RENDERED: AUGUST 12, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1188-MR

TEISHA MCKENZIE AND 

JOHNATHON HUTSON APPELLANTS 

v. 

APPEAL FROM CARTER FAMILY COURT

HONORABLE DAVID D. FLATT, JUDGE

ACTION NO. 20-CI-00064

HELEN DONATHON AND JAMES 

DONATHON APPELLEES

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: DIXON, MCNEILL, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Teisha McKenzie and Johnathon Hutson (collectively 

parents) appeal from the order and judgment entered by the Carter Family Court on 

August 24, 2020 (the order), awarding joint custody of their minor child, K.H.

(child), to parents and Helen Donathon and James Donathon (collectively the 

Donathons). We conclude that because the family court ruled that the Donathons
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lacked standing to pursue custody of child as de facto custodians under Kentucky 

Revised Statutes (KRS) 403.270(1)(a), it erred in proceeding to consider whether 

parents waived their superior right to custody and granting the Donathons joint 

custody with parents on that basis. Therefore, we reverse and remand with 

instructions to dismiss the Donathons’ petition without prejudice.

On February 26, 2020, the Donathons, who are child’s maternal greatgrandparents, filed a petition for custody in the family court. Their petition alleged 

they were child’s de facto custodians and, in that capacity, sought custody of him. 

They alleged child had lived with them since he was approximately eight months 

old and that parents, who were never married, failed to provide for him and were

incapable of caring for him. On March 2, 2020, parents filed a motion to dismiss. 

They argued the Donathons lacked standing to seek custody of child. In support of 

their motion, parents filed an affidavit in which they disputed the allegations in the 

Donathons’ petition. They stated, among other things, that they have cared for 

child the majority of the time and simply used the Donathons as babysitters. 

The family court scheduled an evidentiary hearing for March 11, 

2020. At the beginning of the hearing, the judge stated the purpose of the hearing 

was to determine if the Donathons qualified as de facto custodians. Helen and 

Teisha testified. In addition, the judge interviewed child in his chambers. During 
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Teisha’s testimony, the Donathons objected to parents’ use of certain documents 

that had not been previously produced, so the family court continued the hearing. 

On July 31, 2020, the hearing resumed; however, there is no recording 

of the hearing.1 The only recording from that day consists of the family court’s 

oral findings. The family court found that the Donathons did not prove they were 

child’s de facto custodians, and then found “it has been established through the 

testimony that the natural parents have waived the superior right to custody by 

ceding the majority of the parental care of the child to the Petitioners for an 

extended period of time.” 

The written order, which was only three pages long, devoted one 

paragraph to its conclusion that the Donathons were not child’s de facto custodians 

and one paragraph to its conclusion that parents had waived their rights, which we 

provide in full:

1. The Court concludes that Petitioners have not 

established the requisite factual elements to be 

1 Parents argue that Johnathan, and other witnesses parents called, testified during this time and 

that “[t]his testimony was a crucial part of [parents’] case[.]” However, as the Donathons have 

pointed out, parents failed to take any steps to preserve and present this testimony through other 

means, such as pursuant to Kentucky Rules of Civil Procedure (CR) 75.13. CR 75.13 provides 

for the preparation of a narrative statement “[i]n the event no . . . electronic record of the 

evidence or proceedings at a hearing . . . was made[.]” If parents had followed the process set 

out in the Rule, the narrative statement as approved by the family court would have been 

included in the record on appeal. We urge parties to take appropriate steps to present a complete 

record on appeal. While the matter was already pending on appeal at the time that it was 

discovered this portion of the hearing was not recorded, parents could have appropriately 

requested that the pending appeal be put in abeyance and the case remanded back to the family 

court so that parents could proceed with submitting a narrative statement in accordance with the 

CR 75.13 process.
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adjudicated as de facto custodians of the minor child, 

K.H., since they, while having provided support for 

him in a significant way, have not been the sole 

providers of the support and care of the minor child, 

K.H.

2. The Court does conclude, however, that the 

Respondents, the natural biological parents of the 

minor child, K.H., have waived any superior right to 

custody, by having ceded responsibility to the 

Petitioners, great-grandparents of K.H., for the bulk of 

his care and support including making decisions for 

his schooling and medical needs and who have 

provided significant living arrangements for K.H. and 

provided financial support for him. 

Thereafter, the court considered the best interest factors and determined pursuant 

to KRS 403.270(2) it was in child’s best interest for there to be joint custody 

between Teisha, Johnathon, and the Donathons, and established a timesharing 

schedule in which child would spend time with all of them. 

