RENDERED: JULY 14, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0799-MR

DAVID LEMASTER APPELLANT 

v. 

APPEAL FROM GREENUP CIRCUIT COURT

FAMILY COURT DIVISION

HONORABLE JENNIFER BARKER NEICE, SPECIAL JUDGE

ACTION NO. 15-CI-00542

KENDRA STILTNER AND 

CHRISTOPHER CLAY STILTNER APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.

EASTON, JUDGE: The Appellant, David Lemaster (“David”), appeals from the 

Greenup Family Court’s denial of his motion to intervene in a custody action. The 

Appellee, Kendra Stiltner (“Kendra”), argues David did not have standing to 
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intervene because he could not be considered a de facto custodian under Kentucky 

law. Having reviewed the record and the applicable law, we affirm. 

FACTUAL AND PROCEDURAL HISTORY

 Kendra is the biological mother of the minor child, M.S., who was 

born in July 2012. At the time of M.S.’s birth, Kendra was married to Christopher 

Clay Stiltner (“Clay”), the biological father of M.S. When M.S. was born, both 

Kendra and Clay were under indictment for child abuse against one of Kendra’s 

older children. Because of this, the Cabinet for Health and Family Services 

(“Cabinet”) filed a Petition for Dependency, Neglect, or Abuse (“DNA”), alleging 

risk of harm to M.S.

Prior to the filing of the DNA petition, Kendra and Clay agreed, upon 

the recommendation of the Cabinet, for M.S. to be placed with Denise Stiltner 

(“Denise”), who was Clay’s mother. David was Denise’s long-term paramour, and 

they lived together. At the Temporary Removal Hearing during the DNA 

proceeding, the family court granted temporary custody of M.S. to Denise. 

The Adjudication Hearing was continued multiple times due to the 

ongoing criminal case. The DNA action was finally adjudicated on April 28, 2014. 

Kendra and Clay stipulated to neglect or abuse. They had pled guilty to amended 

misdemeanor charges in the criminal action. Due to their guilty plea and 

stipulation, the family court granted permanent custody of M.S. to Denise. 
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 On December 18, 2015, Kendra filed a Petition for Custody, listing 

Denise and Clay as Respondents. In April 2016, the family court granted Kendra 

supervised visits with M.S. Denise appealed this Order, which was affirmed by 

this Court in 2017.

1

 

In October 2018, Kendra filed a motion for sole custody of M.S., or,

in the alternative, for unsupervised parenting time. An Agreed Order was entered 

on February 13, 2019, in which custody remained with Denise, but Kendra was to 

have timesharing with M.S. The Agreed Order contained a plan to gradually 

increase Kendra’s time with M.S. and removed the supervision requirement. 

In May 2021, Denise filed a motion asking the family court to either 

suspend Kendra’s timesharing or to make it supervised, based upon an injury M.S. 

received on a trampoline while in Kendra’s care. Kendra filed a response, as well 

as her own motion to increase her time with M.S. Several continuances occurred 

based upon Denise’s health issues, issues of the parties’ counsel, and a special 

judge appointment due to the recusal of the previous judge. Before a hearing was 

held by the family court, Denise passed away on May 21, 2022. 

On May 23, 2022, David filed a Motion for Intervention and 

Emergency Relief. In this motion, David stated he had M.S. in his care but needs 

legal authority to make decisions. He asked the family court to grant him 

1

Stiltner v. Stiltner, No. 2016-CA-000679-ME, 2017 WL 1102978 (Ky. App. Mar. 24, 2017). 
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emergency custody of M.S. On May 27, 2022, Kendra filed a motion for custody, 

asking the family court to immediately restore custody to her. She additionally 

filed a response to David’s motion objecting to intervention. Kendra argued David 

had no standing to intervene. The family court scheduled an emergency hearing 

for May 31, 2022, at which it granted temporary custody of M.S. to Kendra. The 

family court set another hearing date for June 23, 2022.

 On June 1, 2022, David filed a Petition for Custody, claiming he is a 

de facto custodian of M.S., and alleging Kendra has waived superior custody and 

that she is unfit to have custody. He additionally filed a renewed Motion for 

Intervention and Emergency Relief. The family court heard these motions on June 

7, 2022. On that date, the family court overruled all of David’s motions and 

cancelled the hearing for later in June. 

