RENDERED: FEBRUARY 25, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2021

- CA

- 0518

- ME
RITA STUMP APPELLANT

v. APPEAL FROM FLOYD CIRCUIT COURT

HONORABLE DWIGHT S. MARSHALL, JUDGE

ACTION NO. 20

- CI

- 00643

SHAWN TAYLOR SPENCER APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CALDWELL, MAZE, AND M c NEILL, JUDGES.
M c NEILL, JUDGE: Rita Stump (Stump) appeals from the order of the Floyd Family Court denying her motion to be appointed de facto custodian of Shawn Taylor Spencer ’ s children and dismissing her petition for custody. Finding no error, we affirm.- 2

- Stump is t he maternal grandmother of E.S. and B.S., the minor children of her late daughter 1 Sarah Stump and Shawn Taylor Spencer (“Spencer”). From April 2017 to October 2020, E.S. and B.S. resided primarily with Stump.
After Sarah ’ s death in October 2020, the chi ldren went to live with Spencer. On November 2, 2020, Stump filed a petition in Floyd Family Court seeking custody
of E. S. and B.S. Spencer moved to dismiss the petition for lack of standing and Stump filed a motion to be appointed de facto custodian.

At a hearing on the motion, Stump testified that from April 2017 until October 2020, she was the primary caregiver of the children. She bought most of
the children ’ s clothing, provided the children ’ s food, gave the children baths , and got the m ready in t he morning. She would also take E.S. to her speech therapy, although Sarah would sometimes accompany her to sign paperwork. Stump
testified that due to Sarah ’ s health issues, Sarah was incapable of taking care of
E.S. and B.S. Several witnesses, including Stump ’ s son and two of Sarah ’ s ex boyfriends, also testified that E.S. and B.S. lived with Stump

.

Stump stated that Sarah provided no financial assistance towards caring for the children. However, E.S. received S upplemental S ecurity I ncome for some period of April 2017 to October 2020

. Spencer was ordered to pay child support, but Stump testified she would only receive payments when his wages

1 Sarah Stump passed away in October of 2020 due to health issues.- 3

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were garnished. Occasionally, he would pay $150 of his $300 obligation, but it was sporadic. A big po rtion of Spencer ’ s child support came out of his taxes

.

Stump testified that Spencer exercised his visitation rights and saw the children every other weekend for the first year or so. While she claim ed Spencer ’ s visitation became less frequent over the next two years, text messages between Stump and Spencer, introduced by Spencer at the hearing, establish Spencer ’ s visitation with the children was regular and consistent throughout the period of April 2017 through October 2020. Stump ’ s son confirmed tha t Spencer regularly
exercised his visitation rights

.

Although Spencer did not testify at the hearing, t he text message s further show that Spencer was involved in caring and providing for the children during his parenting time. He mentions feeding and bathing the children, throwing a birthday party, potty training , and giving them medicine. He is also invested in
the children ’ s well

- being, frequently ask ing Stump to update him on the ir learning , and discussing their health and nutrition.

Following t he hearing, the family court entered findings of fact,
conclusions of law , and a judgment dismissing Stump ’ s petition for custody. The court found that Stump “ was the caregiver and financial supporter of the minor
children in conjunction with [Spencer].” It further found that Spencer “continued to exercise his role as the father of the minor children,” and “at no time advocated- 4

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[sic] t he role of primary caregiver and financial supporter of the minor children to [Stump].” This appeal followed.

“Upon rev iew of de facto custodian and child custody proceedings, this Court must determine whether the family court ’ s findings of fact are clearly
erroneous.” Lage v. Esterle , 591 S.W.3d 416, 420 (Ky. App. 2019) (citations omitted). “Our review of related legal issues and questions of law is de novo. ” Id. (citation omitted).

Stump raises two allegations of error on appeal: 1) the family court ’ s finding that Spencer was a primary caregiver was clearly erroneous and 2) the family court abused its discretion when it ruled she did not meet the requirements
of a de facto custodian. Because these allegations are closely related, we will analyze them together.

“Kentucky Revised Statutes ( “ KRS ” ) 403.270(1) requires a court to determine by clear and convincing evidence whether a person meets the statutory
definition of a de facto custodian.” Lage , 591 S.W.3d at 420

. Clear and convincing evidence is evidence that is “substantially more persuasive than

a preponderance of evidence, but not beyond a reasonable dou bt.” Vinson v. Sorrell , 136 S.W.3d 465, 468

- 6 9 (Ky. 2004) (citation omitted).

