guardianship order v. custody order

[stk_agn]

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?

[socrateaser]

>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?

See below.

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

You file an appeal. If your case has merits, it will be heard. However, attempting to win on a technicality is usually a waste of time. The court's duty is to afford fair play and substantial justice. If you have been wronged, your case is not about whether affidavits were allowed, but whether or not you were entitled to a full and fair hearing on the merits.

I don't know if you were or not, but that is ground on which I would write an appeal, were I to make one in your case (and I'm not certain that you actually have grounds for an appeal on the merits).