David filed a Motion to Alter, Amend, or Vacate the family court’s 

oral ruling of June 7, which the family court overruled. A final written order was 

entered on June 21, 2022, memorializing the oral orders stated on June 7. In this

later order, the family court ruled David’s motion to intervene was untimely, and 

that he failed to allege any set of facts which would qualify him as a de facto

custodian of M.S. The family court ruled, pursuant to Burgess v. Chase, 629 

S.W.3d 826 (Ky. App. 2021), David could not qualify as a de facto custodian 

alongside Denise as she was the only one granted custody of M.S. 
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STANDARD OF REVIEW

We review a trial court’s order granting or denying intervention for 

clear error. A.H. v. W.R.L., 482 S.W.3d 372, 373 (Ky. 2016). “In general, a court 

is given broad discretion in determining whether or not one should be permitted to 

intervene.” Ipock v. Ipock, 403 S.W.3d 580, 583 (Ky. App. 2013). “The ‘clearly 

erroneous’ standard is sufficiently broad to permit the reviewing court to adopt a 

method of review which best fits the questions involved and the particular facts in 

a specific case. The appellate court should review each case according to what is 

most appropriate under the specific circumstances.” Reichle v. Reichle, 719 

S.W.2d 442, 444 (Ky. 1986).

We review a family court’s legal conclusions under the de novo 

standard. Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003). Whether a 

nonparent can be classified as a de facto custodian is a matter of law. Hoskins v. 

Elliott, 591 S.W.3d 858, 861 (Ky. App. 2019). “However, a court’s evaluation of 

the timeliness of a motion to intervene is reviewed under an abuse of discretion 

standard.” Hazel Enterprises, LLC v. Cmty. Fin. Servs. Bank, 382 S.W.3d 65, 67 

(Ky. App. 2012). A finding of fact, including timeliness, is clearly erroneous if not 

supported by substantial evidence, which is evidence sufficient to induce 

conviction in the mind of a reasonable person. Moore v. Asente, 110 S.W.3d 336, 

354 (Ky. 2003). 
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ANALYSIS

 We must determine if the family court erred in not allowing David to

intervene in this action. “Standing and intervention are two distinct concepts,” and 

standing to seek custody is not a condition for intervening in a custody action. 

A.H., supra at 374. 

The rules governing the ability to intervene in a proceeding are CR2

24.013and 24.02.

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 CR 24.01 gives the power to intervene by right if its mandates 

are met. CR 24.02 “provides trial courts with discretion to allow intervention in 

cases if the interest of the movant so warrants, even if the asserted interest fails to 

satisfy the dictates of CR 24.01[.]” A.H., supra at 375.

CR 24.01 states: 

(1) Upon timely application anyone shall be permitted to 

intervene in an action (a) when a statute confers an 

unconditional right to intervene, or (b) when the 

applicant claims an interest relating to the property or 

transaction which is the subject of the action and is so 

situated that the disposition of the action may as a 

practical matter impair or impede the applicant’s ability 

to protect that interest, unless that interest is adequately 

represented by existing parties.

CR 24.02 states: 

2 Kentucky Rules of Civil Procedure.

3

Intervention of Right.

4 Permissive Intervention. 
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Upon timely application anyone may be permitted to 

intervene in an action: (a) when a statute confers a 

conditional right to intervene or (b) when an applicant’s 

claim or defense and the main action have a question of 

law or fact in common. When a party to an action relies 

for ground of claim or defense upon any statute or 

executive order administered by a governmental officer 

or agency or upon any regulation, order, requirement, or 

agreement issued or made pursuant to the statute or 

executive order, the officer or agency upon timely 

application may be permitted to intervene in the action. 

In exercising its discretion the court shall consider 

whether the intervention will unduly delay or prejudice 

the adjudication of the rights of the original parties.

David does not specify under which rule he sought to intervene, but 

CR 24.01 is the proper rule for analysis in this case. “As compared to matter-ofright intervention in Rule 24.01, permissive intervention is more concerned with 

consolidating common legal and factual questions than with protecting the 

implicated rights of non-parties.” Bailey v. Bertram, 471 S.W.3d 687, 690-91 (Ky. 

2015), as corrected (Jun. 10, 2015). Regardless, under both rules, a motion to 

intervene must be timely. Therefore, we first examine whether David’s motion to 

intervene was timely. 

