RENDERED: FEBRUARY 24, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0668-MR

RITA R. WHITE AND MARGARET 

SUE PARIS APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE DEANA C. MCDONALD, JUDGE

ACTION NO. 19-CI-503731

TIARA M. FOWLER AND PHILLIP 

FOWLER APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.

DIXON, JUDGE: Rita R. White and Margaret Sue Paris (collectively “the 

grandparents”) appeal the Jefferson Circuit Court’s order, entered March 23, 2021, 

denying them de facto custodian status. After careful review of the briefs, record, 

and law, we affirm. 
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BACKGROUND FACTS AND PROCEDURAL HISTORY

Tiara and Phillip Fowler are the parents of J.F. and T.F., born 2012 

and 2013, respectively. On December 16, 2019, White and Paris, the children’s

maternal grandmother and great-grandmother, filed a petition jointly seeking 

custody, parenting time, and/or visitation. A hearing on custody was held February 

19, 2021, during which the grandparents, the Fowlers, and the children’s former 

kindergarten teacher testified. While the grandparents maintain that the children 

have predominantly resided with them since birth, they limited their claim of de 

facto custodianship to August 1, 2016, through early January 2019. This 

timeframe includes a period – September 2017 to November 2018 – when Tiara 

and the children resided fulltime with them. 

Per the grandparents’ testimony, beginning August 1, 2016, they met

the children’s daily needs by bathing them, dressing them, cooking their meals, 

helping with homework, corresponding with their schools, and providing general 

care. They also assisted with school projects; helped prepare the oldest child for 

kindergarten; enrolled the youngest child in an early learning program; attended 

school activities, extracurricular events, a parent teacher conference, and all of the 

children’s medical appointments, which they also scheduled; and took the children 

on recreational outings throughout the year. Jointly, they paid for the children’s 

clothes, school supplies and activities, uniforms, extracurriculars, recreational 
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outings, and holiday and birthday celebrations, as well as the oldest child’s prekindergarten tuition. The grandparents assert that Tiara rarely bought anything for 

the children and never reimbursed them for their financial outlays despite their 

repeated requests. 

In support, the grandparents submitted into evidence: a calendar 

purporting to document the children’s day-to-day lives with the grandparents; 

photographs from the relevant time period showing the children with the 

grandparents, the children engaging in various activities, and the children’s rooms

and play areas in the grandparents’ house; detailed summaries of purchases made 

for the children with receipts; and three letters sent via mail and certified mail 

dated August and September 2016, from Margaret Sue to the Fowlers expressing 

her frustration with their financial support and care of the children. 

The grandparents admit that Tiara provided health insurance for the 

children and that she attended all of their medical appointments, some of their 

activities, and at least one parent teacher conference. They also acknowledge that 

Tiara saw the children, with Margaret Sue estimating that Tiara could have gone a 

week without seeing them, but never a month, and Rita estimating it was maybe 

twice a week for an hour or so at the house. The grandparents report that Phillip 

was routinely absent from the children’s lives. 
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Denying that the children ever stayed fulltime with the grandparents, 

Tiara explained that, during the week, her youngest child lived primarily with her

and the oldest split his time between the two households. With the exception of 

one week-long vacation with friends, Tiara never went more than three days 

without seeing the children. The Fowlers also testified that the children spent time 

with Phillip which, pursuant to the divorce decree, was set at one day during the 

week and every other weekend. Tiara acknowledges that the grandparents 

routinely cared for the children during weekdays, when they were not in school or 

daycare, and weekends while she worked. 

Tiara asserts she has always been active in her children’s lives and 

submitted photos of her and the children during the disputed period. She attended 

most of their practices, where she occasionally worked the concession stand or 

helped with coaching; she took the children to the amusement park, the zoo, 

baseball games, and the circus; and she attended all of their games, school plays, 

and parent teacher conferences. The children’s kindergarten teacher, who was 

involved with the family during the 2017-2018 school year, reported that Tiara 

came to a Mother’s Day event with the oldest child, attended two conferences, was 

responsive to issues, and chaperoned two field trips. 

Tiara opined that her parenting efforts were often stymied by the

grandparents who rejected the items she bought for the children and insisted upon 
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packing the children’s backpacks, doublechecking the homework with which Tiara 

assisted, and having the final say regarding the children’s outfits. Tiara believes 

the grandparents manipulated both her and the children by threatening to withdraw 

their assistance if things were not done their way and biasing the children against 

her home. Tiara concedes that at times she acquiesced to the grandparents’ wishes 

to keep peace and retain their help. 

As for finances, per the Fowlers’ testimony, Phillip regularly paid

child support which Tiara – whose own wages were being garnished as a result of 

bankruptcy proceedings – used to provide food, haircuts, and daycare for the

children. An exhibit purporting to document these transactions was admitted as 

evidence. Tiara also permitted Rita to claim one of the children as a tax deduction

as a partial repayment for a family trip to Disney. She admits that she only paid

the grandparents $300 in rent and that she did not intend to reimburse Margaret 

Sue for pre-kindergarten as she disputes that she ever agreed to be financially 

responsible for the expense. 

On March 23, 2021, the court entered an order finding that the 

grandparents had not satisfied their burden of proof to be designated de facto 

custodians pursuant to KRS1 403.270(1). After their subsequent motion to alter, 

1

 Kentucky Revised Statutes. 
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amend, or vacate the court’s order pursuant to CR2 59.05 was denied by order 

entered May 7, 2021, the grandparents timely brought this appeal. 