On appeal, parents argue the family court erred in finding they waived 

their superior rights to custody of child. Specifically, they argue that the 

Donathons never pled waiver and that the family court’s finding of waiver is 

clearly erroneous. The Donathons argue that the family court’s finding of waiver 

is supported by the evidence and that if evidence is missing from the record, it is

presumed the family court’s decision is supported by the evidence. The Donathons

also argue that parents failed to properly preserve the issues they now raise on 

appeal.
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Before discussing the parties’ arguments, we must first address the 

deficiencies in their briefs. As the Donathons argue, parents failed to include a 

statement in their argument showing where and in what manner each issue was 

preserved for review. CR 76.12(4)(c)(v). “It goes without saying that errors to be 

considered for appellate review must be precisely preserved and identified in the 

lower court.” Skaggs v. Assad, ex rel. Assad, 712 S.W.2d 947, 950 (Ky. 1986). 

The Donathons’ brief, however, is also deficient. Specifically, the Donathons 

violated CR 76.12 because their counterstatement of the case is devoid of citations 

to the record and impermissibly includes argument. CR 76.12(4)(d)(iii). Also, in 

violation of CR 76.12(4)(d)(iv), the Donathons’ argument contains no citations to 

the record or to applicable authority. See Koester v. Koester, 569 S.W.3d 412, 414 

(Ky.App. 2019) (explaining “[a]ssertions of error devoid of any controlling 

authority do not merit relief.”). 

“The decision as to how to proceed in imposing such penalties is a 

matter committed to our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396 

(Ky.App. 2007). While the Court could impose sanctions for the parties’ failures 

to comply with CR 76.12, because this case involves the custody of a minor child 

we elect to look past these failures and to proceed without sanction against either 

party. K.M.J. v. Cabinet for Health and Family Services, 503 S.W.3d 193, 196 
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(Ky.App. 2016). We do so trusting that counsel will comply with the mandates of 

CR 76.12 in future appeals. 

In child custody cases, we review a trial court’s findings of fact for 

clear error and its application of law de novo. Burgess v. Chase, 629 S.W.3d 826, 

831 (Ky.App. 2021); CR 52.01.

We first address the Donathons’ argument that parents failed to 

preserve their argument that the family court erred by awarding custody based 

upon a ground, waiver, that was not pled by the Donathons. Even if we were to 

accept their argument as true, unpreserved error may still be reviewed for manifest 

injustice. CR 61.02 provides:

A palpable error which affects the substantial rights of a 

party may be considered by the court on motion for a 

new trial or by an appellate court on appeal, even though 

insufficiently raised or preserved for review, and 

appropriate relief may be granted upon a determination 

that manifest injustice has resulted from the error.

As explained below, we determine under these circumstances that even when 

reviewing for manifest injustice, the family court’s order must be reversed.

Next, we address parents’ argument that the family court erred by 

finding they waived their superior parental right to custody of child. “Parents of a 

child have a fundamental, basic, and constitutional right to raise, care for, and 

control their own children.” Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 

2010). It is “perhaps the oldest of the fundamental liberty interests recognized by 
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[the United States Supreme Court].” J.S.B. v. S.R.V., 630 S.W.3d 693, 701 (Ky. 

2021) (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 

L.Ed.2d 49 (2000)).

When a non-parent does not meet the statutory standard 

of de facto custodian in KRS 403.270, the non-parent 

pursuing custody must prove either of the following two 

exceptions to a parent’s superior right or entitlement to 

custody: (1) that the parent is shown by clear and 

convincing evidence to be an unfit custodian, or (2) that 

the parent has waived his or her superior right to custody 

by clear and convincing evidence.

Picklesimer, 317 S.W.3d at 578 (footnote omitted). See Truman v. Lillard, 404 

S.W.3d 863, 868 (Ky.App. 2012). As explained in J.S.B., 630 S.W.3d at 703, the 

Picklesimer Court “unequivocally relaxed the previously stringent standard 

regarding what may constitute parental waiver. It held, as a matter of first 

impression, that waiver can and should apply in certain situations where a child has 

not been ‘fully surrendered’ to a nonparent[.]”

Here, the Donathons claimed they were child’s de facto custodians, 

and they sought custody of child only in that capacity. They did not plead that

child’s parents waived their rights to custody of child in whole or in part. 

Compare with J.S.B., 630 S.W.3d at 700 (explaining stepfather pled alternative 

grounds for custody).

