours away to an entirely different state.

She was in the first state almost 2 yrs. She owns a home here and her new husband lives here.  The only court that has ever made a ruling is here.  He was born here, and as I've already said, she has notbeen in this new state for 6 months.

My question is, where is jurisdiction?  here? or in the new state she lives in?