STANDARD OF REVIEW

We review a court’s findings of fact under the clearly erroneous 

standard and will only reverse if the findings are not supported by substantial 

evidence. CR 52.01; Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964). 

We review the court’s legal conclusions de novo. Nash v. Campbell County Fiscal 

Court, 345 S.W.3d 811, 816 (Ky. 2011). 

ANALYSIS

As an initial matter, the Fowlers request that we exercise our 

discretion and strike the appellant brief as non-compliant for its failure to include

the required statement, with reference to the record, demonstrating that the 

arguments raised therein are preserved for appeal. RAP3 32(A)(4); RAP 31(H)(1).

4

Given the important nature of child custody issues, we have opted to retain the 

brief. 

2

 Kentucky Rules of Civil Procedure. 

3

 Kentucky Rules of Appellate Procedure. 

4

 We note that the current rule, which was enacted after briefing was completed in this case, is 

identical in substance to the former rule, CR 76.12(4)(v). 
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We turn now to the merits of the appeal. KRS 403.270 (2018)5

provides in pertinent part: 

(1)(a) “[D]e 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 has resided with the person for . . . a 

period of one (1) year or more if the child is three (3) 

years of age or older[.]

(b) . . . 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[.]

The grandparents first argue that the court applied an erroneous 

burden of proof. In its order denying CR 59.05 relief, the court asserted that,

“[w]hile not specifically stated in the statute, it is presumed that parents fill the 

roles of primary caregiver and financial supporter. Thus, [the grandparents] have 

the burden of rebutting that presumption.” The grandparents maintain that the

articulated standard is not supported by the law, demonstrates bias, and deprived 

them of a fair hearing. In support, we are referred to two cases that pre-date KRS 

403.270 and, as admitted by the grandparents, deal with the separate legal issue of 

waiver of custody, as well as an unpublished opinion that does not address the 

question at issue. 

5

 The statute was amended in 2021 after these proceedings commenced. 
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While we do not endorse the court’s summation of the law, contrary 

to the grandparents’ contention, it is not without support. In applying KRS 

403.270, our courts have consistently recognized that parents have a superior, 

constitutionally protected right to the care, custody, and control of their children. 

Brumfield v. Stinson, 368 S.W.3d 116, 118 (Ky. App. 2012); see also Stanley v. 

Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972). 

Attendant with these rights, the common law “imposes a duty of responsibility on 

parents for the care, nurture[,] and upbringing of their children.” Smothers v. 

Baptist Hosp. E., 468 S.W.3d 878, 883 (Ky. App. 2015). Before a purported de 

facto custodian may be afforded the same standing as a parent, we have held that 

“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. In other words, one must literally stand in the place of the natural parent to 

qualify as a de facto custodian.” Brumfield, 368 S.W.3d at 118 (internal quotation 

marks and citations omitted). As the court’s statement is consistent with these 

principles and does not bias the grandparents’ position, we find no error. 

Moreover, as the court cited and applied the correct standard in the underlying 

order on appeal, the challenged language appearing only in the order denying CR 

59.05 relief, we conclude any error was harmless. CR 61.01. 
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Next, the grandparents raise various challenges to the court’s findings 

of fact regarding the support and care of the children; however, as we believe the 

latter is the determinative factor, we confine our analysis to that issue and do not 

reach their remaining arguments. Though the court acknowledged that the 

grandparents provided significant care to the children, it ultimately found that, 

through Tiara’s consistent actions, the Fowlers had not abdicated their role as the 

primary caregivers to the children. The grandparents concede this is consistent 

with the Fowlers’ testimony but contend the court’s reliance thereon is erroneous

given the wealth of evidence, both testimonial and documentary, which they 

presented. 

It is true that a court’s discretion to judge credibility is not boundless

and its determination will not be upheld if the testimony at issue is refuted by 

incontrovertible physical evidence or is otherwise inconceivable. See Potts v. 

Commonwealth, 172 S.W.3 345, 349-51 (Ky. 2005). However, the limit of a 

judge’s discretion is not implicated by the ordinary concerns of impaired 

perception, a motive to fabricate, or disputed facts. Id. Here, contrary to the 

grandparents’ assertion otherwise, the court’s decision falls within the latter 

category. 

Though the grandparents appear to have made every effort to 

document the children’s lives through calendars, pictures, and letters, this 
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evidence – which was prepared or interpreted by the grandparents and is neither 

impartial nor incontrovertible – is not of sufficient caliber to overcome the court’s 

determination of credibility. And, as explained by the Supreme Court of 

Kentucky, “[r]egardless of conflicting evidence, the weight of evidence, or the fact 

that the reviewing court would have reached a contrary finding, due regard shall be 

given to the opportunity of the trial court to judge the credibility of the witnesses.” 

Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation marks and 

citations omitted). Accordingly, we find no error. 

Finally, given the above, we need not reach the issue of whether KRS 

403.270 permits the grandparents to jointly seek de facto custodian status. 

CONCLUSION

Therefore, and for the forgoing reasons, the order of the Jefferson 

Family Court is AFFIRMED. 

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Dean H. Sutton

Louisville, Kentucky

BRIEF FOR APPELLEES:

Allison S. Russell

Louisville, Kentucky

John H. Helmers, Jr.

Louisville, Kentucky