A court may consider the following factors to determine whether a 

motion to intervene was timely: “‘(1) [T]he point to which the suit has progressed; 

(2) the purpose for which intervention is sought; (3) the length of time preceding 

the application during which the proposed intervenor knew or reasonably should 

have known of his interest in the case; (4) the prejudice to the original parties due 
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to the proposed intervenor’s failure, after he or she knew or reasonably should 

have known of his or her interest in the case, to apply promptly for intervention; 

and (5) the existence of unusual circumstances militating against or in favor of 

intervention.’” Carter v. Smith, 170 S.W.3d 402, 408 (Ky. App. 2004) (quoting

Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)). 

The dispositive factor in this case is the third factor listed above, the 

length of time preceding the application during which the proposed intervenor 

knew or reasonably should have known of his interest in the case. This custody 

action was filed in December 2015. David did not move to intervene until May 

2022. Between the six and one-half years the case was pending, there were 

multiple motions, amendments to the custody orders, and even a completed appeal. 

 David was clearly aware of the action throughout the entire life of the 

case, as he was listed as someone who could provide care to M.S. by the Cabinet at 

the beginning of the DNA action, which occurred prior to the custody action. 

David offers no adequate explanation for his delay. He makes no argument that 

anyone other than himself is responsible for his delay in filing an intervention 

motion. He simply failed to do so as he was content to allow Denise to fight the 

custody battle until she no longer could do so.

Denise apparently began having serious health issues at some point 

between January and mid-March 2022. While we are uncertain as to the specifics 
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of Denise’s health issues, the record indicates it required hospitalization. At this 

point, David still did not see the need to intervene in the action. It was not until 

Denise had unfortunately passed away that he felt compelled to intervene. 

As to the remaining factors, there were no findings made regarding 

them, and little evidence presented concerning them. As far as the progression of 

the case, there were pending motions by both Kendra and Denise in this action. 

Family and custody cases are distinct from most other civil cases, in that “final 

judgments” can be amended pursuant to KRS5 403.270 or 403.340. This case had 

been ongoing for over six years. 

Regarding David’s purpose for intervention, there is no indication that 

David filed to intervene for any purpose other than to care for M.S. It appears 

from the record that David had acted in a caretaking role of the child and wished to 

continue to do so. There is no evidence of any improper motive on David’s part. 

As for prejudice to the original parties, allowing David to intervene 

would certainly prejudice Kendra. Throughout the years this custody action was 

ongoing, Kendra was pursuing custody of her child against Denise, and only 

Denise. Clay, while a named party as the child’s father, was not actively 

participating or attempting to regain custody of M.S. Adding another party against

whom Kendra must litigate for custody would certainly prejudice her.

5 Kentucky Revised Statutes. 
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Regarding “unusual circumstances,” David has no familial 

relationship to M.S. While he may have acted in a grandparent-like role, he was 

not related to M.S. by blood or by marriage. This circumstance tends to weigh 

against intervention. There are no other unusual circumstances weighing in favor 

or against mitigation. 

“Timeliness is a question of fact, which generally should be left to the 

circuit court.” Hazel Enterprises, supra at 68 (citing Ambassador College v. 

Combs, 636 S.W.2d 305, 307 (Ky. 1982)). The family court determined that,

under the circumstances of this case, David’s motion was untimely, and that he had 

more than adequate opportunity to intervene at a prior time. We do not find the 

family court’s finding to be clearly erroneous. Due to this untimeliness, the family 

court did not abuse its discretion in denying the intervention. 

The family court went further to state David alleged no set of facts 

which would qualify him as a de facto custodian of M.S. We will briefly address 

this conclusion. 

KRS 403.270 defines a de facto custodian as follows:

(1) (a) As used in this chapter and KRS 405.020, unless 

the context requires otherwise, “de facto custodian” 

means a person who has been shown by clear and 

convincing evidence to have been the primary 

caregiver for, and financial supporter of, a child who 

within the last two (2) years has resided with the 

person for an aggregate period of six (6) months or 

more if the child is under three (3) years of age and 
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for an aggregate period of one (1) year or more if the 

child is three (3) years of age or older or has been 

placed by the Department for Community Based 

Services. Any period of time after a legal proceeding 

has been commenced by a parent seeking to regain 

custody of the child shall not be included in 

determining whether the child has resided with the 

person for the required minimum period.

(b) A person shall not be a de facto custodian until a 

court determines by clear and convincing evidence 

that the person meets the definition of de facto 

custodian established in paragraph (a) of this 

subsection. Once a court determines that a person 

meets the definition of de facto custodian, the court 

shall give the person the same standing in custody 

matters that is given to each parent under this section 

and KRS 403.280, 403.340, 403.350, 403.822, and 

405.020.

