Background
Child M.T.M. was born in 2015 to Shawn Hamlet (Father) and Kathryn Mecke (Mother). Since 2016, Father has held permanent sole legal custody pursuant to a prior Marshall Family Court order. Although Child initially alternated between Father’s residence and that of his maternal grandparents, Paul Mitchell York and Renada Sue York, Child’s time with Grandparents increased substantially beginning around 2018. During the COVID-19 pandemic, Child resided with Grandparents on a near-full-time basis, in part because Stepmother worked in a hospital setting and faced repeated quarantine requirements.
In November 2021, Grandparents filed a petition in Marshall Family Court seeking de facto custodian status and custody of Child under KRS 403.270. The First Presiding Judge bifurcated the proceedings, addressing de facto custodian status before any best-interest analysis, and in May 2022 entered an interlocutory order finding that Grandparents qualified as de facto custodians. Before a final judgment was entered, that judge left the case and a Successor Judge was appointed.
The Successor Judge conducted additional evidentiary hearings in January and April 2023. On August 12, 2024, he entered findings of fact, conclusions of law, and judgment dismissing Grandparents’ petition, concluding that Father had never abdicated his parental role and that the arrangement amounted to cooperative co-parenting rather than Grandparents standing in the place of a natural parent. Grandparents appealed, raising two issues: whether the Successor Judge had authority to revisit the First Presiding Judge’s interlocutory de facto custodian ruling, and whether substantial evidence supported the dismissal.
The Court’s Holding
The Court of Appeals affirmed on both grounds. First, it held that the First Presiding Judge’s May 2022 order was interlocutory, not a final judgment, because it resolved only the threshold de facto custodian question while expressly reserving all custody and best-interest determinations. Under CR 54.02, any order that does not adjudicate all claims and rights of all parties remains interlocutory and subject to revision at any time before final judgment. The law-of-the-case doctrine, which Grandparents invoked, applies to final appellate determinations — not to interlocutory trial court orders entered during ongoing proceedings. Accordingly, the Successor Judge was authorized to reconsider the prior ruling.
Second, the court held that substantial evidence supported the Successor Judge’s conclusion that Grandparents failed to meet the clear-and-convincing standard for de facto custodian status under KRS 403.270. Kentucky law requires a petitioner to show that they were the child’s primary caregiver and financial supporter for the requisite period — standing literally in the place of the natural parent, not merely parenting alongside one. The evidence showed that Father retained sole legal custody, maintained medical and dental insurance for Child, participated in major decisions regarding Child’s education, therapy, and medical care, and remained involved through regular visitation and other parental activities. Grandmother herself acknowledged routinely seeking Father’s input and approval on significant decisions.
Citing its prior decision in Burgess v. Chase, 629 S.W.3d 826 (Ky. App. 2021), the court reiterated that even extensive caregiving and financial support by a grandparent does not confer de facto custodian status when the natural parent continues exercising parental responsibilities alongside the grandparent. Because conflicting evidence was presented, the Successor Judge as factfinder was entitled to weigh credibility and resolve factual disputes, and the appellate court declined to substitute its judgment for the family court’s.
Key Takeaways
- An interlocutory ruling on de facto custodian status entered before final judgment does not become the “law of the case” and may be revisited by a successor judge conducting additional proceedings in the same action.
- Under KRS 403.270, a grandparent who co-parents a child alongside an involved natural parent — even for extended periods and with substantial financial support — does not qualify as a de facto custodian; the natural parent must have abdicated the primary caregiver and financial supporter role.
- A natural parent’s continued participation in major decisions, maintenance of insurance coverage, and regular visitation can defeat a de facto custodian claim even when the child resides predominantly with the grandparent.
- Factual findings on de facto custodian status are reviewed for clear error, and an appellate court will not disturb the family court’s credibility determinations where the evidence is conflicting.
Why It Matters
This decision reinforces the high bar Kentucky imposes on nonparents seeking to acquire parental-equivalent standing through the de facto custodian statute. It clarifies that cooperative caregiving arrangements — including those that arise from necessity, such as a pandemic-driven quarantine situation — do not automatically satisfy KRS 403.270 when the natural parent remains engaged. Attorneys advising grandparents or other nonparent caregivers must carefully assess whether the natural parent truly abdicated the parental role or simply shared it.
The case also provides practical guidance on successor-judge authority: an interlocutory ruling on a discrete threshold issue in bifurcated custody proceedings carries no finality protection and remains open for reconsideration until a final judgment is entered. Practitioners should not treat a favorable interim ruling as a settled entitlement when litigation is ongoing and the presiding judge changes.