At issue is whether Stump established that she was the “primary caregiver” and “financial supporter” of E.S. and B.S. during the period of April- 5

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2017 to Oct ober 2020. 2 The f amily court ruled that Stump failed to show she was the primary caregiver and financial supporter of the minor children because she was parenting alongside Spencer. Thus, she did not qualify as a de facto custodian
under KRS 403.270(1)(a ) and Kentucky cas e law. We agree.

“Before the family court may find that a caregiver has become the

‘ de facto custodian ’ entitled to be placed on the same footing as a biological parent in a custody proceeding, the court must determine that the biological parent has
abdicated the role of primary caregiver and financial supporter of the child for the required period of time. ” Brumfield v. Stinson , 368 S.W.3d 116, 118 (Ky. App. 2012) (citation omitted). Further, “ in order to be a de facto custodian , the nonparent must not simply be a primary caregiver, but must, in fact,
be the primary caregiver. ” Jones v. Jones , 510 S.W.3d 845, 849 (Ky. App. 2017) (citation omitted).

“ Kentucky Courts have also repeatedly held that when a nonparent shares the parenting responsibilities with a natural parent, the nonparent cannot, as a matter of law, acquire de facto custodian status. ” Id. (citing Mullins v.
Picklesimer , 317 S.W.3d 569, 574 (Ky. 2010) (“[P]arenting the child alongside the natural parent does not meet the de facto custodian standard.”); Brumfield , 368

2 It is undisputed that the children resided with Stump for the requisite statutory period to establish de facto custodian status. See KRS 403.270(1)

.- 6

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S.W.3d at 118 (“[O]ur law is clear that even if a nonparent provides care and/or financial support for a child, if such is in conjunction with a natural parent, the nonparent will not qualify as a de facto custodian.”) ).

The facts of this case are like those in Burgess v. Ch ase , 629 S.W.3d 826 (Ky. App. 2021) , where a panel of this Court recently reversed a trial court ’ s finding of de facto custodian status. There, paternal grandmother a rgued that she
had been child ’ s primary caregiver and financial provider for 13 years. I d. at 828. Mother exercised her parenting time by caring for the child during school breaks.
Id. Grandmother alleged mother owed $47,000 in child support, but it was undisputed that mother had paid at least $1,000 from a tax return

. Id. Further,

m othe r testified that she made other informal child support payments but had no
documentation. Id. The trial court found that “[grandmother] had been Child ’ s primary caregiver and financial provider; and that [grandmother] had been Child ’ s

‘ acting parent ’ for nearly all of Child ’ s life [,]” and awarded de facto custodian status to grandmother. Id. at 830

.

The Court of Appeals reversed, explaining : Although Joyce generously provided care and financial support to Child for several years when Child and Jason were living with her, Samantha did not allow Joyce to stand in her place as Child ’ s parent nor did she abdicate her own role as primary caregiver and financial supporter. Instead, Samantha continued to exercise her right to parenting time under the joint custody decree and to make decisions and to provide for Child during her- 7

- parenting time

– in addition to providing some financial support for Child ’ s needs incurred in Kentucky. And Joyce thus provided care and financial support in conjunction with Samanth a. Thus, the family court failed to correctly apply the law in determining Joyce to be a de facto custodian under these facts.
Id

. Similarly, here, Spencer never abdicated his role as primary caregiver and financial supporter of E.S. and B.S. There was ample evidence that Spencer made decisions and provided for the children during his parenting time , which he exercised regularly . He further provided some financial support through his tax refund. While Stump clearly provided a great amount of care and financial support for the children, she was “ simply parenting Child [ren] alongside [Spencer] due to [Spencer] ’ s continuing to exercise [his] parenting time and to provide for and make
decisions for Child [ren] during such parenting time. ” Id. at 832

.

Stump was required by KRS 403.270(1)(a) to prove her claim “by
clear and convincing evidence [

. ] ” We cannot say the family court ’ s findings were clearly erroneous or that it abused its discretion in applying the law to the facts. Therefore, we cannot dist urb the family court ’ s order denying Stump de facto
custodian status.

For the foregoing reasons, the judgment of the Floyd Family Court is
affirmed.
ALL CONCUR.- 8

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BRIEF S FOR APPELLANT: Ryan D. Mos le y Prestonsburg, Kentucky BRIEF FOR APPELLEE:
Steven P. Bailey Prestonsburg, Kentucky