The family court stated at the beginning of the hearing that the 

hearing’s purpose was to determine if the Donathons were de facto custodians of 
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child. Despite this, the family court, sua sponte, found on July 31, 2020, that 

parents had waived their superior parental rights to custody of child. Nothing in 

the record indicates that parents expressly or impliedly consented to trying the 

issue of waiver. See generally CR 15.02; Traylor Bros., Inc. v. Pound, 338 S.W.2d 

687, 688-89 (Ky. 1960). There is also no evidence in the record that the 

Donathons moved to amend their petition to include a claim of waiver. While we 

may assume evidence in the unrecorded portion of the hearing supports the family 

court’s ruling that the facts established that waiver occurred, we will not assume 

that during that time the Donathons requested and were granted the opportunity to 

orally amend their pleadings to include waiver as a ground for custody or that 

parents consented to this untimely amendment. Indeed, the Donathons do not

contend that anything of this nature took place. 

It is fundamental that a judgment cannot properly adjudicate an issue 

that was not pled. See Buskirk v. Joseph, 313 Ky. 773, 779, 233 S.W.2d 524, 527 

(1950) (“As there was no issue in the pleadings as to this item, it is manifest the 

judgment must be reversed on the cross-appeal. It is elementary that a judgment 

cannot properly adjudicate a matter not within the pleadings.”); see also Transit 

Authority of River City (TARC) v. Montgomery, 836 S.W.2d 413, 416 (Ky. 1992) 

(“the judge should leave to the lawyers the development of the case and be 

cautious and circumspect in his participation and conduct”). The family court’s 
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finding that the Donathons failed to prove they were de facto custodians meant 

they could not prevail on the only claim for relief stated in their petition – their 

request to obtain custody of child. The family court should have dismissed the 

Donathons’ petition because they lacked standing. See Cherry v. Carroll, 507 

S.W.3d 23, 28 (Ky.App. 2016) (holding petitioner who sought custody as a de 

facto custodian had no standing to seek custody upon determination he did not 

meet requirements for de facto custodian status). 

We conclude the family court committed palpable error in raising, sua 

sponte, the issue of waiver to cure the Donathons’ lack of standing to contest 

custody and then basing its award of custody on that ground. We further conclude 

that such error resulted in manifest injustice because it affected parents’ rights to 

custody of their minor child. 

Furthermore, even had the issue of waiver been appropriately before 

the family court, we have serious concerns as to whether it received all due 

consideration from the family court. It concerns us that the family court failed to 

mention the relevant standard required for it to conclude that parents had waived 

their rights (in either its oral pronouncement or written order), and instead largely 

focused on child’s best interests. 

As explained in Picklesimer, 317 S.W.3d at 578:
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“The common definition of a legal waiver is that it is a 

voluntary and intentional surrender or relinquishment of 

a known right, or an election to forego an advantage 

which the party at his option might have demanded or 

insisted upon.” Greathouse v. Shreve, 891 S.W.2d 387, 

390 (Ky. 1995) (quoting Barker v. Stearns Coal & 

Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)). 

“Because this is a right with both constitutional and 

statutory underpinnings, proof of waiver must be clear 

and convincing. As such, while no formal or written 

waiver is required, statements and supporting 

circumstances must be equivalent to an express waiver to 

meet the burden of proof.” Vinson v. Sorrell, 136 S.W.3d 

465, 469 (Ky. 2004) (quoting Greathouse, 891 S.W.2d at 

390-91).

In order to find waiver, our Courts have provided relevant but non-exhaustive 

factors to be considered. See Penticuff v. Miller, 503 S.W.3d 198, 203 (Ky.App.

2016). Thereafter, elements of waiver require findings that such waiver was 

“knowing, voluntary, and intentional” and these elements “must be established by 

clear and convincing evidence.” Id. at 205. Only after it is determined that parents 

have waived their superior right to custody, should the best interests of the child 

standard be applied in determining custody. Greathouse, 891 S.W.2d at 390.

As was the case in Vinson, 136 S.W.3d at 469, “the best interest of the 

child test appears to have been the decisional basis rather than the clear and 

convincing evidence standard required in custody disputes between parents and 

non-parents.” See Fitch v. Burns, 782 S.W.2d 618, 622 (Ky. 1989) (raising 

concerns although the decision was reversed on other grounds that the wrong 
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standard may have been applied as the family court failed to specify the standard it 

was applying). 

A family court should not blithely undertake to grant custody based 

on waiver without a full and complete consideration of the facts under the clear 

and convincing standard. As noted in Truman, 404 S.W.3d at 870, “[n]ot every 

person who genuinely loves and cares for a child gains custodial rights; waiver 

requires significantly more.”

For the foregoing reasons we reverse the family court’s order and 

remand the case with instructions for the family court to dismiss the Donathons’ 

petition, without prejudice, for lack of standing.

ALL CONCUR.

BRIEF FOR APPELLANT:

Ira Scott Kilburn

Salt Lick, Kentucky

BRIEF FOR APPELLEE:

W. Jeffrey Scott

Grayson, Kentucky