David argues that because he and Denise had M.S. in their custody for 

most of her life, he should be determined to be a de facto custodian. His argument 

fails for several reasons. 

First, any time a parent is pursuing a case to regain custody of the 

child tolls the timing requirement. KRS 403.270(1)(a). “Any direct participation 

in a child custody proceeding that demonstrates a parent’s desire to regain custody 

of their child is sufficient to toll the de facto time requirement under KRS 

403.270.” Meinders v. Middleton, 572 S.W.3d 52, 59 (Ky. 2019). This includes 

working a case plan and cooperating in a DNA proceeding. Hoskins, supra at 862. 
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Likewise, once Kendra filed the current circuit action to regain custody of M.S., 

this tolled the time requirement. 

Permanent custody of M.S. was granted to Denise on April 28, 2014. 

Prior to that date, it appears from the record that Kendra and Clay both actively 

participated in the DNA proceeding and worked their case plan. Therefore, April 

28, 2014, is the date when Denise’s time would begin in calculating de facto

custodian status. Kendra filed her petition for custody in circuit court in December 

2015, over a year later. Taking those facts at face value, Denise would have 

qualified as a de facto custodian of M.S. at that time.

This does not mean David also obtained de facto custodian status. He 

was never granted legal custody of M.S. – only Denise was. Ultimately, a 

determination of whether David qualified as a de facto custodian of M.S. in 

December 2015 is not required. This Court has determined that de facto custodian 

status is not necessarily a permanent status. It must be addressed each time the 

status is asserted. See Sullivan v. Tucker, 29 S.W.3d 805 (Ky. App. 2000); Turner 

v. Hodge, 590 S.W.3d 294 (Ky. App. 2019).

Kendra sought to regain custody of M.S. beginning in December 

2015. David did not seek to intervene until 2022. In the meantime, Kendra and 

Denise (and Clay, to a lesser extent) participated in the custody action. We find no 

indication in the record of Denise ever asking the family court to designate her as 
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de facto custodian. Kendra obtained supervised visits in 2016. She later obtained 

unsupervised overnight visits in 2019. Therefore, even assuming Denise and/or 

David could have been designated as de facto custodians prior to 2016, that 

designation would have ceased in 2019 when Kendra became much more involved 

in M.S.’s care. 

David argues pursuant to Krieger v. Garvin, 584 S.W.3d 727 (Ky. 

2019), he should be able to be designated as M.S.’s de facto custodian because 

Denise met the requirements. The Kentucky Supreme Court in Krieger ruled that a 

grandparent and their long-term partner were not precluded from being a child’s de 

facto custodians simply because they were not married. But the facts of Krieger 

are distinguishable from the circumstances of this case. First, the appellants in 

Krieger pursued a custody action together after both were given temporary custody 

of the child in a DNA proceeding. Id. at 728. Additionally, both moved the circuit 

court to find them the child’s de facto custodians. 

David had never participated in the custody action prior to his 

attempted intervention. He was never named as a party and did not move to 

intervene for more than six years. David was never named in any court orders. 

While at some point Denise could have been designated a de facto custodian of 

M.S. had she asked the family court to do so, David was unable to meet the 

requirements at the time he sought to intervene.
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Much like the trial court’s discretion to allow intervention of a party, 

the trial court also has wide discretion in considering a party’s motion to amend a 

pleading. First Nat’l Bank of Cincinnati v. Hartman, 747 S.W.2d 614, 616 (Ky. 

App. 1988). In Hartman, this Court stated that one factor a court may consider in 

deciding whether to allow an amendment is futility. Id. We believe this factor is 

also applicable when considering intervention. Because David could not meet the 

definition of de facto custodian, allowing his intervention would have been futile. 

For this reason, it was certainly not an abuse of discretion for the family court to 

decline David’s request for intervention. 

CONCLUSION

The family court’s findings of fact are supported by the evidence and

not erroneous. The family court committed no error of law and properly acted 

within its discretion. The Greenup Family Court is AFFIRMED. 

ALL CONCUR. 

BRIEF FOR APPELLANT:

Brandon M. Music

Grayson, Kentucky

BRIEF FOR APPELLEE KENDRA 

STILTNER:

Robert T. Renfroe

Greenup, Kentucky