Background
Dustin Leigh Esterley sought joint custody of a boy born to Katelyn Marie Ray and Kenneth Darnell English, III. Esterley, who is the father and sole custodian of the boy’s half-sister, began babysitting the boy when he was young and later provided substantial care and financial support. He paid school tuition and activity expenses, took the boy to school and appointments, and included him in family celebrations. The parties disputed how frequently the boy stayed with Esterley rather than with his mother.
After Esterley and Ray disagreed in 2024 over who would claim the boy as a tax dependent, Ray began keeping the child more often. Esterley then petitioned for recognition as the boy’s de facto custodian and for joint custody. Following an evidentiary hearing, the family court found that Esterley and Ray had co-parented by agreement and that both provided care and support. Concluding that Esterley had not proved de facto-custodian status by clear and convincing evidence, the court dismissed his petition.
The Court’s Holding
The Kentucky Court of Appeals affirmed. It held that substantial evidence supported the family court’s finding that Esterley was not the boy’s primary caregiver under KRS 403.270. Although a biological parent need not be entirely absent for a nonparent to qualify as a de facto custodian, the evidence showed that Ray continued providing significant care and support in conjunction with Esterley. The appellate court deferred to the family court’s resolution of conflicting testimony concerning the child’s living arrangements and the witnesses’ credibility.
The court also rejected Esterley’s argument that his status as a “person acting as a parent” under the UCCJEA independently entitled him to seek custody on equal footing with the biological parents. Without de facto-custodian status, he had to prove by clear and convincing evidence that a parent was unfit or had waived the superior right to custody. Because Esterley did not raise waiver or unfitness as alternative grounds in the family court or request findings on those issues, the arguments were unpreserved and could not be considered for the first time on appeal.
Key Takeaways
- Substantial caregiving and financial support do not establish de facto-custodian status when the nonparent provided them in conjunction with a biological parent and did not prove that the parent had abdicated the primary role.
- A “person acting as a parent” under the UCCJEA does not receive the same custody standing or superior rights as a biological parent.
- A nonparent who is not a de facto custodian must timely plead and prove parental unfitness or waiver before the court may reach a best-interests custody analysis.
Why It Matters
The decision underscores the demanding evidentiary threshold for Kentucky nonparents seeking custody over a biological parent’s superior rights. Even a long-term caregiver who pays major expenses and performs many parental functions must prove that the caregiver, rather than a participating parent, was the child’s primary caregiver and financial supporter for the statutory period.
It also highlights a pleading and preservation trap: UCCJEA status addresses who may qualify as a person acting as a parent but does not itself overcome a biological parent’s superior custody rights. Counsel seeking custody for a nonparent should expressly present any supported theories of parental unfitness or waiver to the trial court and request findings on them.